Sheridan v. City of St. Louis

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1082,183 Mo. 25
• Parties: SHERIDAN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

81 S.W. 1082

183 Mo. 25

SHERIDAN v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

MUNICIPAL CORPORATIONS—HOUSE OF DELEGATES —ELIGIBILITY—ELECTION—DETERMINATION —POWERS—ACTION FOR SALARY—DE FACTO OFFICER.

1. St. Louis City Charter, art. 3, § 4, provides that the house of delegates shall consist of one member from each ward, to be chosen every two years by the qualified voters of the several wards. Section 8 declares that each house shall be the sole judge of the qualifications, election, and returns of its own members, and in case of a tie shall certify the same to the mayor, who shall order a new election; and section 7 provides that whenever a vacancy occurs in the office of any member of the assembly it shall be filled by election ordered by the mayor. Held that, where a person elected to the house of delegates from a certain ward was ineligible, the house of delegates had power to determine his eligibility, and to oust him from his office, but not to fill the vacancy so occurring by declaring the person receiving the next highest number of votes at the election entitled to the office.

2. Where a person elected as a member of the house of delegates from a ward of a city was ineligible, whereupon he was ousted on petition of the candidate receiving the next highest number of votes, who, however, took no steps to contest the election, the votes cast for such disqualified candidate could not be treated as void for the purpose of declaring the candidate receiving the next highest number of votes as the person elected to the office.

3. Where plaintiff in a suit to recover salary as a member of the house of delegates of a city was not a de jure officer, he was not entitled to recover.

Appeal from St. Louis City Circuit Court; Wm. Zachritz, Judge.

Action by John A. Sheridan against the city of St. Louis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

T. J. Rowe, for appellant. Chas. W. Bates and Benj. H. Charles, for respondent.

MARSHALL, J.

This is an action to recover $600 salary alleged to be due the plaintiff as a member of the house of delegates of the city of St. Louis, representing the Fourth Ward, from May 26, 1899, to April 2, 1901. The answer is a general denial, with a special plea that William Vogel was elected the member of the house from the Fourth Ward at the election held on April 4, 1899, for a term of two years thereafter; that he was commissioned, qualified, and entered upon the discharge of the duties of the office, and that on May 26, 1899, the house adopted a resolution declaring that said Vogel was ineligible to hold said office, and that his election was void, and declaring further that the plaintiff received the highest number of votes cast at said election for the office, and declared that Vogel was ineligible, and the plaintiff elected —the theory of the answer being that, if Vogel was ineligible, he yet having received a majority of the votes cast at the election, and the plaintiff having received only a minority of such votes, the effect was to create a vacancy, which could only be filled by an election by the people, under the city charter, and that the house had no power to declare plaintiff elected, or elect him to fill the vacancy. The case was tried in the circuit court upon an agreed statement of facts, which, briefly stated, showed the facts to be as follows: An election for a member of the house of delegates from the Fourth Ward for a term of two years next succeeding was held on April 4, 1899, at which William Vogel received 809 votes, the plaintiff, John A. Sheridan, received 781 votes, and Israel Weinsteine received 14 votes. Vogel was declared elected; was commissioned, qualified, and entered upon the discharge of the duties of the office. On April 17, 1899, John A. Sheridan filed a petition with the clerk of the house, addressed to the house, in which he recited the election, and the result thereof as above stated, and then stated that Vogel did not possess the qualifications necessary for a member of the house, because he had been convicted of corrupt practices or crimes, in that on eight different occasions stated between July 20, 1892, and March 6, 1895, he had been prosecuted in the St. Louis court of criminal correction for selling lottery tickets, and had pleaded guilty or had been found guilty of such offense in each case, and had been fined therefor. The petition concluded with a statement that Vogel was ineligible, and that the petitioner possessed the necessary qualifications, and that he had received the highest number of votes of any qualified candidate for the office, and asked that he be declared the duly elected member of the house from the Fourth Ward. On May 26, 1899, the house adopted the following resolution: "Whereas, Wm. Vogel is ineligible to hold a seat in this house because of violations of a provision of the charter, and his election is therefore null and void. Whereas, John A. Sheridan received the highest number of votes cast at said election for this office: Therefore, the said Vogel is hereby declared ineligible, and Mr. John A. Sheridan duly elected to the body." Thereupon said Sheridan qualified as such member, entered upon the duties of the office, and served as such during the remainder of the term ending April 2, 1901, and was the only person who was recognized by the house as such member from the Fourth Ward. On March 12, 1901, the house adopted a resolution reciting that said Sheridan had been declared by it to be duly elected as such member, that the house is the sole judge of the qualifications of its own members, that said Sheridan had served without pay, and authorizing the auditor to draw a warrant on the treasurer for his pay. The auditor did not do so, and after demand upon the city for the sum of $600, the pay for two years, this suit was instituted. The trial court entered judgment for the defendant, and the plaintiff appealed.

