Castello v. St. Louis Circuit Court

• Decision Date: 31 March 1859
• Citation: 28 Mo. 259
• Parties: CASTELLO v. ST. LOUIS CIRCUIT COURT.
• Court: Missouri Supreme Court

28 Mo. 259

CASTELLO

v.ST. LOUIS CIRCUIT COURT.

Supreme Court of Missouri.

March Term, 1859.

1. Where an inferior judicial tribunal declines to hear a cause upon what is termed a preliminary objection--as where, in a statutory proceeding instituted to contest the election of a sheriff, the court refuses to try the cause upon the merits but dismisses the same and quashes the proceedings on the ground that the contestant had not given the notice required by the statute--a mandamus will lie from the supreme court commanding the inferior court to reinstate the cause upon its docket and proceed to try the same, if such court had misconstrued the law in such preliminary matter. (SCOTT, Judge, dissenting.)

2. In proceedings instituted under the act regulating elections to contest the election of a sheriff, the contestant must, as required by the fifty-fifth section of said act, give notice in writing within twenty days after the votes are officially counted; the essential constituents of the notice in such case are set forth in the fiftieth section of said act; only one notice is contemplated or required.

3. Should the contestant not give the required notice, the court should quash the proceedings.

Application for Mandamus.

This was an application to the supreme court for a mandamus directed to the St. Louis circuit court. The following is the petition for the mandamus:

“To the honorable the judges of the supreme court of Missouri--October term, 1858--the petition of James Castello is respectfully submitted. Your petitioner states that at the late general election in and for St. Louis county, Missouri, held on the first Monday in August, 1858, being the second day of said month, he was duly and legally elected and chosen sheriff of the said county of St. Louis according to the statute in such case made and provided; that at the time when your petitioner was so elected to said office of sheriff, he was and still is qualified to fill the same, and was and still is competent and eligible thereto by law. Your petitioner avers that at the said election he received a larger number of the legal votes cast than any other candidate for the said office of sheriff. That notwithstanding what is above stated, one Michael S. Cerre, who was a candidate for the same office at said election, and who in fact and truth received a less number of the legal votes cast thereat than your petitioner, obtained a certificate of his election to said office under the twenty-first section of the act to regulate elections, approved December 8, 1855, (R. C. 1855, p. 698,) as having received the highest number of votes cast at said election. And your petitioner avers that on the 11th day of August, 1858, the said Michael S. Cerre gave bond and qualified as sheriff of said county, and has been ever since exercising the duties thereof by virtue of his said pretended election. That the votes cast at said election were officially counted on the 7th day of August, 1858. That afterwards your petitioner took the following steps to contest the election of said Michael S. Cerre to said office and to establish his (petitioner's) own right thereto; that is to say, on the 17th day of August, 1858, your petitioner caused to be served upon said Cerre a notice, of which the following is a copy: ‘To Michael S. Cerre, Esq.: Sir--You are hereby notified that I claim that at the late election for sheriff of St. Louis county, Missouri, held on the 2d day of August, 1858, being the first Monday of said month, in the city and county of St. Louis, I was duly and legally chosen sheriff of said county of St. Louis, and that I shall contest your right to hold said office, I being in fact entitled to the same according to the statute in such case made and provided. St. Louis, August 17, 1858. James Castello.’ The said notice was given in accordance with the provisions of section fifty-five of the aforesaid act to regulate elections, (R. C. 1855, p. 706,) and after being served was filed in the office of the clerk of the circuit court of St. Louis county on said 17th day of August, 1858.

