Boggess v. Pence, Nos. 46953

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDALTON
Citation321 S.W.2d 667
Docket Number47204,Nos. 46953
Decision Date09 March 1959
PartiesJames Collier BOGGESS, Appellant, v. Robert J. PENCE, Mayor, et al., Respondents. Petition of the MAYOR, COUNCILMEN AND CITIZENS OF the CITY OF LIBERTY, Missouri, for a pro forma decree, etc., Respondents, v. James Collier BOGGESS et al., Appellants.

Page 667

321 S.W.2d 667
James Collier BOGGESS, Appellant,
v.
Robert J. PENCE, Mayor, et al., Respondents.
Petition of the MAYOR, COUNCILMEN AND CITIZENS OF the CITY
OF LIBERTY, Missouri, for a pro forma decree,
etc., Respondents,
v.
James Collier BOGGESS et al., Appellants.
Nos. 46953, 47204.
Supreme Court of Missouri, En Banc.
March 9, 1959.

Page 668

Richard Watson, North Kansas City, for William R. Riggs.

Rufus Burrus, Independence, for James Collier Boggess.

William E. Turnage, City Atty., Liberty, Robert B. Fizzell, Robert B. Fizzell, Jr., Stinson, Mag, Thomson, McEvers, & Fizzell, Kansas City, for respondents.

DALTON, Judge.

Causes Nos. 46,953 and 47,204 have been consolidated on appeal, because both appeals involve a common issue in that the validity of different ordinances of the same municipal corporation are questioned on the same ground, to wit, that one of its councilmen was not legally elected to his said office under the charter of said city. Appellants claim that all of the acts of the city in which this particular individual participated as a councilman (including the matters in question) are 'illegal, unlawful, void and of no effect.'

Cause No. 46,953 is an appeal by plaintiff-appellant James Collier Boggess from a judgment of the circuit court of Clay County dismissing his second amended petition for a declaratory judgment filed against Robert J. Pence and the Mayor, Councilmen and Citizens of Liberty, Missouri, the latter, a municipal corporation acting under a special charter from the state, and also known as the City of Liberty, Missouri. The petition was dismissed on motion for failure to state a claim upon which relief could be granted. The relief sought by appellant was that defendants be required to show what right and title defendant Robert J. Pence had to the office of city councilman of said city for the fourth ward; that the court determine the right of defendant Pence to hold said office; that, if the court found he was not legally elected to said office to declare him a usurper and not entitled to act therein; that he be enjoined from acting as such councilman; that all of the acts of the city in which said defendant has participated be declared illegal, unlawful, void and of no force and effect; and, particularly, that a certain ordinance of the city council of said city 'accepting the jury award for the condemnation of this plaintiff's property, and of appropriating the sum of $52,000 for the payment of the award be * * * examined and declared unlawful, void and of no force or effect' (see case No. 46,882 pending on appeal in Division No. One of this court) and for other equitable relief against the mayor, city clerk and city treasurer of said city to prevent action under the mentioned ordinance.

Cause No. 47,204 is an appeal by intervenors-appellants James Collier Boggess and William R. Riggs from a final judgment in a proceeding instituted by the city of Liberty, Missouri, for a pro forma decree authorizing the issuance and adjudicating the validity of $757,000 principal amount of water revenue bonds of said city. The judgment entered by the circuit court of Clay County found the bonds to be valid and legally binding obligations of the city and approved the proceedings of the city with reference to the issuance of the said bonds. Appellants James Collier Boggess and William R. Riggs had each

Page 669

filed intervening petitions in said cause contesting the validity of said bonds. One of the grounds assigned in the intervening petitions (the other grounds will be subsequently dealt with) was that Robert J. Pence (the same person referred to in case No. 46,953, supra,) was not entitled to the office which he held as councilman for the fourth ward of said city; that Robert J. Pence had wrongfully, unlawfully and in violation of the city charter taken and assumed the said office and was 'assuming to so discharge the duties of said office'; that Robert J. Pence had actively participated in the passage of the ordinances calling the election submitting the issue with reference to the bonds and authorizing their issuance and, therefore, all of said ordinances and said election and the acts of the city with reference thereto were not legally binding on the intervenors or the city. Evidence was offered in support of the allegations of the city's first amended petition for the pro forma decree and also in support of the allegations of the intervening petitions and a judgment was entered granting the city the relief sought.

