State ex rel. Attorney-General v. Steers

• Decision Date: 31 March 1869
• Citation: 44 Mo. 223
• Parties: STATE ex rel. ATTORNEY-GENERAL, Petitioner, v. JOHN H. STEERS, Defendant.
• Court: Missouri Supreme Court

44 Mo. 223

STATE ex rel. ATTORNEY-GENERAL, Petitioner,

v.JOHN H. STEERS, Defendant.

Supreme Court of Missouri.

March Term, 1869.

Johnson, Attorney-General, and Geo. H. Shields, for relator.

I. On an ex-officio information in the nature of a quo warranto, the court will look beyond the relator's certificate of election and commission, and, unless he has been legally elected, will give judgment of ouster. (The People ex rel. Benton v. Vail, 20 Wend. 12; The People ex rel. Van Vourt v. Van Slyck, 4 Cow. 297; The People ex rel. Yeates v. Ferguson, 8 Cow. 102; Attorney-General ex rel. W. H. Carpenter v. Ely, 4 Wis. 420.)

II. This irregularity can be cured by the testimony of the clerk, judges of election, or other parol evidence. (4 Wis. 420.)

III. The general rules of pleading apply to informations. (The People v. Clark, 4 Cow. 95; 23 Wend. 193, 223; 2 Watts & Serg. 407; 4 Seld. 62; 26 Mo. 496.)

IV. The plea that respondent was elected in 1866, and entered the office under competent authority, is no defense to the allegations in this information. (The People ex rel. Benton v. Vail, 20 Wend. 12; The People v. Van Slyck, 4 Cow. 291; The People v. Ferguson, 8 Cow. 102; The People v. Jones, 17 Wend. 81.)

Dryden, Lindley & Dryden, for defendant.

WAGNER, Judge, delivered the opinion of the court.

The attorney-general, on behalf of the State, appears and files an information in the nature of a quo warranto, in which, among other matters, he states that at the general election held in this State on the third day of November, 1868, in the various counties, for State and county officers, one Samuel C. McCune, and defendant John H. Steers, were candidates, and the only candidates, in the county of Ralls, for the office of sheriff of said county; that McCune received a majority of all the legal votes cast for said office, in the said county, at that election, and that the judges and clerks of election in the various election districts in said county so certified to the county clerks of said county; that, notwithstanding the fact that said McCune received the majority of all the legal votes cast for said office of sheriff, the county clerk and board of county canvassers, unlawfully, wrongfully, for alleged informality and illegality, rejected and refused to count the votes, as certified by the judges and clerks of election, cast for said office in Jasper election district, in said county; that the said defendant Steers, by the said illegal and wrongful action of the county clerk in refusing to count and take into consideration the said votes and poll-books of Jasper election district, illegally obtained from the county clerk of said county his certificate of election from said clerk, and on the said certificate of election the governor of the State issued his commission to the defendant as sheriff of said county, under which commission the said defendant now holds and executes the duties of the said office of sheriff.

The information then specifies the number of votes given, showing that, upon a counting of the whole vote of Ralls county, McCune was legally elected, and that, by the act of the clerk in throwing out the vote of Jasper election district, the result was changed, and a majority left for the defendant.

A judgment of ouster is demanded against the defendant, for the reason that he is usurping and exercising the duties of an office to which he has no just or legal claim.

The defendant, in answer, sets up the plea that at the regular election, in 1866, he was a candidate for the office of sheriff in Ralls county, and was duly elected; that he received a certificate of such election from the clerk of the County Court of said county, and that thereon he was duly commissioned by the governor to serve for two years, and until his successor should be duly elected and qualified; and the defendant further alleges that, in pursuance of his said election in 1866, and by authority of the said commission, he accepted the said office of sheriff, and still holds and executes said office, no successor to the defendant in said office having been duly elected and qualified, and the defendant not having been removed for malfeasance.

Upon these pleadings the case stands in this court. The information expressly alleges that the defendant is holding and exercising the functions of the office by virtue of the election of 1868, and in consequence of a certificate wrongfully issued by the clerk of the County Court, upon which a commission was issued. There is no express denial of the averment, but there is an answer-- argumentative, evasive, and negative in its character--stating that the defendant holds said office, no successor to him having ever been elected and qualified.

The information is a pleading which must be answered or demurred to, and it has been decided that the general rules of pleading are applicable to proceedings upon an information in the nature of a quo warranto. (People v. Clark, 4 Cow. 95; State ex rel. v. Bernoudy, 36 Mo. 297; State v. Messmore, 14 Wis. 115.)

The evasive answer, that no successor to the defendant had ever been qualified, is full of duplicity, and may be construed to mean that he holds under either election, no other person having succeeded him in the office. The allegation in the information is a plain, simple one, requiring a denial, which the defendant has not seen proper to make. A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office without having been legally elected, it is unlawful holding, and he may be ousted at the instance of the State, notwithstanding his commission. (Bashford v. Barstow, 4 Wis. 567.)

In the case of The People v. Van Slyck (4 Cow. 297), it was determined that an information in the nature of a quo warranto would lie against one intruding into the office of sheriff in consequence of an unlawful decision of the county board of canvassers, the duties of the board being ministerial, and not judicial. It is true that by force of existing law the officer holds until his successor is elected and qualified; but if, by unlawfully detaining his certificate and commission, he prevents the person legally entitled thereto from qualifying, he will not be allowed to set this up in defense, and reap a benefit from his own wrong.

The question, then, arises, by what authority did the county clerk, acting as a mere canvassing officer, assume to determine the legality of...