State ex inf. McKittrick ex rel. Chambers v. Jones

• Decision Date: 05 February 1945
• Docket Number: 39058
• Citation: 185 S.W.2d 17,353 Mo. 900
• Parties: State of Missouri ex inf. Roy McKittrick, Attorney General ex rel. Jordan W. Chambers, Appellant, v. Ellis Jones
• Court: Missouri Supreme Court

185 S.W.2d 17

353 Mo. 900

State of Missouri ex inf. Roy McKittrick, Attorney General ex rel. Jordan W. Chambers, Appellant, v. Ellis Jones

No. 39058

Supreme Court of Missouri

February 5, 1945

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

George L. Vaughn for appellant.

(1) The election of a person to office who does not possess the requisite qualifications, gives him no right to hold the office. State ex rel. Snider v. Newman, 91 Mo. 445; 1 Dill. Mun. Corp. (3 Ed.), sec. 196; State ex rel. v Vallins, 140 Mo. 523. (2) Residence on the Fifth Constabulary District of the City of St. Louis is a requirement in addition to the other qualifications prescribed for one who is elected to the office of constable in said district, and persons who are not residents are not eligible to hold the office of constable therein, although elected at a legal election. Secs. 2785, 13370, R.S. 1939; 46 C.J., p. 938, sec. 36; State v. Newman, supra; State ex rel. v. Vallins, 140 Mo. 523; State ex rel. v Donoworth, 105 S.W. 1055; Mullery v. McCann, 95 Mo. 579. (3) The court may go behind the certificate of election, which is only prima facie evidence of title to the office, and, if upon investigation it appears that respondent holds his office without having been duly elected, he may be ousted notwithstanding his commission. High Ex. Rem. (3 Ed.) pp. 596, 597, sec. 38; State v. Steers, 44 Mo. 223; State v. Vail, 53 Mo. 97. (4) The place where the family of a person shall permanently reside in this state, and the place where any person having no family shall generally lodge, shall be deemed to be the residence of such person or persons respectively. Sec. 655, R.S. 1939. (5) It having been shown that the residence of the respondent was at 2820 Stoddard Street in the Eighth Constabulary District of the City of St. Louis, and that he and his family lived there together, both the residence of the respondent and his marital status are presumed to continue until the contrary is shown by sufficient evidence to overcome this presumption. 22 C.J., p. 86, secs. 28, 29; McDaniels v. Cutburth, 270 S.W. 353. (6) The evidence produced in support of relator's contention that respondent did not reside in the Fifth Constabulary District of the City of St. Louis, Missouri, at the time of his election to the office of constable in said district, when taken together with the admissions of respondent and the testimony of respondent's own witnesses, was amply sufficient to prove that respondent was not a resident of said district at said time. State v. Keating, 100 S.W. 648; State v. Wiley, 160 S.W.2d 677; Walker v. Walker, 1 Mo.App. 404. (7) It was competent to show by general reputation in the community where the respondent and his wife lived, by the testimony of witnesses who knew them personally and lived in the vicinity of 2820 Stoddard Street, that respondent and his wife were generally reputed to be living together at that number during the time when respondent claims he had separated from his wife and was living elsewhere. And this general repute testimony was also competent to rebut the statements of respondent's wife who testified in his favor, that she and her husband were separated during said time. 38 C.J. 1313, sec. 195; 22 C.J. 172, sec. 101. (8) The inspection of the premises at 3324 Bell Avenue and 2820 Stoddard Street by the court, more than two months after the submission of this cause and under the conditions shown by the record herein, was without authority of law; and it was error for the court to consider any information gained thereby in making its findings of fact and in rendering judgment herein. (9) The court erred in finding against relator. 20 C.J., p. 69, sec. 25; 22 C.J., p. 86, secs. 28, 29; McDaniels v. Cutburth, supra; State v. Keating, supra; Walker v. Walker, supra; State v. Wiley, supra; Sec. 655, R.S. 1939. (10) The court erred in not rendering a judgment of ouster against the respondent, and in not including therein an adjudication of the right of the relator to hold said office of constable of the Fifth Constabulary District of the City of St. Louis until his successor should be duly elected and qualified. State v. Newman, supra; State v. Donoworth, supra; State v. Steers, supra; State v. Smith, 152 Mo. 512, 64 S.W. 221; Abbington v. Harrell, 211 S.W. 885; State v. Ralls County Court, 45 Mo. 61. (11) The court was biased and prejudiced against the contention of the relator, that respondent lived at 2820 Stoddard Street and merely registered from 3324 Bell Avenue for the purpose of running for office in a constabulary district in which he did not reside, by reason of the fact that some years before the date of the trial judge of the court had had his own registration challenged and criticised on acount of having registered from an address where he did not live. State v. Slate, 214 S.W. 85, 88; Ex parte Howell, 200 S.W. 65. (12) It was error on the part of the court not to disqualify himself as trial judge, under the circumstances in this case. 33 C.J., p. 1000, sec. 151; State v. Slate, supra. (13) If the matter alleged in a pleading may, in any view of the controversy, become pertinent, or if it can have any proper influence in the decision of the controversy, the nature and extent of the kind of relief to be granted, or as to costs, it will not be expunged, for being impertinent and scandalous. 21 C.J., p. 374, secs. 385, 386; 49 C.J., p. 83, sec. 81; Coe v. Kutinsky, 82 Conn. 658, 75 A. 1065; Tucker v. Randall, 2 Mass. 293; People v. Church, 55 Barb. 204, 2 L.R.A. (N.S.) 459. (14) The matters set forth in paragraphs 6 and 7 of relator's motion for a new trial were not impertinent or scandalous, because they raised issues pertinent to the relief sought and brought to the attention of the trial court matters which affected the decision in the case, and which, if true, showed that the trial judge was disqualified to hear and determine the issues in this cause, in the only manner which could be used by the relator to call said matters to the attention of the Supreme Court in the event of an appeal. Polacious v. Merchants State Bank & Trust Co. of Laredo, 246 S.W. 111; Ousterheld v. Star Co., 131 N.Y.S. 247; Sheridan v. Tinker, 127 N.Y.S. 800; Fernandes Grain Co. v. Hunter, 274 S.W. 901. (15) Relator, being the real party in interest, and the Attorney General having brought the proceeding by leave of court, had the power to file motion for new trial and prosecute cause to final determination in his own right State ex rel. Perkins v. Long, 204 S.W. 914. (16) It was error and an abuse of judicial discretion and power for the court to strike relator's motion for new trial from the files. Ex parte Howell, 200 S.W. 65, 70. See cases cited, supra, under (13), (14), (15).

