State ex rel. Kent v. Olenhouse

• Decision Date: 06 December 1929
• Docket Number: 29951
• Parties: The State ex rel. S. B. Kent v. Leonard T. Olenhouse and T. J. Anderson, Members of Township Board of Chillicothe Township, Livingston County
• Court: Missouri Supreme Court

23 S.W.2d 83

324 Mo. 49

The State ex rel. S. B. Kent v. Leonard T. Olenhouse and T. J. Anderson, Members of Township Board of Chillicothe Township, Livingston County

No. 29951

Supreme Court of Missouri

December 6, 1929

Alternative writ quashed.

Davis & Ashby for plaintiff.

(1) Among the township officers to be elected at the biennial election are a township trustee and two members of the board. Sec. 13181, R. S. 1919. (2) Section 13190, provides that the person elected to the office of trustee and ex officio treasurer shall take the oath of office as trustee and ex officio treasurer and the persons elected members of the township board shall take the oath of office as such members. (3) Section 13192 provides that a person elected to the office of trustee and ex officio treasurer shall execute and deliver a bond to the township clerk to the satisfaction of said clerk within ten days after his election or appointment and before he enters on the duties of that office. (4) Section 13198 provides that "when any vacancy shall happen in any township office from any cause, it shall be lawful for the township board to fill such vacancy by appointment provided, that any vacancy in the office of justice of the peace or in the township board shall be filled by appointment of the county court." (5) Section 13212 provides that "there shall be a board of directors composed of the township trustee and members of the township board." (6) This is a proceeding to compel a board whose duty it is to appoint a trustee to proceed to exercise that duty, and not a proceeding to oust a claimant for that office. Even should there be a de facto trustee the writ of mandamus lies to compel the legally constituted authority to proceed to the appointment of a de jure officer. (7) The appointee of the county court is neither a de facto nor a de jure officer. State ex rel. v. Miles, 210 Mo. 217; Sec. 13198, R. S. 1919. (8) Defendants in their returns to the alternative writ admit the facts therein stated and plaintiff is entitled to judgment on the pleadings.

Jos J. Shy, Kitt & Marshall and Chapman & Chapman for defendant, Leonard T. Olenhouse.

(1) This proceeding is nothing more than an indirect attempt to determine the title to the office of trustee of Chillicothe Township, and the writ should not be granted. State ex rel. Police Commrs., 80 Mo.App. 206; State ex rel. Guinon v. Miles, 210 Mo. 127. (2) If the township board has the power to appoint a township trustee, then plaintiff seeks to have this court issue its writ of mandamus in an attempt to control the discretion of the township board and therefore it should not be granted. State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. West, 272 Mo. 204. (3) This writ of mandamus to compel the township board to meet and select a trustee would be a futile act, because the court could not compel the members of the board to agree on same person. Spelling, Extraordinary Relief, sec. 1377; Atty. Gen. v. City Council, 111 Mass. 90. (4) Section 13198 shows the legislative policy is that vacancies in the members of the board of directors of the township (or township board) shall not be filled by the board. (5) Section 13198 was passed to avoid just such situations as now exist in this case. That is, where there is a vacancy on the township board and the two remaining members of the board are of opposite political parties they are not likely to agree as to the person to be appointed, but if the appointment rests with the county court, with three members, two of them are always likely to be of same political faith, then no deadlock as to the appointment could exist. (6) The township trustee as trustee is a member of board of directors of the township, and as ex officio treasurer he has charge of the disbursement of township funds. Secs. 13212, 13223, R. S. 1919. (7) Section 13181 provides for the election of township officers, including one trustee, and two members of the board. Section 13212 provides that the trustee shall be a member of the township board of directors, and Section 13198 provides for the filling of vacancies in township offices and that vacancies in the township board shall be filled by the county court.

Frank, J. All concur, except Walker, J., absent.

