Neiser v. Thomas

• Decision Date: 21 December 1889
• Citation: 12 S.W. 725,99 Mo. 224
• Parties: NEISER v. THOMAS et al.
• Court: Missouri Supreme Court

12 S.W. 725

99 Mo. 224

NEISER v. THOMAS et al.

Supreme Court of Missouri.

December 21, 1889.

ELECTION CONTESTS — INJUNCTION.

1. A court of equity has no jurisdiction to enjoin the issuing of a certificate of election to, and the assumption of office by, a newly-elected city marshal, on petition of the present marshal, alleging disqualification under the city charter of the newly-elected officer.

2. Rev. St. Mo. § 2722, which declares that the remedy by injunction shall exist in all cases to prevent a legal wrong, when an adequate remedy at law cannot be afforded by an action for damages, does not enlarge the equity jurisdiction.

BARCLAY, J., dissenting.

Appeal from St. Louis circuit court; L. E. VALLIANT, Judge.

The petition alleges that the plaintiff is now the regularly elected and duly qualified marshal of the city of St. Louis, and has been such for the last four years, having been elected to such position at the city election in 1885 for a term of four years, and possessing all the qualifications prescribed by law therefor. That by the provisions of section 1, art. 4, of the charter of the city of St. Louis, he is entitled to hold said office for four years from the date of said election, and until his successor shall be duly elected and qualified. That at the election for city officers held on April 2, 1889, the defendant Emil Thomas was a candidate for the office of marshal of the city of St. Louis. That he claims to have been elected at said time to said office. That by the provisions of section 10, art. 4, of the charter of the city of St. Louis, it is provided that "all elected and appointed officers shall possess the following qualifications: They shall have been citizens of the United States and of the city of St. Louis for at least two years previous to their election or appointment, and shall be able to read and write the English language. They shall not at the time of their election be in arrear to the city for taxes, or indebted to the city in any way," etc. That at the time of the said election, held on the 2d day of April, 1889, said defendant Emil Thomas did not possess the qualifications prescribed by said charter of the city of St. Louis, in this: that he was in arrears to the city for taxes, and was indebted to the city for, to-wit, the taxes which were regularly, legally, and properly assessed against him for the year 1885, on $500 of property; 1886, on $500 of property; 1887, on $400 of property; 1888, on $1,000 of property. That the taxes for the year 1888 amounted to $23, for the year 1887 to $10, for the year 1886 to $12.75, for the year 1885 to $12.75. That all of said taxes were at said time payable and past due, and were at the time of said election on April 2, 1889, and at the time of the filing of the petition, still unpaid. That at the time of said election defendant Thomas did not possess the qualifications for said office of marshal prescribed by said charter, in this: that on or about the 10th day of August, 1885, said defendant became indebted to the city of St. Louis for and on account of a license to keep a saloon in the city of St. Louis, to-wit, in the alley between Olive and Pine and Seventh and Eighth streets, of said city, for, to-wit, the sum of $279.50. Said defendant opened a saloon, and did business as a saloon-keeper in said city at said place from, to-wit, the 10th day of August, 1885, until, to-wit, the 1st of April, 1886, and which license for said saloon became due and payable to the city of St. Louis on, to-wit, the 10th day of August, 1885, according to the provisions of chapter 37, art. 2, §§ 1-7, inclusive, of the Revised Ordinances of the City of St. Louis, (1881.) That at the time of the said election said Thomas did not possess the qualifications prescribed by said charter for said office, in this: that at the time of said election Thomas had not been a citizen of the city of St. Louis for at least two years previous to said election. That the defendant Williams is the duly appointed and qualified recorder of voters of the city of St. Louis, and as such is charged, empowered, and authorized by law to issue certificates of election to all persons elected to any city office, the office of marshal included. That said Williams is about to issue to said Thomas a certificate of election to the office of marshal of the city of St. Louis. The prayer of the petition is for an injunction perpetually restraining the defendant Thomas from receiving such certificate of election, and defendant Williams, said recorder of voters, from issuing to said Thomas any certificate of election as marshal of the city of St. Louis in pursuance of said election of April 2, 1889, and for a temporary restraining order. The circuit court granted a temporary restraining order on the 4th of April, 1889. Thereafter defendant Williams demurred to the petition on the following grounds: First. The court has no jurisdiction in the premises. Second. There is no equity in the petition. Third. The petition states no cause of action, nor does it allege any ground entitling plaintiff to relief. Fourth. The petition shows on its face that plaintiff is not entitled to the relief sought. Defendant Thomas demurred to the petition on the following grounds: First. The petition fails to state facts sufficient to constitute a cause of action. Second. There is no equity in the petition. Third. Upon the facts alleged the plaintiff is not entitled to the relief prayed, nor to any relief. The demurrers coming on to be heard, the petition was adjudged insufficient, and, the plaintiff declining to plead further, the petition was dismissed, the temporary injunction dissolved, and the cause was appealed to this court.