We have seen that the judgment entered in case No. 46,953 was based on the alleged failure of the second amended petition for a declaratory judgment to state a claim upon which relief could be granted; that one of the defenses set forth in the intervening petitions in case No. 47,204 was based upon substantially the same facts as alleged in the second amended petition in case No. 46,953; and that in addition (in case No. 47,204) evidence was offered in support of these allegations. Since the allegations in the first case and the allegations and evidence in the second case in support of the intervening petitions are in more or less conformity, we shall briefly state the facts in support of appellants' position in both cases on the issue stated.

A city councilman for the fourth ward of the city of Liberty was to be elected on the 2nd of April 1957. There were two candidates for said office, Walter Archer and Robert J. Pence. At the city council meeting on April 5, 1957, after said election, the mayor named certain individuals 'to poll the absentee ballots'; when they finished and reported, the mayor stated to the council 'that as a result of the count of absentee ballots there was a tie in the number of votes' for the two candidates. 'The mayor asked the city court to produce the poll books and tally sheets of the city election held April 2, 1957. He then appointed the city council as a committee of the whole to canvas said poll books and tally sheets to ascertain the results. * * * Thereupon, the council canvassed the ballots cast for councilman for the fourth ward. The result of the canvas was Pence, 176, and Archer, 172.' After the recount, the council on motion found Robert J. Pence had received the greater number of votes and he was declared elected councilman of the fourth ward. Robert J. Pence thereupon took and assumed the position and office as councilman for the fourth ward of the city of Liberty and has continued to act as such in the matters mentioned in cases No. 46,953 and 47,204, supra.

The second amended petition for a declaratory judgment in case No. 46,953 alleged that, at the time the council accepted the verdict in the condemnation proceeding against appellant Boggess and appropriated the sum of $52,000 to pay the verdict awarded in that case (case No. 46,882), there were three votes in favor and two opposed and without the affirmative vote of councilman Robert J. Pence there would have been a tie vote and no approval or appropriation; and that the ordinance accepting the verdict and making the appropriation was illegal and void, since Pence had not been legally elected to the office of councilman.

In case No. 47,204 the evidence showed that councilman Pence introduced the resolution and ordinance No. 1970 of the city of Liberty calling for the bond election upon which the issuance of the water revenue bonds was based.

Section 13 of Article II of the city charter of the city of Liberty (Laws 1861,

Page 670

p. 211) provides that, 'Whenever there shall be a tie in the election of members of the council, the judges of election shall certify the same to the Mayor, or person exercising the duties of Mayor, who shall immediately thereupon issue his proclamation, stating such facts, and ordering a new election * * *.' Sec. 167, Art. XII, Charter and Revised Ordinances of the city of Liberty, Missouri, 1931.

The matter of Robert J. Pence's participation as councilman, as stated, was investigated by a Grand Jury of Clay County and a report made in November 1957, in part, as follows: 'In the matter of the election of a councilman for the 4th ward of the City of Liberty, when a canvas of the report of the Judges of the ballots cast at the polls, together with that of those of the absentee ballots, showed a tie vote, Article 6 of the City Charter indicated the necessity for the call of another election. The recount made thereupon by members of the City Council and witnessed, according to testimony, by the Mayor, City Attorney, City Clerk, and indeed the two candidates whose votes were in question, without remonstrance on the part of any individual, was therefore illegal and illadvised, but without malicious or criminal intent, and was doubtless adopted as an expeditious means of settling the matter.'

