State ex rel. Attorney Gen. v. Mason

• Decision Date: 31 October 1882
• Citation: 77 Mo. 189
• Parties: THE STATE ex rel. THE ATTORNEY GENERAL v. MASON.
• Court: Missouri Supreme Court

77 Mo. 189

THE STATE ex rel. THE ATTORNEY GENERAL

v.MASON.

Supreme Court of Missouri.

October Term, 1882.

Quo Warranto.

WRIT DENIED.

D. H. McIntyre, Attorney General, A. R. Taylor and E. T. Farish for relator.

John M. Krum, Chester H. Krum and Smith & Krauthoff for respondent.

HENRY, J.

This is a proceeding in the nature of a quo warranto, the object of which is to oust respondent from the office of sheriff of the city of St. Louis, which, it is alleged, he has usurped.

In his answer to the writ, the respondent alleges that, on the 7th day of November, 1880, at a regular election held in that city, he was duly elected to the office for a term of two years, commissioned and qualified, etc.; that again, at the regular election in 1882 he was elected to the same office, received a certificate of his election from the register of said city and a commission from the Governor of the State, that he took the oath of office, executed the bond required, and entered upon the discharge of the duties of the office, and has ever since held and now holds said office; that if not elected at the last election, no one else was, and that under the constitution of the State, if he does not hold under the election of 1882, he is rightfully in office under the election of 1880, and entitled to hold the same until some one shall have been duly elected and qualified as his successor.

The replication admits that respondent was duly elected in 1880, as alleged in the answer, but denies that he was elected in 1882. It admits that he received from the register a certificate of his election, that he was commissioned by the Governor, and qualified, etc., but alleges that there were counted 5,000 illegal ballots, as received by him, which deducted from the vote returned for him, left a majority of the legal votes cast in favor of Lawrence Harrigan, who was one of the competitors for the office. A motion was filed by respondent to strike out that portion of the replication relating to illegal ballots, and this presents a question, which, if determined in favor of respondent, is decisive of the case.

In the State ex rel. Attorney General v. Vail, 53 Mo. 97, this court, in an opinion delivered by Judge Napton, in which the subject is treated with the ability which distinguished that learned judge, observed: “The next inquiry is the allegation in the return, or answer, that the defendant was duly elected by a majority of the qualified voters. The court might pass over the plea as evasive and equivocal, but conceding it to be an indirect assertion that the defendant was elected by reason of the number of illegal votes cast for his competitor, the question is presented, whether the court will, in this proceeding undertake to examine the truth of this allegation. In our opinion we have no such power.” He then proceeds to give satisfactory and conclusive reasons why this court cannot enter into that investigation, among others, that: “The election law in this State affords ample means of contesting elections on the ground of illegality of votes cast; but a notice is required and specification of the names of all the voters objected to. 1 Wag....