State ex rel. Bradshaw v. Sherwood

• Decision Date: 29 February 1868
• Citation: 42 Mo. 179
• Parties: STATE, TO USE OF BRADSHAW, Appellant, v. WM. M. SHERWOOD et al., Respondents.
• Court: Missouri Supreme Court

42 Mo. 179

STATE, TO USE OF BRADSHAW, Appellant,

v.WM. M. SHERWOOD et al., Respondents.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Buchanan Circuit Court.

Vories, Hall & Oliver, and Parker, Strong & Chandler, for appellant.

I. This action is not brought to try the right of the respective parties to the office, but to recover damages for a breach of the official bond of an officer. The only question which could arise in such case, upon a demurrer, is, Does the petition show a breach of the conditions of the bond? If it does, then all other questions which may arise are questions concerning the amount of damages. It is admitted by this demurrer that the election was properly held; that the poll-books were properly certified to Sherwood; that Bradshaw had a majority of the qualified votes cast and certified; that it became the duty of Sherwood, under the law, to cast up the votes in eight days, and give the certificate of election to the one having the highest number of votes; that he, with a view to defraud and injure Bradshaw, failed and refused to either cast up the votes or give the certificate; but that he falsely and fraudulently issued a certificate of election to Pinger. All this being admitted, it is difficult to see how it could be shown that Sherwood had faithfully discharged the duties imposed upon him by law. The question as to what facts plaintiff would be able to show in evidence as a ground of actual pecuniary damages, cannot arise upon this demurrer. If a breach of duty is shown, he has a cause of action for something. (Ashby v. White, 1 Sm. Lead Cas. 290; State for Bell v. Harrison, 38 Mo. 540; Jenkins v. Waldron, 11 Johns. Ch. R. 120; People v. Rives, 27 Ill. 246, 247; United States v. Kendall, 12 Pet. 614, 615.)Jones, Hunter, Hill & Hereford, and Bassett & Pike, for respondents.

I. the office of collector of the State and county revenue for Buchanan county is credited by a statute specially applicable to Buchanan county. (Adj. Sess. Acts of 1863-4.) The statutes of Missouri also provide an ample and adequate remedy for plaintiff, provided the clerk of the County Court awards the certificate of election to a person not having a majority of the legal votes. It also provides for the punishment of the county clerk by indictment, or he may be sued for two hundred dollars damages in a civil action for a violation of duty. (Gen. Stat. 1865, p. 65, § 39; p. 66, §§ 50, 52-59.) And where a new right is conferred by statute, and specific relief given for a violation of that right, all other jurisdictions are ousted. The party is denied all common law remedies, and strictly confined to the remedy given by statute. (Sedg. on Cons. Stat. 94; 22 U. S. Dig. 13, § 19; 21 id. 11, §§ 16, 19; 19 id. 12, §§ 2, 4, 5, 6; 18 id. 12, § 9; 17 id. 10, § 10; 3 Comst. 9; 1 Met. 130; 6 Mass. 39; 36 Mo. 543, 547.)

II. Plaintiff cannot recover, by reason of claiming a right to the office, until such right has been established by a direct contest, either by quo warranto or mandamus. Where, as in this case, the office is already filled by an officer de facto, the right to the office can only be established by quo warranto, making Pinger, the officer de facto, a party thereto. (21 Pick. 148; 6 Cow. 23; 17 Conn. 585; 5 Hill, 616; 10 Mo. 632; 35 id. 146; 36 id. 71; 38 id. 540; 9 Mass. 234; 37 Me. 423.)

III. The certificate delivered by Sherwood to Pinger is conclusive in every form in which a question of the right to the office can arise, except where there is a direct proceeding, in the nature of quo warranto, against the officer de facto. (20 Wend. 12; 17 id. 81; 24 Barb. 203.)

IV. Where an officer fails to do an act, and the failure results in a common injury, he can only be proceeded against by indictment. Where, however, a private person sues for neglect of duty, he must aver in his declaration some special damage in regard to a violation of a right vested in him. This declaration shows no such violation. (18 How. 396.)

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, in the Buchanan Circuit Court, against the defendants, Sherwood and his securities, on an official bond, alleging a breach of the condition thereof, and claiming special damages.

The petition states that, at the November election, 1866, the plaintiff Bradshaw and John Pinger were candidates for the office of collector of the State and county revenue for Buchanan county, Missouri; that at said election two thousand seven hundred and ninety-seven votes were cast, by the qualified voters of the county, for the said office of collector; that of these votes one thousand three hundred and ninety-nine were cast for Bradshaw, and one thousand three hundred and ninety-eight for Pinger, and that Bradshaw, having received a majority of the votes, was therefore duly elected.

The petition further states that Sherwood, being county clerk of the county of Buchanan, disregarding his duties in the premises, failed, neglected, and refused to cast up the votes given to each candidate for said office of collector, as certified and returned to him, within eight days from said election, or at any other time; and that he still fails, refuses, and neglects to give to the said Bradshaw a certificate of his election, notwithstanding Bradshaw has received a majority of all the qualified votes at said election for the said office of collector; that Sherwood, being clerk as aforesaid, with intent to injure and defraud Bradshaw, and to unlawfully deprive him of the emoluments of said office, did, on the _____ day of November, 1866, unlawfully, willfully, falsely, and fraudulently, issue the certificate of election to the office of collector, to the said John Pinger, and then and thereby deprived Bradshaw of the office and emoluments to which he had been legally elected, to his damage in the sum of twenty thousand dollars, for which he brings the statutory suit on the clerk's...