W. C. Marshall, Geo. W. Lubke, and E. J. White, for appellant.

The circuit court had jurisdiction to hear and determine this case, and to grant the injunction. Rev. St. Mo. § 2722; Overall v. Ruenzi, 67 Mo. 207; Damschroeder v. Thias, 51 Mo. 104; Miller v. Lowry, 5 Phila. 202; Kerr v. Trego, 47 Pa. St. 292; Ewing v. Thompson, 43 Pa. St. 372; State v. Funck, 17 Iowa, 365; State v. Board, 36 Wis. 498; O'Farrall v. Colby, 2 Minn. 180. (Gil. 148;) People v. Nordheim, 99 Ill. 553; State v. University, 57 Mo. 178; Hitchcock v. St. Louis, 49 Mo. 484. The injury to the public would be irreparable, in a legal sense, if this injunction is not sustained, and in such cases injunction is the proper remedy. A public right and a public duty is involved in this case. McPike v. West, 71 Mo. 199; Harris v. Board, 22 Mo. App. 462; State v. Francis, 95 Mo. 48, 8 S. W. Rep. 1. Even where a statute creates a board for the purpose of determining election contests, and confers upon such board exclusive jurisdiction, in such cases the courts may compel such board to organize and proceed according to law in the discharge of its official duties. McCrary, Elect. § 344; State v. Garesche, 65 Mo. 485. Courts have power to control ministerial officers in the discharge of their duties, either by mandamus, to compel them to do a certain act, or by injunction, to prevent their abusing their powers and going outside of the law. Francis v. Blair, 89 Mo. 291, 1 S. W. Rep. 297; State v. Francis, 95 Mo. 44, 8 S. W. Rep. 1; State v. Hoblitzelle, 85 Mo. 620; State v. Railroad Co., 86 Mo. 13; State v. Garesche, 65 Mo. 485. By the provisions of section 2722, Rev. St. Mo., injunction is allowed "to prevent the doing of any legal wrong whatever."

Rassieur & Schurmacher and Thomas C. Fletcher, for respondent Thomas.

There is no equity in the bill. Equity has no jurisdiction to try an election contest for office. High, Inj. §§ 1250, 1312, 1313; Cochran v. McCleary, 22 Iowa, 75; Hagner v. Heyberger, 7 Watts & S. 104; Moulton v. Reid, 54 Ala. 320; Markle v. Wright, 13 Ind. 548; Hinckley v. Breen, 55 Conn. 119;¹ Attorney Gen. v. Insurance Co., 2 Johns. Ch. 371; Boren v. Smith, 47 Ill. 482; Moore v. Hoisington, 31 Ill. 243; Frey v. Michie, (Mich.) 36 N. W. Rep. 184. And the fact that there is no provision made by statute for a contest will not confer jurisdiction. Moore v. Hoisington, 31 Ill. 243; Moulton v. Reid, 54 Ala. 320; Rink v. Barr, 14 Phila. 154. A court of chancery will not enjoin the issue of a commission, nor its acceptance, nor will it restrain the performance of official acts. High, Inj. § 1250; Thompson v. Ewing, 1 Brewst. 67; Smith v. Myers, 109 Ind. 1, 9 N. E. Rep. 692; Weil v. Calhoun, 25 Fed. Rep. 865; Kemp v. Ventulett, 58 Ga. 419; Beal v. Ray, 17 Ind. 554; Sanders v. Metcalf, 1 Tenn. Ch. 419; Dickey v. Reed, 78 Ill. 261; Delaware Co.'s Appeal, 119 Pa. St. 159, 13 Atl. Rep. 62; Railroad Co. v. Mayor, 39 La. Ann. 127, 1 South. Rep. 434; Peck v. Weddell, 17 Ohio St. 271. Equity leaves the determination of such contests to the courts of law. The right to a public office should be settled by quo...