State ex rel. Francis v. Dillon

• Decision Date: 31 October 1885
• Citation: 87 Mo. 487
• Parties: THE STATE ex vel. FRANCIS v. DILLON et al.
• Court: Missouri Supreme Court

87 Mo. 487

THE STATE ex vel. FRANCIS

v.DILLON et al.

Supreme Court of Missouri.

October Term, 1885.

Prohibition.

WRIT AWARDED.

Hough, Overall & Judson for relator.

(1) The general assembly has made no provision for contesting elections to municipal offices. (2) If Revised Statutes, section 5528, was intended to apply to contests for municipal offices in the city of St. Louis, it is unconstitutional. Const., art. 8, sec. 9. (3) Assuming that the office of mayor is a “county office,” still the circuit court cannot hear a contest of relator's right to hold the office, as no sufficient notice of contest was served. Section 5528, Revised Statutes, 1879, provides that “no election of any county or township officers shall be contested, unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted.” The notice here required is a legal notice, and serves the double purpose of writ and declaration--that is, it brings the party before the court, and contains the allegations to be tried and determined. Vance v. Gaylor, 25 Ark. 32; Castello v. St. Louis Circuit Court, 28 Mo. 264-5. What is termed a notice by respondent, Ewing, is nothing more than a protest against relator's right to hold the office of mayor.

Broadhead & Haeussler also for relator.

(1) The circuit court has no jurisdiction to try and determine a contested election for the office of mayor of the city of St. Louis. Const. of Mo., art. 8, sec. 9; R. S., secs. 5528, 5563 and 3126. There is a marked distinction between counties and municipal organizations proper, such as cities and towns. Const., art. 9, sec. 1; Hamilton Co. v. Mighels, 7 Ohio St. 109; State ex rel. Burden v. Walsh, 69 Mo. 412. (2) If that portion of section 5563, which declares “that the provisions of this chapter shall be applicable to the city of St. Louis, the same as to counties,” was intended to be applied to the provisions of section 5528, relating to election contests for city officers, then it is to that extent clearly unconstitutional. It is a special law as defined by this court in the case of the State ex rel. Harris v. Herman, 75 Mo. 340. (3) The clause of Revised Statutes, section 5563, which declares that the provisions of the chapter-- i. e., of the one entitled “Of Elections”--shall be applicable to the city of St. Louis the same as to counties, etc., does not apply to officers not elected on the first Tuesday in November, or to any officers not mentioned or provided for in the act. (4) The notice of contest in this case was insufficient. Applegate v. Eagan, 74 Mo. 265; Alcock v. Lecompt, 66 Mo. 42.

A. R. Taylor, Dyer, Lee & Ellis and G. D. Reynolds for respondents.

(1) The city of St. Louis is included in the provisions of section 5528 of Revised Statutes, which declares: “That the several circuit courts shall have jurisdiction in cases of contested elections for county officers, and the county courts in contests of township officers.” R. S., sec. 3126, clauses 18 and 19; State ex rel., etc., Troll v. Hudson, 78 Mo. 302; State ex rel., etc., v. Mason, 77 Mo. 189. (2) The notice of the contest is in exact compliance with the statute. R. S., sec. 5532.

BLACK, J.

Mr. Francis received a certificate of election for the office of mayor of the city of St. Louis, at the April election, 1885. Mr. Ewing seeks to contest that election. The question presented for decision by this application for a writ of prohibition is, has the St. Louis circuit court jurisdiction to hear and determine election contests for that office?

Section nine of article eight of the constitution, is as follows: “The trial and determination of contested elections of all public officers, whether state, judicial, municipal or local, except governor and lieutenant governor, shall be by the courts of law, or by one or more of the judges thereof. The general assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried and regulate the manner of trial, and all matters incidental thereto. * * *” Whether the legislature has performed the duty thus imposed upon it, as to this class of election contests, depends mainly upon the proper construction and application of the following provisions of the Revised Statutes of 1879, section 5528: “The several circuit courts shall have jurisdiction in cases of contested elections for county officers, and the county courts in contests of township officers,” etc.

Sec. 5563: “Except as otherwise provided by law, the provisions of this chapter shall be applicable to the city of St. Louis the same as to counties, and the duties imposed on officers in counties shall likewise be imposed on the corresponding officers of said city.”

Sec. 3126, par. 19: “Whenever the word ‘county’ is used in any law general in its character to the whole state, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.”

Now the contention of the relator must be that the words ‘ county officers,’ in section 5528, by force of the other named sections, include, and also mean, city officers of the city of St. Louis. Chapter 101, of which sections 5528 and 5563 are a part, relates alone to elections. It provides for a general election to be held in November of designated years, in each township in the state, and ward in the city of St. Louis, for the election of state officers at large, members of congress, senators, representatives, and other state officers, generally designated county officers, and such other officers as may be required by law to be elected. Besides the section before noted, other provisions are made for contesting the election of various of these officers, including judges of the different courts. No mention is made of city officers, lest it be, as contended, in section 5563, which is the last section of the chapter. By virtue of section one, article two, of the charter, the city of St. Louis, in April, of designated years, elects...