State ex rel. Guion v. Miles

• Decision Date: 27 February 1908
• Citation: 109 S.W. 595,210 Mo. 127
• Parties: THE STATE ex rel. EDWARD E. GUION v. JAMES P. MILES et al
• Court: Missouri Supreme Court

109 S.W. 595

210 Mo. 127

THE STATE ex rel. EDWARD E. GUION v. JAMES P. MILES et al

Supreme Court of Missouri

February 27, 1908

Peremptory writ awarded.

Walter B. Douglas for relator.

(1) Since the passage of the Act of March 13, 1901, the Democratic City Central Committee of St. Louis has ceased to be a voluntary association and has become a legally constituted body, governed by the statute. Laws 1901, p. 161; People ex rel. v. Dem. Gen. Com., 164 N.Y. 335; State ex rel. v. Witthoeft, 117 Mo.App. 625. (a) The law provides that the members of the committee shall be elected biennially at the primary elections. Laws 1901, p 161, sec. 21. A large portion of the expense of these primary elections is borne by the public. P. 149. (b) The committees are not made judges of the election and qualifications of their members. Laws 1901, p. 149. (c) The right of committees to make rules is recognized by law, but it is provided that "The rules and regulations of parties, and of the conventions and committees thereof, shall not be contrary to or inconsistent with the provisions of this act, or of any other law of this State." Laws 1901, p. 161, sec. 21 subdiv. 2. (d) Since the law provides for the election of committeemen, by the direct vote of the people, for a term of two years, no committee has the right to adopt or enforce a rule that a committeeman might be expelled for being absent without reasonable excuse from three consecutive meetings. People ex rel. v. Dem. Gen. Com., 164 N.Y. 335; State ex rel. v. Witthoeft, 117 Mo.App. 625. Such committee has no right to expel a member for any cause without a hearing. (2) That mandamus is the proper remedy to compel the restoration of a party to any office or franchise of a public nature is settled beyond question. St. Louis County Court v. Sparks, 10 Mo. 117; 3 Blackstone, 110. To the same effect are: High on Extraordinary Legal Remedies, secs. 67-72, 407-408; 2 Bailey on Jurisdiction, secs. 707-710; 2 Spelling, Extraordinary Remedies, sec. 1576; Merrill on Mandamus, sec. 148; Wood on Mandamus, p. 74; Moses on Mandamus, pp. 149-150; Tapping on Mandamus, pp. 12, 38, 190-1; Shortt on Informations, pp. 283, 292; Throop on Public Officers, secs. 825-829; Mechem on Public Offices, sec. 980; 2 Dillon on Municipal Corporations, sec. 847; Miles v. Stevenson, 80 Md. 358; Metsker v. Neally, 41 Kan. 122; Eastman v. Householder, 54 Kan. 63; Ex parte Lusk, 82 Ala. 519; Milliken v. City Council, 54 Tex. 388; Lewis v. Whittle, 77 Va. 415; Hill v. Fitzgerald (Mass.), 79 N.E. 825; State ex rel. v. Shakespeare, 45 La. Ann. 92; State ex rel. v. Common Council, 9 Wis. 254. (a) And when one has been wrongfully deprived of his office by the illegal appointment of another, the writ will go to compel his restoration, even though the person appointed in his stead be in possession de facto. People ex rel. v. Ahearn, 98 N.Y.S. 492; Pratt v. Board of Police and Comrs., 15 Utah 1; Smith v. Lawrence, 2 S.D. 206; Metsker v. Neally, 41 Kan. 122; Dew v. Judges, 3 Hen. & Mum. 1; High on Extraordinary Legal Remedies, 67; 2 Spelling on Extraordinary Remedies, sec. 1576; State ex rel. v. Board, 134 Mo. 296; Jones v. Wilcox, 80 N.Y.S. 420. (b) There is here no defect of parties. It is not necessary to make all of the members of the committee respondents. "It is not the practice to make any person a defendant to a petition for mandamus but the officer whose conduct is complained of." Fry, Collector, v. Reynolds, 33 Ark. 450; Smith v. Lawrence, 2 S.D. 207; Heintz v. Moulton, 7 S.D. 272; Lamb v. Lynd, 44 Pa. St. 336; Atty.-Gen. v. Newell, 85 Mo. 246; Goodell v. Woodbury, 71 N.H. 378; In Matter of White River Bank, 23 Vt. 478. (c) Where the circumstances are such that the respondents have distinctly manifested their purpose not to perform their duty resting upon them, no demand is necessary. Humboldt County v. Commissioners, 6 Nev. 30; Railroad v. Commissioners, 49 Kan. 399; Heintz v. Moulton, 7 S.D. 272. (d) It must appear, however, that the respondents are actually in default in the performance of some act which the law specially enjoins as a duty resulting from their position. Cincinnati College v. La Rue, 22 Oh. St. 469; Comrs. of Highways v. Jackson, 165 Ill. 22. (e) The allegation of the alternative writ is that the primary election was held under and pursuant to the Act of March 13, 1901. Where the purpose of the writ is merely to restore the status quo, it is not necessary to allege the details or the receipt of a certificate of election. State ex rel. v. McCaffery, 108 Mo.App. 59, arose upon entirely different facts, and is not in point in this case.