OPINION

FRANK

This is an original proceeding in mandamus in this court. The petition alleges in substance that relator is a taxpaying citizen of Chillicothe Township, Livingston County Missouri, that on March 26, 1907, said county adopted the provisions of the township organization law and ever since said date has been under township organization; that on March 26, 1929, one M. E. Conway was elected to the office of trustee of said township, and defendants, Leonard Olenhouse and T. J. Anderson, were elected members of the board; that they each qualified and entered upon the discharge of the duties of their respective offices; that on May 3, 1929, said M. E. Conway died, thereby causing a vacancy in the office of trustee; that it was the statutory duty of defendants, Olenhouse and Anderson, as members of the township board, to fill the vacancy in the office of trustee by appointing a successor to said M. E. Conway, and to organize said board by the election of a president thereof, all of which, although often requested, they have failed and refused to do; that on account of their failure to fill said vacancy and organize said board, the funds of the district are not available to carry on the schools, repair the roads and defray other expenses of the district.

The prayer of the petition is that an alternative writ of mandamus be issued commanding said defendants to fill the vacancy in the office of trustee by appointing a successor to said M. E. Conway and to organize the township board by the election of a president thereof, and for such other relief as to the court might seem proper.

An alternative writ was issued in accordance with the prayer of the petition, to which each defendant made a separate return. The gist of defendant Anderson's return is that he has at all times been, and now is, ready and willing as a member of the township board to fill the vacancy in the office of trustee, to organize the township board by the election of a president thereof, and to proceed with the transaction of the business of the township, but that defendant Olenhouse has always refused and still refuses to join him in such action; that on the day of August, 1929, he and defendant Olenhouse held a meeting for the purpose of organizing said board; that at said meeting, in an honest attempt to comply with the alternative writ, he nominated defendant Olenhouse for president of the board, but said Olenhouse refused to accept the office, and nominated for said office one Joseph T. Winans, whom the County Court of Livingston County had theretofore attempted to appoint as trustee for said township; that said Winans had never attempted to discharge any of the duties of the office of trustee or of member of the township board of directors; that at said meeting this defendant moved to take up the appointment of a trustee, but defendant Olenhouse refused to do so. The prayer of the return is that a peremptory writ of mandamus issue and that the costs be taxed against defendant Olenhouse.

The return of defendant Olenhouse admits that relator is a taxpaying citizen of Chillicothe Township; that Livingston County is under township organization; that defendants are two of the members of the township board, and that the death of M. E. Conway caused a vacancy in the office of trustee of the township and in the membership of the board of directors. After making these admissions, the return further alleges:

"That after the death of M. E. Conway, causing said vacancy in the offices aforesaid, the said Leonard T. Olenhouse consulted with attorneys and was advised that the power to appoint a trustee was with the County Court of Livingston County Missouri; that thereafter on May 27, 1929, the County Court of Livingston County, Missouri, as provided by law, did appoint and issue a commission to Joseph F. Winans to fill the office of trustee and member of board of directors of Chillicothe Township aforesaid. That said appointment of said Joseph F. Winans was duly certified to and notice thereof given to the township clerk of Chillicothe Township. That the said Joseph F. Winans is and was at all time, herein mentioned a citizen taxpayer, and qualified voter of Chillicothe Township, Livingston County, Missouri, and possesed all the qualifications required by law to fill the office of township trustee and member of the board of directors of said Chillicothe Township aforesaid. That thereafter the said Joseph F. Winans, within the time required by law, took the oath of office and procured a bond in the penal sum of $ 50,000, signed by sureties owning sufficient real property to qualify them as such, and as provided by law said Joseph F. Winans presented said bond for approval to N. B. Gill, clerk of the board of directors of said township aforesaid, and said N. B. Gill refused to approve or file said bond, stating at the time that he did not refuse to approve and file said bond because it was not sufficient or not in proper form, but because said Joseph F Winans was illegally appointed to said office by the County Court of Livingston County, Missouri. That thereafter on or about the 8th day of June, 1929, at a meeting of said township board, Joseph F. Winans tendered his bond to said board and asked that it be approved, but said T. J. Anderson refused to vote on the matter and the clerk of said board refused to make a minute of his tender. That on the 8th day of August, 1929, the board of directors of said township, Leonard T. Olenhouse and T. J. Anderson, met at the office...