State ex rel. Attorney Gen. v. Vail

• Decision Date: 31 July 1873
• Citation: 53 Mo. 97
• Parties: STATE OF MISSOURI, ex rel., Attorney General, v. JAMES H. VAIL, Respondent.
• Court: Missouri Supreme Court

53 Mo. 97

STATE OF MISSOURI, ex rel., Attorney General,

v.JAMES H. VAIL, Respondent.

Supreme Court of Missouri.

July Term, 1873.

Quo Warranto.

H. Clay Ewing, Attorney General, and John L. Thomas & Bro. and Louis F. Dinning, for Relator.

I. This Court has jurisdiction. (Const., Mo., Art. VI. § III.)

II. This case must proceed by com. law, because in such cases in this State we have only com. law and equitable remedies.

III. A commission issued to a party by the Governor is not conclusive as against the State, complaining through her proper officer. (44 Mo., 223; 45 Mo., 59; 18 Lou., (An.) 517; State vs. McAdoo, 36 Mo., 453; State vs. McBride, 4 Mo., 303; 44 Mo., 229; 44 Mo., 230; 44 Mo., 160; 15 Johns., N. Y., 388; 45 Mo., 59; 36 Mo., 279; 44 Mo., 129.)

In the cases cited by respondent the Court refused to entertain jurisdiction, because it was held that another tribunal, had by statute, exclusive jurisdiction, as to the legality of votes, &c., and not because of the conclusiveness of the commission. (State vs. Garrigues, 28 Penn., (State R.) 9; 35 Penn., (State R.) 263; 44 Penn., (State R.) 332; State vs. Marlow, 15 Ohio, (State R.) 134.)

IV. On an ex-officio information in the nature of Quo Warranto, the Court will look beyond the Commission, and unless the Respondent has been elected, will give judgment of ouster. (People vs. Vail, 20 Wend., 12; 4 Cow., 297; 8 Cow., 102; 4 Wis., 420; State vs. Chandler, 45 Mo., 452, and cases there cited.)

V. An officer derives his title from the election or appointment. (Hunter vs. Chandler, and State vs. Steers, supra.)

VI. The commission is at best only prima facie evidence of Respondent's right to the office, as already determined by this Court in this case at the February term.

VII. In a proceeding of this kind, the canvass made by the returning officers under our election laws is alone admissible in evidence, not even a mistake in addition can be corrected. (State vs. Garrigues, 28 Penn., (State R.) 9; State vs. Marlow, 15 Ohio, (State R.) 134.)

VII. If when one man, (the defeated candidate) complains, this Court will go behind the commission, certainly when the whole State enters her protest, the Court will go behind the commission. When a party is a candidate, and inelligible to hold the office to which he aspires, and receives a majority of the votes cast for that office, the opposing candidate, who is elligible, cannot oust the inelligible party who is in office;--but the want in elligibility in the office is a matter of public concern, and he can be ousted on an ex-officio information. (56 Penn., 270.)

IX. Where two candidates run for an office, and the one receiving the highest number of votes is inelligible, the party receiving the minority of votes, is not to be returned as elected. (Commonwealth vs. Cluley, 56 Penn.,St., 270; State vs. Giles, 1 Chand., (Wis.) 112; State vs. Swearingen, 12 Geo., 23; State vs. Gastinel, 18 Lou., (An.) 517; 21 Lou., (An.) 290. Leading cases on contested elections, 144, 300, 305.) If such inelligibility, is of such a character that the voters are bound to take notice of it, it has been held otherwise. (Gulick vs. Newby, 14 Ind., 93.)

X. We have a right in this case, to inquire into all questions of rights of electors, &c., and the fact that the same thing can be done in a contested election, does not estop the inquiry in a quo warranto. (Leading cases in contested elections, 480, 493; 44 Mo., 226.)

XI. Where the persons, on whose right to vote the validity of the defendant's title depends, were at the time of his election in the actual possession of the franchise, in virtue of which they voted; at the trial no inquiry can be made into their right, unless an issue has been taken on it. (5 Bac. Ab., 188.)

Leonard, Reynolds & Relfe, for Respondent.

I. There are three writs: First, the old Writ of Quo Warranto; a civil proceeding, always without any incidents of a criminal prosecution, instituted in the name of the State, by the Attorney General it is true, and at his suggestion and application, but not in the style of “The State at the relation of the Attorney,” and not charging that the defendant “has and does now usurp, intrude into, and unlawfully exercise the powers and duties of a public office and trust,” (a misdemeanor), but merely requiring him to exhibit his warrant, that is, his commission.

Second: The common law process of an information in the nature of a Quo Warranto, always a criminal procedure holding the defendant to answer by summary process, for a misdemeanor and making him liable to a fine and to ouster from office.

