State ex rel. Attorney v. McCann

• Court: Missouri Supreme Court
• Writing for the Court: EWING
• Citation: State ex rel. Attorney v. McCann, 81 Mo. 479 (Mo. 1884)
• Decision Date: 30 April 1884
• Parties: THE STATE ex rel. THE CIRCUIT ATTORNEY v. MCCANN, Appellant.

81 Mo. 479

THE STATE ex rel. THE CIRCUIT ATTORNEY

v.MCCANN, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. J. McCann and A. R. Taylor for appellant, cited R. S. 1879, §§ 2805, 2807, 2809; Cooley's Const. Lim., p. 646; Leonings v. Co., 20 N. Y. 447; McCrary on Elections, §§ 69, 186, 191, 231, 238, 249, 253, 261, 263 and notes; People v Ohio Grove, 51 Ill. 191; State v. Boal, 46 Mo. 529. The case of the State ex rel., etc., v. Ranson, 73 Mo. 78, is inapplicable to the facts of this case.

E. A. B. Garesche and John M. Holmes for respondent.

EWING, C.

This is an information in the nature of a quo warranto to the circuit court of St. Louis, wherein it is stated that Vincent F. Mullery was a duly elected and qualified justice of the peace in a certain district in St. Louis, elected in November, 1878, for the term of four years; that he resigned October 29th, 1879. That, thereupon, Michael I. Mullery was appointed as his successor by the mayor of St. Louis, and qualified and entered upon the duties of his office. That on the 18th of November, 1880, the respondent, McCann, usurped said office of justice of the peace, and is unlawfully exercising the same.

The respondent, for return to the writ issued to show cause, admits Vincent F. Mullery's election and resignation and appointment of Michael I. Mullery by the mayor, but alleges that, at the time, Michael I. Mullery was not a resident of the district for which he was appointed, and was, therefore, ineligible, and the office became vacant, until McCann's election in November, 1880, and claims the office by virtue of his election. The relator demurred to this return, because, under the law, no legal election could be held for justice of the peace. This demurrer was sustained, and the respondent not pleading further, judgment of ouster was entered, from which respondent appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed, and the respondent again appealed to this court.

The question for consideration and decision in this case is, has the respondent usurped the office of justice of the peace, as alleged by the relator? The question of Mullery's eligibility is not necessarily before the court. If Mullery cannot hold the office for any cause, it does not, therefore, follow that McCann is legally entitled to the office. State ex rel. Attorney General v. Townsley, 56 Mo. 107; State ex rel. Attorney General v. Vail, 53 Mo. 97. The respondent, as we have seen, claims title to the office by virtue of an election on November 5th, 1880, and by authority of a commission issued by the mayor to respondent. This being undisputed, the question resolves itself into an inquiry as to the validity and legality of the election of...