State ex rel. Adamson v. Cnty. Court of Lafayette Cnty.

• Decision Date: 31 October 1867
• Parties: THE STATE OF MISSOURI ex rel. THOMAS ADAMSON, Plaintiff, v. THE COUNTY COURT OF LAFAYETTE COUNTY, Defendant.
• Court: Missouri Supreme Court

41 Mo. 545

THE STATE OF MISSOURI ex rel. THOMAS ADAMSON, Plaintiff,

v.THE COUNTY COURT OF LAFAYETTE COUNTY, Defendant.

Supreme Court of Missouri.

October Term, 1867.

Petition for Mandamus.

The petition of Thomas Adamson, the plaintiff, respectfully represents, that at a general election held in the county of Lafayette, in the State of Missouri, on the 6th day of November, A. D. 1866, he was regularly and legally elected and chosen sheriff of the said county of Lafayette, having received a majority of all the legal votes cast for candidates for that office; that a certificate of election was issued to him, and that afterwards, to-wit, on the 3d day of January, 1867, the Governor of said State issued and delivered to him a commission, dated the day and year last aforesaid, under the great seal of the State, with the attestation of the Secretary of State, whereby plaintiff was commissioned sheriff within and for the county aforesaid for the term of two years.

Plaintiff further states that in due time before his said election he took, subscribed and filed his oath of loyalty as required by law, and after his election, upon the receipt of said commission, took, subscribed and endorsed on said commission the oath of office prescribed by law, and filed in the clerk's office of said County Court, the same not then being in session, a good and sufficient bond with sureties as ex officio collector of said county, which said bond was approved by the justices who then composed said County Court and by the clerk thereof in vacation.

Plaintiff further states, that, since the receipt of said commission and approval of his bond as aforesaid, he acted as and discharged the duties of sheriff and collector of said county until about July 9, 1867, as hereinafter set out.

Plaintiff further states, that at a term of said County Court, which was then and is now composed of Jesse Schofield, N. W. Sitton, and William L. Thomas, justices thereof, begun and held within and for the county aforesaid on the 6th day of May, A. D. 1867, and on the 14th day of said term, being the 24th day of May, 1867, the following proceedings were had and order made by said court, to-wit:

“Whereas, it appears to the court here that the State and county revenue of Lafayette county for the year 1867 will amount to the sum of about eighty-five thousand dollars, and it further appearing to the court here that Thomas Adamson, who now assumes to act as sheriff of the said county of Lafayette by virtue of a commission issued by the Governor of the State of Missouri, has failed to execute a bond as collector of the revenue as by law the sheriff is required to do, it is by the court ordered that said Thomas Adamson be notified that he is required to execute a bond as collector of the revenue of said county in the penal sum of one hundred and seventy thousand dollars, with good and sufficient security, conditioned as the law requires; and that he be required to exhibit and produce such bond to this court for its action thereon within ten days after he shall be served with a copy of this order. And it is further ordered that a copy of this order be served on the said Thomas Adamson forthwith, and that a copy of the adjourning order of this court, when made, be also served upon said Thomas Adamson immediately after the adjournment of said court.”

Plaintiff further states that on the 25th day of May, 1867, said court adjourned to the 3d day of June, 1867, and that copies of the foregoing order and of the order of adjournment were served upon him.

Plaintiff further states that on said 3d day of June, A. D. 1867, he appeared before said court, then in open session, and produced, exhibited and offered for approval his bond as collector of the revenue aforesaid, with good and sufficient sureties in the penal sum of one hundred and seventy thousand dollars, and conditioned as required by law, which said bond plaintiff now exhibits to this honorable court.

Plaintiff further states, that, anticipating unfair and unjust action on the part of said court, the judges whereof are personally and politically hostile to him, he took extraordinary pains in procuring sureties. He alleges that thirty-five well known and responsible citizens of Lafayette county, who are owners of real estate situate therein, became his sureties in said bond, and as such executed the same, he having first executed it as principal; and he further alleges and offers to prove to this honorable court, that the said sureties are owners of real estate in said county of the value of at least three hundred thousand dollars, subject to execution, over and above their debts and liabilities. He avers also that this fact was and is well known to the justices of said County Court.

