State ex rel. Burden v. Walsh

• Decision Date: 30 April 1879
• Parties: THE STATE ex rel. BURDEN v. WALSH, city Register.
• Court: Missouri Supreme Court

69 Mo. 408

THE STATE ex rel. BURDEN

v.WALSH, city Register.

Supreme Court of Missouri.

April Term, 1879.

Original Mandamus.

Peter E. Bland for relator.

Leverett Bell for respondent.

HOUGH, J.

This is an application for a writ of mandamus to compel the respondent to issue to the relator a certificate of election, as collector of the revenue within the city of St. Louis.

The alternative writ recites that, at the general election held on the 5th day of November, 1878, in the city of St. Louis, in the State of Missouri, of which State the city of St. Louis is a political subdivision and a county, among other offices to be filled in the said city was the office of collector of said county, and ex officio collector of said State within said county, and at such election the relator, William Burden, was a candidate, together with other candidates for the said office, and he received the highest number of and a majority of all the votes cast for the respective candidates for said office, and thereby was duly elected and chosen to the same; and the respondent was, and is, the register of said city, and did examine and cast up the votes given to each candidate for said office, as well as for other offices, and found that William Burden had received the highest number of votes given any candidate for said office, and it was the duty of respondent to issue to said William Burden a certificate of his election to said office, which, however, respondent refuses to do.

The material portions of the respondent's return are as follows: Richard Walsh, register of the city of St. Louis, for his answer and return to the alternative writ of mandamus herein, says, that the city of St. Louis is a political subdivision of the State of Missouri, and is entitled the city of St. Louis, and is not known or denominated as the county of St. Louis, nor is it a county in the State of Missouri, but the county of St. Louis is another and a different political subdivision of the State of Missouri, and comprises territory lying entirely without the limits of the city of St. Louis. * * The respondent further states that the office of collector of the county of St. Louis no longer exists in the city of St. Louis, the office of that name once existing having been abolished by law; that there is, however, an office of collector of the city of St. Louis created by the charter of said city, and the incumbent thereof, is by law charged wth the duty of collecting the State and school taxes and revenue, levied within the the limits of St. Louis, as well as the city taxes and revenue, and said office is, by law, required to be voted for at a general election held in said city on the first Tuesday in April, 1877, and every four years thereafter, and the term of said office, as provided by law, is four years, and at the election held on the first Tuesday in April, 1877, one M. A. Rosenblatt was duly elected collector of the city of St. Louis, and duly qualified and was commissioned as collector, and entered upon the duties of said office, and is now discharging the same, and the official term of said Rosenblatt, as collector, will expire when his successor, to be elected at the election on the first Tuesday in April, 1881, shall qualify. Wherefore, the respondent says the ballots cast for relator for collector at the November election, 1878, were mere nullities, and possessed no validity, and relator is not entitled to a certificate of election as prayed for herein, nor any certificate of election; and having fully answered, respondent prays to be dismissed with costs. To this return the relator has demurred.

We are, therefore, to determine whether there is any such office as county collector of the city of St. Louis. Presented in this form the question may seem to be paradoxically stated, but it is the precise question before us. The counsel for the relator contends that the city of St. Louis is not simply a municipal corporation, but a county corporate; that the constitution has worked no extinction of county functions within its limits, and that with the exception of the county court, which has been superseded by the municipal assembly, all the laws establishing judicial and executive officers in the old county of St. Louis, and the whole mechanism of the government of the old county still survives in the government of the county corporate named “the city of St. Louis;” that the names only have been changed, the officers and functions remaining as before; in short, that the city of St. Louis is in point of political organization the old county of St. Louis under a new name, and the residue of the old county is a new county with the old name. These views have been supported in an elaborate and ingenious argument, which has received our careful attention, and if the positions assumed are incorrect, it must be conceded that there are some general and important provisions of the constitution which should be applicable to all the primary political subdivisions of the State, which are not susceptible of easy and perfect adaptation to the political entity created by the special provisions relating to the city of St. Louis.

This is, doubtless, attributable to the fact shown by the records of the convention which formed the constitution, that the provisions relating to the scheme and charter were added to the body of that instrument after it was mainly completed, and on the eve of adjournment,...