1. The question for decision in this case is the power of the house of delegates of the city of St. Louis to declare one who has received a minority of the votes cast at an election for a member of the house to be elected where the person who received a majority of such votes is ineligible. Section 4 of article 3 of the charter of St. Louis provides that the house of delegates shall consist of one member from each ward, "to be chosen every two years by the qualified voters of the several wards." Section 8 of article 3 of said charter provides that "each house * * * shall be the sole judge of the qualifications, election and returns of its own members, and in case of a tie vote shall certify the same to the mayor, who shall order a new election." Section 7 of article 3 of said charter provides that "whenever a vacancy occurs, from any cause, in the office of any member of the assembly, the mayor upon information thereof, shall, by proclamation, order an election to fill such vacancy for the unexpired term," etc. Under the facts here in judgment, there was no question as to the election of Vogel before the house for it to determine. There was no election contest pending before the house between Sheridan and Vogel for the house to decide. Sheridan did not notify Vogel that he intended contesting his election, as would have been necessary if the election was to be contested. On the contrary, he filed a petition with the clerk of the house, addressed to the house, in which he recited that Vogel had received a majority of the votes cast at the election for the office. The only question, therefore, which was presented to the house for its determination was whether Vogel was qualified. The house had power to determine that question, and it did so by declaring him disqualified, and by ousting him. Such a determination created a vacancy in the house from the Fourth Ward. Having reached that conclusion, the house exhausted its power, for under the charter the house had no power to fill the vacancy, but it could only be filled by an election by the people. The house, however, proceeded upon the theory, which is here contended for by the plaintiff, that, as Vogel was ineligible, the votes cast for him were thrown away, and that, as the plaintiff received the highest vote cast at the election for any eligible candidate, he is entitled to the office, and that the house had the power to so declare. This contention finds no countenance in the charter of St. Louis. Section 4 of article 3 requires the members of the house to be chosen by the qualified voters of the ward. Section 8 of article 3 provides that in case of a tie vote the matter shall be certified to the mayor, who shall order a new election. And section 7 of article 3 provides that in case of a vacancy the mayor shall order an election to fill the vacancy. In every contingency, therefore, the charter requires that there shall be an election by the people. It is true that the house had power to determine a contest over the election, but, as above pointed out, there was no such question presented to the house in this case, for there was no attempt made by the plaintiff to contest Vogel's election. The contest was as to his qualification, and not as to his election.

It is argued, however, that as Vogel's disqualification existed at the date of the election, he was then ineligible, and hence the votes cast for him were thrown away, and, as the plaintiff received the highest number of votes that were cast for any qualified candidate, he was entitled to the office. It must be noted, however, that such a question could only arise in a contested election case between Sheridan and Vogel, and that there never was such a contest. It could not be raised so as to confer power upon the house to decide the question in the manner or form that was adopted in this instance. But, aside from this, such a contention is wholly untenable, and contrary to the rule of law in this state, as it is contrary to the great...