Sam B. Jeffries and John M. Wood for respondents.

(1) The Primary Election Law of 1901 did not change in any respect the status of the committee, or of its members. The members of these committees have been elected biennially since the earliest recollection. The statute did not, therefore, change the existing law in this respect. It will be seen by reference to section 15 that the candidates for committeemen as well as for public office are required to pay pro rata the expense of the primary election. We submit that if by long-settled custom the committee had acquired the right to judge of the election and qualifications of their members, nothing less than a positive statute could deprive them of that right. Again, it being presumed, in law, that at the time of enacting our statute the Legislature was advised of the interpretation of the New York statute and of the significance given to the word "conduct" as used in the first section of the latter statute, can the omission of this word by our Legislature in adopting said section be construed otherwise than as a deliberate intention on its part to prevent this section from receiving the construction placed upon the section from which it was taken by the New York court, or, in other words, to allow the committee to retain its long-established right of self-government? What is said by the Court of Appeals in State ex rel. v. Witthoeft, 117 Mo.App. 625, regarding the meaning of the act in question, is merest dicta. (2) In both his oral argument and brief counsel for relator has declined to define his position on the question as to whether members of the committee were public officers. In his brief he says: "Whether he [the committeeman] is an officer or not, I take it, can make no difference in the result of this case. He is elected by the people, under the law, for a two years' term, with certain duties placed upon him by law, which duties are of a public nature." We cannot accept either of these conclusions. The committeeman is not elected by "the people" (i. e., the general public, which is the sense in which these words are used by relator's counsel), but by only a portion (and it may be a very small portion) of the people. Nor are the duties placed upon the committeeman "of a public nature." They are of a party nature only. They pertain only to the interests of a particular political party or faction, and have naught to do with the public. Again, if the committeeman is not a public officer, it was a vain thing for relator's counsel to consume time in collecting the authorities cited and quoted in support of procedure by mandamus. For, upon examination, it will be seen that these authorities apply only to controversies over public office. The question as to whether or not a committeeman is a public officer is very important in the consideration of this case. Is a committeeman a public officer? He is not. State ex rel. v. Valle, 41 Mo. 29; State ex rel. v. Bus, 135 Mo. 325; State ex rel. v. Harter, 188 Mo. 528; State ex inf. v. Washburn, 167 Mo. 692; State ex rel. v. Gray, 91 Mo.App. 445; Bun v. People, 45 Ill. 397; State ex rel. v. May, 106 Mo. 488. The act in question not only does not declare the committeeman an officer, but repeatedly distinguishes between them. Section 15 et al. The authorities, therefore, which relator has cited in support of his procedure and which apply to contests over public offices, are irrelevant to this discussion. If they were relevant, we think the Missouri authorities clearly show that under the settled law of this State relator has not adopted the proper procedure. But the relator further contends that section 23 of the Act of 1901 authorizes the procedure he has adopted. The answer to this contention is given by this court in State ex rel. v. Reynolds, 190 Mo. 578.

FOX, J. Gantt, C. J., Burgess and Woodson, JJ., concur; Valliant, J., dissents and expresses his views in a separate opinion in which Graves, J., concurs; Lamm, J., not sitting.

OPINION

In Banc.

Mandamus.

FOX, J.

-- This is an original proceeding begun in this court, by which it is sought to obtain a peremptory writ of mandamus directing the respondents to reinstate the relator in his rights and privileges as a member of the Democratic City Central Committee of the city of St. Louis.

The relator in this cause on December 23, 1907, filed in this court an amended information, which substantially charges that the relator was on the 6th day of October, 1906, duly elected a member of the Democratic City Central Committee from the sixth ward of the city of St. Louis by direct vote at a primary election of the Democratic voters of said ward in said city. It is further averred that the primary election on the date heretofore mentioned was held and the committeemen chosen at such election were chosen in pursuance of an Act of the General Assembly of Missouri, approved March 13, 1901, relating to primary elections in cities having three hundred thousand inhabitants, and that the committeemen elected at said primary election were to represent the members of the political party known as the Democratic party, a political organization,...