Samuel White and Alroy S. Phillips for respondent.

(1) The law seems to be that respondent was required to be a resident of the district. Secs. 2785, 13370, R.S. 1939, as amended by Laws 1941, p. 325; Mullery v. McCann, 95 Mo. 579. (2) The presumptions of the continuance of the marriage and residence of respondent are rebuttable and the trial court could and did find from the evidence that they had been rebutted. 22 C.J. 87, 156-57; Mockowik v. Railroad, 196 Mo. 550, 94 S.W. 256. (3) The trial court properly construed Section 655, R.S. 1939, clause 17, and found that respondent resided where he lodged, at 3423 Bell Avenue, and not where his wife resided. Sec. 655, R.S. 1939; 19 C.J 414-16; State ex rel. Taubman v. Davis, 199 Mo.App. 439, 203 S.W. 654; Exchange Bank v. Cooper, 40 Mo. 169. (4) The trial court followed the rule laid down in the decisions of this court that it was necessary for respondent to prove by all the facts and circumstances in evidence that he changed his residence to 3324 Bell Avenue and actually resided there with the intention of making that address his residence. State ex rel. Ramey v. Dayton, 77 Mo. 678; Lankfort v. Gebhart, 130 Mo. 621, 32 S.W. 1127; In re Lankfort Estate, 272 Mo. 1, 197 S.W. 147; Nolker v. Nolker, 257 S.W. 798; State ex inf. Attorney General v. Wiley, 349 Mo. 239, 160 S.W.2d 677; Barrett v. Parks, 180 S.W.2d 665. (5) On appeal in quo warranto the findings of the trial court are conclusive on this court if supported by competent and substantial evidence. State ex rel. McAllister v. Hall, 228 S.W. 1051; State by Hammett ex rel. Roberts v. Stephens, 294 Mo. 504, 243 S.W. 89; State ex inf. Thompson ex rel. Pugh v. Bright, 298 Mo. 335, 250 S.W. 599; State ex inf. Mansur ex rel. Fowler v. McKown, 315 Mo. 1336, 290 S.W. 123. (6) The recitals of residence made in respondent's transfer of voting registration and in his Selective Service Certificate of Registration are substantial evidence in support of the finding below, because in public documents sanctioned by laws making their falsehood a felony. Secs. 12206, 12207, 12212, 12252, R.S. 1939; Sec. 11, Selective Service Act of 1940, Sec. 311, 50 U.S.C.A. (Appendix). (7) That respondent voted from the transferred registration address is also substantial evidence of residence intention. Chariton County v. Moberly, 59 Mo. 238; Northern v. McCaw, 189 Mo.App. 362, 175 S.W. 317; In re Ozias' Estate, 29 S.W.2d 240; Secs. 12, 121-123, R.S. 1939. (8) Residence cannot be proved by hearsay or general reputation. 22 C.J. 212-213; 31 C.J.S. 938-39; 19 C.J. 427-28; 28 C.J.S. 38; Pfister v. Dascey, 68 Cal. 572, 10 P. 117; Ferguson v. Wright, 113 N.C. 537, 18 S.E. 691; Petition of Oganesoff, 20 F.2d 978. (9) Facts of only special or limited interest to the community cannot be proven by general reputation or hearsay. Thompson v. Ish, 99 Mo. 160, 12 S.W. 510; Diehl v. Green Fire Brick Co., 299 Mo. 641, 253 S.W. 984; Council v. St. L.-S. F.R. Co., 123 Mo.App. 432, 100 S.W....