State ex rel. Attorney-General v. Pool

• Decision Date: 31 March 1867
• Citation: 41 Mo. 32
• Parties: STATE OF MISSOURI ex rel. THE ATTORNEY-GENERAL, Plaintiff, v. JAMES M. POOL, Defendant.
• Court: Missouri Supreme Court

41 Mo. 32

STATE OF MISSOURI ex rel. THE ATTORNEY-GENERAL, Plaintiff,

v.JAMES M. POOL, Defendant.

Supreme Court of Missouri.

March Term, 1867.

Information in the nature of Quo Warranto.

Glover & Shepley, for defendant.

I. The case turns upon the effect of the alleged commission issued by the Governor to Thomas Adamson for the same office, sheriff of Lafayette county, to which the pleadings admit Pool was legally elected. The new Constitution declares “the Governor shall commission all officers not otherwise provided by law”--Art. 5 & 25, R. C. 1865, p. 35.

If from the necessary operation of any law or laws in force it appears hat a sheriff shall discharge the duties of his office without a commission, then the said law or laws are to be considered a provision dispensing with a commission in such case. If this be so, it is evident that no commission need be issued by the Governor to any elected sheriff under our statutes--Ch. 25, R. C. 1865, p. 156.

It is important to the public interests that the evidence of the sheriff's title to his office and his obligation to the public shall be preserved and placed within the reach of all; hence the requirement to record--(1) The certificate of election; (2) the oath of office; (3) the endorsements thereof; (4) the official bond; (5) the approval and endorsement thereof;--and all this is cared for by section 7.

The Constitution itself contains a special provision in that respect to sheriffs which is very pertinent to this question. It says (art. 5 & 22): “There shall be elected by the qualified voters in each county, at the time and place of electing representatives, a sheriff and coroner; they shall serve for two years, and until a successor shall be duly elected and qualified, unless sooner removed for malfeasance in office, and be ineligible four years in any period of eight years. Before entering on the duties of their office they shall give security in such amount and in such manner as shall be prescribed by law.” This provision is the same in substance with that in the Constitution--R. C. 1865, p. 74, art. 9 & 16. This provision is fully satisfied by giving the bonds according to law. The 1st section of ch. 16, R. C. 1865, p. 138, declares that “all officers elected or appointed by the authority of the laws of this State shall hold their office until their successors are elected or appointed, commissioned and qualified.”

The New York statutes in relation to sheriffs is much like ours--People v. Holly, 12 Wend. 481; Hines v. Doubleday et al., 21 Wend. 223. These cases hold that the effect of giving bonds, and qualifying on the certificate of election, is to put the sheriff in his office, and that the election gives title to the office. One who has given bonds is an officer de jure-- Commonwealth v. Slifer, 25 Pa 31.

In Illinois it is held sheriffs are to be commissioned--The People v. Fletcher, 2 Scam. 486. The statute of Illinois, R. C. 1845, p. 514, directs the commission to be forwarded by the Secretary of State to the clerk of the Circuit Court of the proper county, and by him notified to the sheriff, who shall thereafter enter into bonds, &c.

Under the Kentucky Constitution of 1792 sheriffs were to be elected, and before entering upon the duties of office to give bond, take oath, &c.--1 Litt. 30. It was held under this provision that no commission was required--2 Litt. 61.

Sheriffs are commissioned in New Jersey, and the statute provides the means of laying before the Governor the facts of election and procuring his commission-- State v. The Governor, 1 Dutcher, 346; Rounds v. Mansfield, 38 Me. 588; Rounds v. Bonger, 46 Me. 541; Thomasson v. Justices, &c., 3 Humph. 233; Williamson v. Webb, 2 Humph. 233 State v. Yates, 1 Riley, 261; Allen on Sheriffs, 16-18.

II. But conceding that a sheriff elect is entitled to a commission in pursuance to his certificate of election, and that it is the duty of the Governor to issue such commission, the failure of the Governor to do so is not to vacate the office of the duly elected and inducted sheriff. The constitutional provision is: “The Governor shall commission all officers not otherwise provided by law.” It gives to the executive no discretion. If the Governor refuse to commission the officer, he violates the law; and no damage can come to the innocent party from such violation of the law. This constitutional provision does not mean that the Governor may commission any one else whom he pleases, and thus arbitrarily substitute his election for the election of the people.

The demurrer asserts that Pool was legally elected sheriff and was legally inducted; and simply because the Governor has commissioned one not elected, asserts for that commission an almighty and an arbitrary power. It cannot admit of doubt when the Constitution provided for the election of any officer, he secures the right to execute that office from the election, and the commission is only the evidence of this right. One who has no right is commissioned; he exercises the franchise without legal authority. The question is one of judicial investigation--Wammack v. Halloway, 33 Ala.; State v. Siegler, 1 McCord, 239; State v. Fulkerson, 10 Mo. 681.

III. The incumbent was legally elected. So the pleadings admit; but his commission, if he has a right to one, is illegally refused by the Governor. His title to the office is shown by his election; he is therefore no usurper, no intruder. If turned out of office, it must be because the Governor is legally bound to issue him a commission--Low v. The Governor, 8 Geo. 365; Taylor v. Governor, 1 Ark. 21; Marbury v. Madison, 1 Cranch, 50; Bonner v. Pitts, 7 Geo. 473; Stokes v. Kendall, 12 Pet. 524; Pacific R. R. v. The Governor, 23 Mo. 353.

Attorney-General Wingate, for plaintiff.

WAGNER, Judge, delivered the opinion of the court.

The information in this case charges that Thomas Adamson, being eligible, was elected sheriff of Lafayette county at the regular election November 6, 1866. and in due time gave bond as required by law, and was commissioned and qualified as such; that James M. Pool, about the 1st day of January, 1867, did, at said county, unlawfully intrude into and usurp said office of sheriff, and is now usurping and holding said office illegally, and prays the issuance of a...