There was also evidence that the report of the Grand Jury and other facts were known to the prosecuting attorney of Clay County, and also brought to his attention in March 1958 and to the attention of the Attorney General of Missouri. No action in the nature of quo warranto proceedings had been instituted against the said Robert J. Pence. On the evidence presented the court found the issues in case No. 47,204 against invervenors Boggess and Riggs and, after approving the bond issue as heretofore stated, ordered the intervening petitions of the named intervenors 'dismissed, with prejudice.'

Appellant Boggess, in case No. 46,953, contends that, 'the court erred in sustaining the motion to dismiss for the reason that the question of plaintiff's rights with respect to his property which the city sought to take by eminent domain gave him a special property right, which he had a right to have the court pass upon, with respect to the legality of the council action due to the vote of the councilman whose right to act as a councilman and vote was rightfully questioned, and the court should have heard the case and made its findings.' Appellant...

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3 practice notes
  • F----- C-----, In re, No. KCD
    • United States
    • Missouri Court of Appeals
    • August 2, 1972
    ...quo warranto proceedings rests within the discretion of the officers named in Sec. 531.010, RSMo VAMS.' Boggess v. Pence, Mo. banc, 321 S.W.2d 667, 671(1); Civil Rule 98.01, V.A.M.R.; State v. King, Mo., 379 S.W.2d 522, 525(4, 5); State ex rel. McGaughey v. Grayston, Mo. banc, 349 Mo. 700, ......
  • Blair v. Haynes, No. 74 CV 2-SW.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 15, 1974
    ...1963); Clay v. United States, 397 F.2d 901 (5th Cir. 1968); United States v. Chaudron, 425 F.2d 605 (8th Cir. 1970); Boggess v. Pence, 321 S.W.2d 667 (Mo.1959). It would be anomolous to hold that, though the law is constitutionally valid, the legislators can be held liable for any pecuniary......
  • Blue Summit Landfill, Inc. v. Jackson County, Nos. KCD
    • United States
    • Missouri Court of Appeals
    • December 8, 1975
    ...the official acts of persons exercising the duty of an officer without actually being one in strict point of law.' In Boggess v. Pence, 321 S.W.2d 667 (Mo. banc 1959) it was stated at 'In the Harbaugh case, (Harbaugh v. Winsor) supra, 38 Mo. (327) 331, 332, the court said: 'The rule imparti......
3 cases
  • F----- C-----, In re, No. KCD
    • United States
    • Missouri Court of Appeals
    • August 2, 1972
    ...quo warranto proceedings rests within the discretion of the officers named in Sec. 531.010, RSMo VAMS.' Boggess v. Pence, Mo. banc, 321 S.W.2d 667, 671(1); Civil Rule 98.01, V.A.M.R.; State v. King, Mo., 379 S.W.2d 522, 525(4, 5); State ex rel. McGaughey v. Grayston, Mo. banc, 349 Mo. 700, ......
  • Blair v. Haynes, No. 74 CV 2-SW.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 15, 1974
    ...1963); Clay v. United States, 397 F.2d 901 (5th Cir. 1968); United States v. Chaudron, 425 F.2d 605 (8th Cir. 1970); Boggess v. Pence, 321 S.W.2d 667 (Mo.1959). It would be anomolous to hold that, though the law is constitutionally valid, the legislators can be held liable for any pecuniary......
  • Blue Summit Landfill, Inc. v. Jackson County, Nos. KCD
    • United States
    • Missouri Court of Appeals
    • December 8, 1975
    ...the official acts of persons exercising the duty of an officer without actually being one in strict point of law.' In Boggess v. Pence, 321 S.W.2d 667 (Mo. banc 1959) it was stated at 'In the Harbaugh case, (Harbaugh v. Winsor) supra, 38 Mo. (327) 331, 332, the court said: 'The rule imparti......

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