State ex rel. Ewing v. Townsley

• Citation: 56 Mo. 107
• Parties: STATE OF MISSOURI, ex rel., H. CLAY EWING, ATTORNEY GENERAL, Relator, v. CHAS. P. TOWNSLEY, Respondent.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 107

STATE OF MISSOURI, ex rel., H. CLAY EWING, ATTORNEY GENERAL, Relator,

v.CHAS. P. TOWNSLEY, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Information in nature of a Quo Warranto.

R. E. Rombauer & Geo. D. Reynolds, for Defendant.

The returns and abstracts in the County Clerk's Office were not conclusive but only prima facie evidence, and the defendant should not have been forbidden to go behind them.

That defendant's position is correct, will appear from the following authorities and uniform adjudications on this subject in this and other States; (Cooley, Const. Lim., 3d ed., § 623; Mayo vs. Freeland, 10 Mo., 630; State, ex rel. Bell vs. Harrison, 38 Mo., 540; State vs. Rodman, 43 Mo., 256; Brown vs. Hixon, 45 Mo., 340; State ex rel. Att'y Gen. vs. Steers, 44 Mo., 225; State, ex rel. Att'y Gen. vs, Vail, 53 Mo. 225; People vs. Van Slyck, 4 Cow., 297; People vs. Ferguson, 8 Cow., 102; People vs. Vail, 20 Wend., 12; People vs. Seaman, 5 Denio, 409; People vs. Cook, 8 N. Y., 67; Attorney General vs. Barstow, 4 Wis. 567, 792; Attorney General vs. Ely, 4 Wis., 420; State, ex rel. Gates vs. Felter, 12 Wis., 566; State, ex rel. Field vs. Avery, 14 Wis., 122; People, ex rel. Att'y Gen. vs. Tisdale, 1 Dougl., 59; People vs. Higgins, 3 Mich., 233; Dishon vs. Smith, 10 Iowa, 211; People, ex rel. vs. Matteson, 17 Ill., 167; Taylor vs. Taylor, 10 Minn., 107; People vs. Jones, 20 Cal., 50; Calaveras County vs. Brockway, 30 Cal., 325; State vs. Johnson, 17 Ark., 407; Wammack vs. Holloway, 2 Ala., 31; Marshall vs. Kerns, 2 Swan., [[[[[Tenn.] 68).

NAPTON, Judge, delivered the opinion of the court.

This is a proceeding by the State, through the Attorney General, by way of information in the nature of a quo warranto, to try the right of defendant to the office of judge of the sixth judicial circuit.

The defendant, by way of plea, set up that he was duly elected on the first Monday in November, 1868; that within due time the Secretary of State, in the presence of the Governor, opened the returns and cast up the votes given in the counties composing said circuit, and that said Secretary certified to the Governor that said defendant had received the highest number of votes at said election; and thereupon the Governor issued a commission to said defendant for six years, etc.

To this plea or answer there was a replication denying all the facts stated in the plea, and then specifically alleging the facts to be as follows: That at said November election there were two candidates for circuit judge of the sixth circuit, to-wit: the defendant and one William T. Wood; that said circuit was composed of the counties of Cass, Johnson, Pettis, Saline, Lafayette and Jackson; that at said election said defendant received 6656 votes, and the said Wood, 6912 votes; that in fact, the vote in Cass county for defendant was 1014, in Johnson county, 1374, in Pettis county, 957, in Saline county, 584, in Lafayette county, 901, and in Jackson county, 1429, in all 6078; that Wood received in Cass county, 1158 votes, in Johnson county, 937, in Pettis county, 830, in Saline county, 392, in Lafayette county, 556, in Jackson county, 3039, in all, 6912 votes. The plaintiff avers that the returns of all said votes so cast were duly made to the Secretary of State, in due time and manner; that it was the duty of said Secretary to open said returns in presence of the Governor, &c., and cast them up, and give to the candidate having the highest number of votes a certificate of his election, but that said Secretary did not open the returns from Jackson county as provided by statute, but refused to do so, whereby said Wood was deprived of the benefit of 3039 votes given to him in said Jackson county, and tha said certificate in favor of defendant was fraudulent and false, and further, that said returns from Jackson county in said Secretary's office are lost or destroyed.

The rejoinder merely denied in a variety of forms the specific allegations of the replication and repeated the statement in the plea.

The defendant demanded a jury to try the issues of fact made by the pleadings, and the parties not being able to agree on the county to which the case should be sent, this court ordered the case to Jackson county to have the issues determined. These issues were: First, did the Clerk of the County Court of Jackson county send the Secretary of State, at Jefferson City, an abstract of the returns of the election held in November, 1858, in Jackson county, including the election of circuit judge for the sixth judicial circuit, by mail or otherwise? Second, did returns of the election exist from which said abstract was made? Third, did the Secretary of State receive said abstracts at his office by mail? Fourth, if such abstract was not received by the Secretary of State, did he send a messenger for such abstracts at any time within forty days from the time of the election? Fifth, who were candidates for circuit judge at that election, as indicated by the returns, and what number of votes did each receive, according to the returns or abstract? Sixth, did the Secretary of State include the vote of Jackson county in counting the votes for the candidates for the office of judge of the circuit court at the election in November, 1868?

On December 1, 1873, the case came up for trial in the Circuit Court of Jackson county, and the defendant applied for a change of venue, on the ground of the prejudice of the inhabitants of said county against him, which was overruled. This application was supported by the affidavit of the defendant. An application was then made for a continuance, on account of the absence of Thomas C. Fletcher and Francis Rodman, material witnesses for the defendant, which motion was also overruled, but the defendant was allowed ten days in which to procure the testimony of said Rodman and Fletcher.

At the expiration of the ten days, the case was again called. and the State, through the Attorney General, proceeded with the testimony, and no evidence whatever was offered by the defendant, and the jury returned the following verdict:

First--That the Clerk of the County court of Jackson county did send to the Secretary of State such abstract by mail.

Second--That returns of the election from which said abstract was made, did exist.

Third--That the Secretary of State did receive said abstract at his office by mail.

Fourth--That said abstract was received, and that the Secretary of State did not send such messenger.

Fifth--That C. P. Townsley and W. T. Wood, were candidates for circuit judge at said election; and that the said C P. Townsley received at said election, 1429 votes; and the said W. T. Wood, received 3039 votes, according to the returns and abstract.

Sixth--That the Secretary of State did not include the vote of Jackson county in counting the votes for the candidates for the office of judge of the Circuit Court, at the election in November, 1868.

The evidence on the trial of these issues was altogether one way. The depositions of Governor Fletcher and the Secretary of State, Rodman, and the present Secretary, Weigel, and the clerk and deputy clerk of Jackson county, all established, without the least contradictory evidence, that the returns from Jackson county of the election in November, 1868, were duly made out and an abstract of them forwarded to the Secretary of State, and were duly received by said Secretary; and were not counted by these officials in declaring the results and...