State v. Smith

Decision Date27 May 1891
PartiesSTATE ex rel. CLARK v. SMITH, Clerk County Court.
CourtMissouri Supreme Court

SHERWOOD, C. J., dissenting.

In bank.

Petition for mandamus by R. F. Clark to compel P. R. Smith, clerk of the county court, to issue to him a certificate of election to the office of prosecuting attorney. The petition was previously denied, (15 S. W. Rep. 614,) and the decision now rendered is on relator's motion for rehearing. Const. Mo. art. 8. § 3, provides that, in all cases of contested elections, the ballots may be recounted. Rev. St. § 4710, provides that the court trying such contest shall determine it in a summary manner, without any formal pleading, at the first term that shall be held 15 days after the official counting of the votes. One John Sturgis had received a certificate of election, and was exercising the office. It was claimed by relator that the service of notice of contest upon the other candidate did not render the action pending.

W. Cloud and Adiel Sherwood, for relator. George Hubbert and M. E. Benton, for respondent.

MACFARLANE, J.

The return of respondent to the alternative writ, after special denials of the statements thereof in regard to the result of the election for which relator was a candidate; his refusal to certify the result of the election, and that he falsified the same; and after giving a detailed statement of the manner in which he had performed his duties, as clerk, in canvassing the vote, — made the following special plea in bar to the writ: "On the 25th day of November, 1890, the relator, R. F. Clark, gave and delivered to the said John F. Sturgis notice of contest of his said election to said office, specifying the grounds upon which the said Clark, as contestant, intends to rely, raising objections to the vote in Sturgis' favor in all the voting precincts, and making objection to the qualification of divers voters at said election, and giving the names of such voters, and stating the objections therein; which said notice was served fifteen days before the May term, 1891, of the circuit court of said Newton county at which said election will be contested. The contest so begun by the relator herein is still pending. The writ in this cause, to-wit, the alternative writ of mandamus, was issued by this court upon relator's petition therefor on the 26th day of November, 1890, and was served on defendant on the 28th day of November, 1890." The return further showed that on the 6th day of November, 1890, respondent completed the canvass of the vote of said county, and before the issuance of the writ herein had certified the result thereof to the secretary of state; and on the 14th day of November, 1890, the said Sturgis had been duly commissioned by the governor as prosecuting attorney of said county. The remedy by mandamus will only be allowed against a public officer in case the one claiming its benefits shows himself to be directly interested in the performance of the thing demanded, and that he has no other adequate, specific, and effective remedy at law by which he may obtain the result sought. The ultimate result sought to be accomplished by relator, under this proceeding, was to determine, as between himself and Sturgis, which was, on the face of the returns of the judges and clerks of the various voting precincts, elected to the office of prosecuting attorney of the county. The writ shows, and the return admits, that relator has such a direct interest in the proper canvass of the vote by the county clerk as authorizes him to invoke this remedy, and a peremptory writ...

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35 cases
  • State v. Valliant
    • United States
    • Missouri Supreme Court
    • December 4, 1894
    ... ... 28 S.W. 588 ... courts have no jurisdiction over it, or do not proceed therein according to the rules of the common law." 1 Tidd, Pr. (4th Am. Ed.) 398; Goodright v. Dring, 2 Dowl. & R. 407; Cross v. Smith, 2 Ld. Raym. 836; Com. Dig. (4th Ed.) tit. "Certiorari." In Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. loc. cit. 308, it is said: "We have no statute in this state regulating the practice in proceedings by certiorari, and are to look to the common law for a guide in such ... ...
  • The State ex rel. Case v. Seehorn
    • United States
    • Missouri Supreme Court
    • July 12, 1920
    ... ... determines its jurisdiction on the facts before it. State ... ex rel. v. Mills, 231 Mo. 500; Coleman v ... Dalton, 71 Mo.App. 24; State ex rel. v. Sea, 23 ... Mo.App. 623; State ex rel. v. Johnson, 266 Mo. 671; ... State ex rel. v. Jones, 155 Mo. 576; State ex ... rel. v. Smith, 104 Mo. 424; Holland v. Railroad ... Co., 134 Mo. 479; Smith v. Perryman, 272 Mo ... 375; Cole v. Ricketts, 111 Mo.App. 105; Hammond ... v. Darlington, 109 Mo.App. 333. In the instant case the ... statute itself provides the method of procedure by way of ... appeal. Laws 1913, p ... ...
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    • United States
    • Missouri Supreme Court
    • February 26, 1906
    ... ... Marney, 1 Mo. 537; Little v. Little, 5 Mo. 227; ... Davis v. Wood, 7 Mo. 162; Doann, King & Co. v ... Boley, 38 Mo. 449; Jump v. Batton's ... Creditors, 35 Mo. 197; Hansford v. Hansford, 34 ... Mo. 263; Williams v. Munroe, 125 Mo. 574; Smith ... v. Hackley, 44 Mo.App. 614; Horton v. Railroad, ... 26 Mo.App. 349; Burrill's Law Dictionary, under head ... "Process"; Curtis v. McCollough, 3 Nev ... 210; Gilbraith v. Kuykendall, 1 Ark. 50; Staten ... v. Newcomer, 6 Ark. 451; Gorman v. Steed, 1 ... W.Va. 13; Beech v ... ...
  • State ex rel. Schneider v. Bourke
    • United States
    • Missouri Supreme Court
    • December 18, 1935
    ... ... Gazzalo v. Hudson, 13 Mo.App. 61; ... State ex rel. Cusack Co. v. Shinnick, 232 S.W. 1053 ... The deficiencies of the alternative writ and the petition are ... not cured because appellants have the right to set up ... deficiencies in their answer. State ex rel. Glen v ... Smith, 129 Mo.App. 49. Because the alternative writ is ... bad in that it omits alleging all necessary facts. Sec. 9113, ... R. S. 1929; State ex rel. Douglas v. Reynolds, 209 ... S.W. 100; Hambleton v. Dexter, 89 Mo. 188. (2) ... Mandamus will not lie. (a) Because there is an appropriate ... remedy ... ...
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