State ex rel. Beach v. Finn

• Decision Date: 03 July 1877
• Parties: STATE OF MISSOURI, EX REL. L. B. BEACH, v. JOHN FINN.
• Court: Missouri Court of Appeals

4 Mo.App. 347

STATE OF MISSOURI, EX REL. L. B. BEACH,

v.JOHN FINN.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1877.

1. The city of St. Louis, under the Constitution of 1875, though not a “county” in the sense in which that word is ordinarily used in the Constitution, is in a qualified sense a county being a “legal subdivision of the State” which bears county relations to the State, and having many important attributes of a county.

2. In a proceeding by quo warranto to try the title to the office of sheriff of the city of St. Louis, the question is not as to a de facto office, but as to the de jure title to the office. In theory of law, the Scheme and Charter became the organic law of the city and county of St. Louis before the general election of November, 1876, and accordingly no such de jure office as sheriff of the (old) county of St. Louis existed at the time of that election. The commission issued, in consequence of an assumed election, at that time, to a candidate for that supposed office, did not avail to give more than color of title.

3. At the general election in November, 1876, no votes were cast for sheriff of the new county called the “City of St. Louis.” Afterwards, that city having been organized, and being “a county” * * * “hereafter established,” within the meaning of the last clause of section 10 of article 9 of the Constitution, it became the duty of the governor to appoint a sheriff. Held, that the respondent, being possessed of the necessary qualifications, was properly appointed and was entitled to the office.

APPLICATION for quo warranto.

Judgment for respondent.

C. C. SIMMONS, for relator: The city of St. Louis is not a county.-- The State v. Merriman, 6 Wis. 14. Where a county is divided, that portion in which a county government is for the first time organized is the new county.-- The People v. Maguire, 32 Cal. 140; Buckinghouse v. Gregg, 19 Ind. 401; 9 Texas, 336; 12 Texas, 395; 25 Texas, 29; 18 Mo. 566; 17 Mo. 576. Where an officer holds under color of right, the office cannot be filled by appointment until the conflicting claims have been determined by judicial proceedings instituted for that purpose.-- Tappan v. Gray, 9 Paige Ch. 507; Stokes v. Kirkpatrick, 1 Metc. 138; The State v. Lusk, 18 Mo. 133; The State v. Kent, 47 Mo. 301; 9 Barr, 573; 1 Ill. 75; 2 N. H. 202.

FARISH & GRIFFIN, for respondent.

HAYDEN, J., delivered the opinion of the court.

This is an information in the nature of a writ of a quo warranto, to try the title of respondent to the office of sheriff of the city of St. Louis. The petition charges that by the Constitution of the State of Missouri, and the laws enacted thereunder, it is provided that there shall be elected a sheriff for each county of the State, and also one for the city of St. Louis; that on January 16, 1877, the respondent usurped and intruded into the office of sheriff for the city, and from then till now has exercised and usurped its functions without legal right, and still does so. The answer denies the usurpation; admits that at the time alleged the respondent did, and now does, exercise the functions of the office; and sets up that on October 22, 1876, there was, under the Constitution and laws of Missouri, created and established a new county or political subdivision of the State, called the “City of St. Louis;” that on June 6, 1877, the governor of the State of Missouri appointed the respondent sheriff of the city of St. Louis, and that he was thereafter, and before the filing of the petition, duly commissioned and qualified as such. A demurrer to the answer being overruled, a reply was filed, which denies the creation or establishment of a new county or political subdivision of the State, called the “City of St. Louis,” or that the city of St. Louis is now, or ever has been, a legal county of the State of Missouri, or that there is any authority in the Constitution or laws of the State for the creation or organization of any county to be known as the “City of St. Louis,” so as to entitle the governor to appoint a sheriff for the city of St. Louis, which, the reply avers, is merely a city. The relator then alleges that at the date of the pretended appointment the defendant was not, and is not now, legally qualified for the office of sheriff for the city, in this, that he had not been a citizen of the city for two years previously to his appointment.

At the trial, the burden of proof being upon the respondent, he produced a commission from the lieutenant and acting governor of the State of Missouri, of date June 6, 1877, appointing and commissioning him “sheriff within and for the city of St. Louis, of the State of Missouri,” etc., authorizing him to hold the office “until the general election of 1878,” and with the commission put in evidence the oath of office, and bond approved by the Circuit Court of St. Louis County. This shifting the burden of proof, the relator offered in evidence a commission of the governor of Missouri to Emile Thomas, of date November 22, 1876, reciting the election of the latter on November 7, 1876, as sheriff of the county of St. Louis, and commissioning him “for the term of two years, as specified by law,” etc., and also the oath of office and bond. The relator then offered in evidence a commission from the governor of Missouri to Emile Thomas, of date November 16, 1874, commissioning him as sheriff for the county of St. Louis for two years, and also his oath of office and bond. These papers the respondent objected to as irrelevant. The relator then gave evidence, with a view to support the allegations of the reply, to the effect that when commissioned the respondent had not been for two years a resident of the city of St. Louis.

The question in this case is not whether the city of St. Louis, as now organized under the Scheme and Charter, is a county in the sense in which that word is used in the Constitution to describe the normal county of the State. It is not such a county. It has not, nor was it intended to have, a County Court, and it has “a chief executive and two houses of legislation.” In spite of these and other features which distinguish it from the normal county, it may be a county so far as to keep up a relation as such to the rest of the State. It may be a part of the general county system, and it is so unless the framers of the Constitution intended to segregate it, and to dissever, in the case of St. Louis, that county relation which every other portion of the State bears to the State. Because the organization of this body as a city is pronounced and its features strongly marked, and because they thus reduce its attributes as a county into comparative insignificance, it does not follow that the latter do not exist. That the body has some of the attributes of a county cannot be denied. Under the Constitution it sends representatives to the General Assembly, it collects State revenue, it forms part of the territory over which State officers and the courts of the State have jurisdiction; and it cannot be denied that it is a county in the sense in which that term is used when, if not a definition, at least the nearest approach to a definition which the Constitution affords is attempted,--“a legal subdivision of the State.” Art. 10, sec. 1.

In the 20th section of the 9th article of the Constitution the separation of the city, as proposed to be enlarged, from the rest of the county is provided for. To the city thus enlarged are to be given features not possessed by the old corporation; while “the residue of St. Louis County” is to be reorganized under a new county government, and is then to constitute, not the old county, but St. Louis County, known as such, consisting of “the residue of St. Louis County.” In providing for the separation and the scheme, in this and immediately succeeding sections the framers of the Constitution had occasion to repeatedly designate the two bodies, which, in their view, were to become two new organizations,--one, the “city thus enlarged,” and the other, “the residue of St. Louis County.” Naturally, these two bodies are referred to as “the city” and “the county.” The city was regarded as such, because the object was to make provision for its municipal features properly so called. Until the law-givers reached the middle of the 23d section there had been no occasion to consider the city in its relations to the State. Now, for the first time, a distinct phase of the subject is presented, and the law-giver, bearing in mind that the body has hitherto been treated in its purely municipal character, and has been clothed with attributes which apparently make it something different from a county, after providing that it shall possess two great distinctive features of counties, adds the sweeping words, “and perform all other functions in relation to the State in the same manner as if it were a county as in the Constitution defined.” Thus, though the body lacks some of the attributes that attach to the ordinary county; though, for instance, it possesses no County Court, and the Constitution says “in each county there shall be a County Court;” yet the words which have been quoted, when considered, as by the rules of construction they must be, in connection with the context, plainly indicate that the...