That on the 18th day of September, 1858, your petitioner caused to be served on said Michael S. Cerre another notice in writing in accordance with the provisions of section fifty of said act to regulate elections, (R. C. 1855, p. 705,) fully specifying the grounds on which he intended to rely in contesting the election of said Cerre to said office, also stating therein sundry objections to voters at said election, who had voted at said election for said Cerre, and giving therein the names of said voters to about the number of nine hundred. This last mentioned notice was served on said Cerre fifteen days before the regular October term of said circuit court of St. Louis county, which was begun and held on the 4th day of October, 1858, and was filed in the office of the clerk of the said circuit court on the 18th day of September, 1858. Said last mentioned notice is fully and truly copied in the transcript hereto annexed, beginning on page two and ending on page twenty-seven thereof. And your petitioner avers that afterwards and in accordance with the provisions of section fifty-eight of said act to regulate elections, (R. C. 1855, p. 706), said Cerre caused to be served upon your petitioner six days before said October term of said circuit court, beginning as aforesaid, a notice in writing, denying all the allegations in your petitioner's said notice of September 18th, and requiring proof thereof, and also setting forth much specific matter of objection against your petitioner's right to said office, and specifying the names of four or five thousand persons who, he therein alleged, illegally voted for your petitioner at said election, with specific objections to the qualifications of said persons to vote at said election. Said last mentioned notice is fully and truly copied in the transcript hereto annexed, commencing on page thirty-one and ending on page one hundred and thirty-one thereof, and was filed in the office of said clerk on the 6th of October, 1858. That afterwards, on the 11th day of October, 1858, that being the 8th day of the October term of said court in said year, said circuit court, on the motion of said Cerre, refused to comply with the directions contained in section sixty of said act to regulate elections and try said cause on the merits, and quashed and annulled all the proceedings therein on the part of your petitioner to contest said election of said Cerre to said office, and struck your petitioner's said cause from the docket for the reason that your petitioner's said notice of September 18, 1858, specifying the grounds on which he intended to rely in his contest and giving his objections to qualifications of voters for said Cerre, with the names of said voters, had not been served on said Cerre within twenty days after the votes of said election had been officially counted. The court held that, for the reason aforesaid, there was no jurisdiction, power or authority in the said circuit court to try the said cause. And it was for no other cause or reason that the said circuit court quashed your petitioner's said proceedings and refused to try said contest, and struck the cause from the docket of said court. Now inasmuch as the cause of your petitioner is one of great public concern and he is advised that there is no remedy by which the wrongs above complained of may be redressed save by the process of mandamus, he prays this court to exercise the superintending control, which it possesses, of the said circuit court, in his behalf, by awarding against the said circuit court a writ of mandamus procedendo, commanding and requiring the said circuit court of St. Louis county, without further delay, to reinstate, take cognizance of, and try upon its merits, the cause of your petitioner against the said Michael S. Cerre, or to return into this supreme court sufficient reasons and causes why the same should not be done; and your petitioner prays for such other process, orders and remedies as may rightfully appertain to his case; and, as in duty bound, your petitioner will ever pray,” etc.

This petition was duly verified by the oath of the petitioner James Castello.

The supreme court having announced its determination to award an alternative mandamus, the issuing of the writ was waived by the parties, and it was agreed that the judge of the circuit court should put in an answer to the above petition as to an alternative mandamus, setting forth the points ruled by him and his reasons for refusing to enter upon the adjudication of the cause of Castello v. Cerre. This agreement and understanding was communicated to Judge Lackland, of the circuit court, in the form of a note addressed to him by the counsel of both Mr. Castello and Mr. Cerre. The following is the response of Judge Lackland:

“Messrs. Glover, Thomas and Hill.

Gentlemen--I received your note of 30th ult. and cheerfully comply with your request, and submit the points and propositions raised and discussed in the matter of the contested election of the sheriff of St. Louis county, and the decision of the court thereupon and the reasons given therefor, as well as I can now recollect them.

On the 4th of October, 1858, as appears by the record, Castello, by his counsel, submitted to the court a motion for the appointment of three discreet persons to count the ballots cast for Cerre and himself respectively for the office of sheriff at the last August election, and, before any action was taken upon this motion, the counsel of Cerre interposed a motion to quash and dismiss the proceedings upon the ground that there had been no sufficient notice served upon Cerre as required by the act concerning elections. The court decided that the motion to quash would be considered first in order. It appeared that Castello had served two notices upon Cerre, one a general notice served on the 17th of August, 1858, and the other a special...