Third: The Statutory process by information in the nature of a quo warranto exhibited under the Statute, at the relation of a private person, always a civil procedure in existence solely by statute and only available in the Statutory manner. (State vs. St. Louis Perpetual Marine Ins. Co., 8 Mo., 330; 3 Black., 263; Willcock on Quo Warranto “Information” (Law Library, Vol. 12, p. 247); State vs. Ashley, 1 Ark., 279; Rex vs. Marsden, 3 Burrows, 1817; Tancred on Quo Warranto,5, 52, 3; Comyn's Digest, “Quo Warranto;” 4 Comyn's Digest “Information;” 4 Black., 312; Bacon's Abridgment ““Information;” Cole on Quo Warranto Informations, § 110 (54 Law Library, O. S., 89). The old statutory writ of Quo Warranto exists in this State by force of statute. (W. S. 886.) This court has undoubted authority to “issue here and determine” that writ. (Const. Mo., Art. 6, § 3.)

The English Statutes, reducing informations in the nature of quo warranto to a form of action between the parties, essentially a civil action, are in substance adopted and in existence in this State. (G. S., 1825, § 1, p. 654; W. S. 1133.) In proceedings under these acts, this Court by force of the acts, and of its organic act, has appellate jurisdiction only.

The present proceeding is not one instituted under our Statute; it is not by the Attorney General or Circuit Attorney, at the relation of a private individual. Nor is it the old writ of Quo Warranto, for, in the first place, it is brought, not in the name of the State at the relation of the Attorney General, and in the second place, it specifically charges the defendant with a misdemeanor, for which, if convicted, the punishment must be a fine or imprisonment.

There can be no doubt but that it is, just what this Court has already held it to be, the old common law process, “an information in the nature of a quo warranto,” always a criminal procedure; in other words, the defendant by this action for an indictable offense is proceeded against criminally by information. (State, ex rel., Vail vs. Clark, 52 Mo., 508.)

II. The usurpation of a public office or trust, being a misdemeanor punishable by fine or imprisonment, is an indictable offense. (W. S., 478, § 24; 516, § 30.)

III. Since the charge is an indictable offense, the respondent cannot be proceeded against criminally by information, but is entitled to a trial by jury. (Const. Mo., Art. 1, § 14; State vs. Ashley, 1 Ark., 279; Bank of Vincennes vs. The State, 1 Blackf., 267.)

IV. When the Constitution of our State, in the “Declaration of Rights,” contains a positive inhibitation upon proceedings against a citizen for any indictable offense, other than those named by information, it is very obvious that, when in the 3d Section of the 6th Article it gives this Court power to issue, hear and determine writs of quo warranto, it did not intend to include in it a power to issue, hear and determine writs necessarily involving a proceeding against one criminally, for an usurpation of a public office or trust, that having been made indictable.

V. The Respondent was originally in this office, by a commission, the legality of which is not controverted. No one else has been commissioned or qualified as his successor, to whom he could turn over his office, consequently there can be no usurpation on his part, and no vacancy in this office. (W. S., 963.)

VI. The issuing of commissions is confided to the Governor, and no other branch of the Government can interfere. (State vs. The Governor, 39 Mo., 388; State vs. Howard Co. Ct., 41 Mo., 251.)

VII. If the judiciary cannot compel the Executive to issue a commission, or prevent him from doing so in the first instance, they cannot afterwards, at the instance of a subordinate officer of the Executive, and without the intervention of private rights, nullify that commission, indirectly doing that which they have said they cannot do directly.

VIII. The Executive in issuing a commission acts ministerially and politically, and is not answerable to the Courts for his acts; and having acted on a subject within the scope of his constitutional authority, it is to be presumed that his acts are lawful. (State vs. The Governor, 1 Dutcher (N. J.) 348; Gulick vs. New, 14 Ind., 96; Marbury vs. Madison, 1 Cr., 49; Hawkins vs. The Governor, 1 Ark., 570; Exparte Dennett, 32 Maine, 508; Cooley Const., Limit. 41.)

IX. When the respondent shows his commission, issued by the Governor, as Chief Executive of the State, as a justification for his action, it is conclusive upon the state in a proceeding by a subordinate executive officer, instituted for the purpose of ascertaining whether or not he has that authority.

X. The rule which makes a commission prima facie evidence, so far as the State is concerned, in drawing salary from the State, certainly will embrace all inquiries by the State. (State vs. Draper, 48 Mo., 213; State vs. Mosely, 34 Mo., 375; State vs. Mosely, 36 Mo., 70; Winston vs. Mosely, 35 Mo., 146.)

XI. The commission, when issued, must be taken as at least prima facie evidence, that the person holding it is lawfully entitled to the office. (State vs. Howard Co. Ct., 41 Mo., 247; State vs. Pool, 41 Mo., 32; Hunter vs. Chandler, 45 Mo., 452.)

XII. So far as an inquiry by the State is concerned, the action of the Governor in granting the commission is conclusive. No private rights can be inquired into or determined in this...