St. Louis Cnty. Court v. Sparks
Decision Date | 31 March 1846 |
Citation | 10 Mo. 117 |
Parties | ST. LOUIS COUNTY COURT v. JOHN SPARKS. |
Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS CIRCUIT COURT.
GAMBLE & BATES, for Appellant.
1. The Circuit Court had no authority or jurisdiction in the case, to issue a mandamus. See State Constitution, art. 5, § 3; 4 Bac. Abr. title Mandamus, 496, and 514-15-16. In England, the mandamus is a high prerogative writ, pertaining to the King's Bench. In Missouri, the Constitution gives it, in terms, to the Supreme Court; and neither the Constitution nor any statute gives it to the Circuit Court. And so the Circuit Court cannot exercise it in any instance, unless in support of its own granted power, to supervise inferior judicial tribunals. The County Court of St. Louis, in appointing a collector, are no more acting judicially, than the people are in appointing an assessor. The power to appoint a collector is not enumerated among its granted judicial powers. Rev. Code, 1835, p. 156.
2. There was no case presented to the Circuit Court in which a mandamus could legally issue. Under this head we present these points: 1st. The office of collector was filled, and therefore it was not a case for mandamus, to restore the former collector. 3 Johns. Ca. 79; Angell & Ames, Corp. 565; 2 Term R. 260 (old edition). 2nd. The relator was not by law entitled to hold the office, for many reasons apparent on the record, but especially, because it was the express duty of the court or clerk to make an appointment, and because he had never been legally collector. 7 Eng. C. L. R. 245; 6 Mass. R. 462.
3. There was no service of the alternative mandamus which would authorize the order for a peremptory writ of mandamus. 4 Bac. Abr. 496, 514-15-16, and the act of Assembly, December 22nd, 1836, p. 72.
LESLIE, for Appellees. By the law of the State passed 12th December, 1836, p. 130, the County Court for St. Louis county, are empowered to appoint a respectable householder “Collector of the Revenue,” which appointment must be made at the first term of the year. As no power is given the County Court to appoint a collector, to be exercised at any other term, or to be exercised upon any person not having the statutory qualifications, a failure in either of these particulars leaves the incumbent in office, until superseded by the action of another appointing power mentioned in the statute; and any removal of such incumbent, except by a strictly legal appointment of a successor, is illegal and void. This statute is to be construed strictly, and no power given to the County Court by construction, and it will be seen that no construction is necessary, for all contingencies are fully provided for. The case before the court shows that Wise had not the legal qualifications, and consequently, the incumbent was not superseded. As well might the County Court appoint an infant, a non-resident, a negro, or a person outlawed or non-compos, and then say the office was filled, as to disregard the qualifications of householder, made indispensable by the very terms of the law. The second appointment abrogates the first, and leaves this case in contemplation of law, as if the County Court of any other county of the State, not having the power of appointment, should turn out of office the person elected by the people. If Sparks was entitled to the office, and was turned out of it, mandamus will lay to restore him, for there is no other specific remedy. 3 Term R. 646; 6 East, 356; 2 Term R. 259; 3 Burr. 145-9; 4 Term R. 369; 10 Wend. 393; Minot's Digest, 466, and cases there cited. As to the propriety of the remedy, see also Bac. Abr. 500-1-2, letter C; 5 East, 14, 15. The return was rightly decided to be insufficient, because it stated conclusions of law instead of facts; and because it was in no manner responsive to the writ. Leigh's N. P. 7; 5 Term R. 66.
The act of December 12, 1836, made it the duty of the County Court for the county of St. Louis, at the first term which should be holden in said county, who should be a responsible householder in said county, and reside within the same, and should hold his office for one year, and until his successor was appointed. The second section of the act provided that if the Court at that term failed to make the appointment, then the clerk of the County Court should make the same.
Under this act, John Sparks was appointed collector of the said county, on the 13th March, 1843, and until his successor was appointed. Sparks qualified and entered upon the duties of his office. In March, 1844, the court appointed Henry J. Wise the collector for that year. It is alleged that Wise, at the time of his appointment was not a householder. Wise entered upon the duties of his office; blank licenses were delivered to him, and Sparks was directed to make a settlement with the County Court, and to deliver possession of the office in which he transacted the business of the office, to Wise. Sparks failing to do this, he was forcibly ejected by the marshal of the court, under orders from the County Court. On this state of facts, Sparks applied to the Circuit Court of St. Louis county for a mandamus, compelling the County Court to restore him to the office of collector. On this petition the court made a rule on the County Court of St. Louis, commanding it to restore Sparks to his office, or to show cause to the contrary.
In answer to the foregoing rule, the County Court states, that although Sparks was appointed collector for the year 1843, yet he failed to give bond within the time prescribed by law. That Henry J. Wise was appointed collector for the year 1844, who qualified and entered upon the duties of his office. That doubts having arisen whether Wise at the time of his appointment, possessed the qualifications required by law, the court in April re-appointed him, all doubts relative to his qualifications for the office having been removed, and he again qualified.
There was a demurrer to the answer, which was sustained by the court, and thereupon a mandamus in the alternative was awarded to the County Court requiring it to restore Sparks, or show cause to the contrary.
This writ was directed to the members composing the County Court, individually styling them the Justices of the County Court, and was severally served on the Justices in vacation.
On the return of this writ, the Justices severally appeared, and moved to quash it, for the reasons that the said supposed writ was no writ, it containing no statement of any grievance. That it was improperly directed, being directed o the Justices of the County Court jointly and severally, whereas it should have been directed to the court. That it was served by delivering a copy, wheras it should have served by delivering the original. Upon this, a motion was made for peremptory mandamus, which was awarded, and thereupon an appeal was severally taken to this court by the Justices of the County Court.
As to the point made relative to the service of the conditional mandamus, it may be remarked, that a mandamus in the alternative may be served on the officers composing the court in vacation, and that a delivery of a copy of the process showing the original, is a sufficient service. The People v. The Judges of Westchester, 4 Cowen, 403; 7 Wend. 474; 1 Johns. R. 61. It seems it may be addressed to the court or to the individuals composing it. 16 Johns. R. 61. When, however, proceedings commence against a court for disobedience, then the judges composing it are to be proceeded against personally. In saying that the judges composing a court may be served in vacation, we do not mean to be understood that any judicial act could be done by them during that time.
It has been long held that a mandamus may be issued to restore a person to an office to which he is entitled. 4 Bacon, 500. But we are not prepared to say, that this was a proper case for the interference of the Circuit Court by mandamus. Various considerations incline us to this opinion. The office was already filled by one who was de facto an officer, at least; and it appears to be law that when an office is already filled by a person who is in by color of right, a mandamus is never issued to admit another person, the proper remedy being an information in the nature of a quo warranto. The People v. The Corporation of New York, 3 Johns. Ca. 79; Angell v. Ames on Corporations, 565; The King v. Mayor of Colchester, 2 Durn. & East. It...
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