But plaintiff further states, that, notwithstanding the premises, the said court, actuated by malice and by a determination to deprive him of his said office through a corrupt, arbitrary and illegal use of the forms of law, rejected and refused to accept said bond, and also refused to allow plaintiff to prove the sufficiency and responsibility of his sureties.

The plaintiff further states that on the 6th day of June, A. D. 1867, said County Court, in order to carry out its malicious, arbitrary, corrupt and illegal intention and determination, made and adopted an order as follows, viz: “It appearing to the court that Thomas Adamson has failed to execute bond as collector as required by law, and it further appearing that the time fixed by the statute for the execution of such bond has expired, and that more then ten days has elapsed since said Adamson has been notified and required by the court to execute said bond conditioned according to law, and said Adamson having failed to execute his bond as collector, said office has become and is in law vacant, and the court finds that the office of sheriff and collector for the county of Lafayette is by operation of law vacant in consequence of said Thomas Adamson failing to execute his bond as collector of said county within the time and in the manner required by the statute in such cases made and provided; and it is further ordered that the coroner of said county be notified of said vacancy, and required to act as sheriff until such vacancy is filled.”

The plaintiff alleges that the recitals and statements in said order, that he had failed to execute the bond required, are false and untrue, and that they were so known to be by said court; that said court made said recitals and statements with the corrupt intent to deprive the plaintiff of his said office in defiance of law and justice, and of the expressed will of the majority of the legal voters of Lafayette county; that he executed and tendered to said court a good and sufficient bond conditioned according to law with ample security for his performance thereof as aforesaid, and that the action of said court respecting the same was not the exercise of the discretion lawfully pertaining to its ju dicial functions, but was the corrupt, arbitrary and illegal action of the justices thereof, sitting as a court and using its forms to oppress, and unjustly and illegally deprive plaintiff of his said office.

The plaintiff further states, that, to carry out the malicious, oppressive and illegal designs and determinations as aforesaid, said County Court ordered a special election to be held in Lafayette county on the 9th day of July, 1867, to elect and choose a sheriff for said county of Lafayette, and on said 9th day of July, 1867, caused poll-books to be opened at the different voting precincts in said county, at which divers persons cast votes for a sheriff for said county as if there had been a vacancy in said office, and as if said election had been lawfully ordered; whereas, in fact, the plaintiff alleges that he was then and still is of right the sheriff of said county of Lafayette, that there was no vacancy in said office, and that said election was fraudulent, null and void.

Plaintiff further states that after said pretended election was held, the said justices of said County Court ordered the clerk thereof to issue a certificate of election to one James M. Poule, certifying that he had been duly elected sheriff of said county, which said certificate was false and was known so to be by said justices, and was by them so ordered to be issued for the purpose and with the intent of oppressing the plaintiff as aforesaid.

The plaintiff further states, that the Governor of the State refused to recognize said certificate of election and refused to issue a commission thereupon to said James M. Poule; that upon said refusal said justices illegally ordered the coroner of said county to perform and discharge the duties of sheriff thereof, and that he obeyed said order, and is now wrongfully usurping the said office of sheriff and preventing the plaintiff from exercising the functions thereof.

The plaintiff further states that he is remediless in the premises by or through ordinary process or proceedings at law, and he therefore prays this honorable court to award against said County Court a writ of mandamus commanding and requiring it to accept and approve said bond, and to vacate and annul all of the orders aforesaid, and to recognize the plaintiff as the lawful sheriff of said county: and for such other process, orders, and remedies, as may to the court seem meet.

Demurrer to Petition and Writ.

For answer and return to said writ the defendant demurs to the petition and writ of the plaintiff in the above case, and assigns the following causes of demurrer, to wit:

1. Said petition and the matters and things therein as stated and set forth are not sufficient in law or equity to entitle the plaintiff to the relief asked for in said petition, or to authorize the issuing of said writ of mandamus.

2. Said petition does not state or show that the plaintiff ever executed bond to the satisfaction of the County Court, within the time prescribed by the statute in such ...