State ex rel. Harris v. McCann

• Decision Date: 31 October 1885
• Citation: 88 Mo. 386
• Parties: THE STATE ex rel. HARRIS v. MCCANN, Appellant.
• Court: Missouri Supreme Court

88 Mo. 386

THE STATE ex rel. HARRIS

v.MCCANN, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

John J. McCann for appellant.

(1) Substantially the whole return is confessed and avoided. It pleads simply lis pendens. Long v. Long, 79 Mo. 644. (2) The return sufficiently shows that McCann qualified as a justice of the peace. R. S. secs. 2815-16. (3) The removal by such officer of his office or place of holding court out of the district for which he was elected or appointed is ipso facto a vacation of it. R. S. secs. 2806, 2833-4. (4) The power to fill a vacancy implies the right of the officer to whom it is given to determine when a vacancy exists. State ex rel. v. Seary, 64 Mo. 98. (5) There is no authority for the proceeding here invoked. State ex rel. v. Boal, 46 Mo. 529; State, etc., v. Lawrence, 38 Mo. 535; State, etc., v. Stewart, 32 Mo. 379.

E. A. B. Garesche for respondent.

The title to the office under and by virtue of the election and qualification in November, 1880, being void and it not being alleged in the respondent's return nor proved at the trial that respondent qualified under the commission issued to him in June, 1881, judgment of ouster should have been rendered against him. State ex rel. v. Vail, 53 Mo. 107; High on Extra. Rem., secs. 629, 716; Larke v. Crawford, 28 Mich. 88; State v. Gleeson, 12 Fla. 190; State v. Ashley et al., 1 Ark. (Pike) 513; Clark v. The People, 15 Ill. 217; Flynn v. Abbott, 16 Cal. 364. There is no sufficient allegation in respondent's return, nor do the facts appear in evidence of an abandonment, or of the fact that there was such a vacancy as authorized the mayor to appoint respondent to the office of justice of the peace for the fifth district of the city of St. Louis. Const. of Mo., Art. 11, sec. 30; Honey v. Graham, 39 Texas, 9; Page v. Harden, 8 B. Monroe, 669; State ex rel., etc., v. Ralls Co., 45 Mo. 58; Kouns v. Draper, 43 Mo. 227.

RAY, J.

This is an information in the nature of a quo warranto, at the relation of Harris, circuit attorney for the eighth judicial circuit, city of St. Louis, against the respondent, Patrick McCann, requiring him to show by what warrant or authority he claims to have and exercise the powers and duties of a justice of the peace, within and for the fifth district in the city of St. Louis, Missouri. The information charges, in substance, that one Vincent Mullery, in November, 1878, was duly elected and qualified as a justice of the peace, in said district, in said city, for the term of four years; that he resigned said office in October, 1879, and, thereupon Michael Mullery was duly appointed as his successor, in said office, by the mayor of said city of St. Louis, and qualified thereunder and entered upon the duties of said office. That, afterwards, to-wit, on the fourth of June, 1881, said respondent, McCann, unlawfully usurped and entered into said office of justice of the peace for said district, in said city, and has from that time, until the filing of this information, used and exercised and still uses and exercises the powers and duties of the same without any warrant or legal authority whatever.

The respondent, for return to the writ issued to show cause, admits Vincent Mullery's election and resignation and appointment of Michael Mullery by the mayor, but alleges, in substance, first: That, at the November election in 1880, he was duly elected justice of the peace, in and for said district, in said city; that he was duly commissioned and qualified as such and that, thereupon, said Michael Mullery turned over to him the books, papers, etc., of said office, and thereupon ceased to have any office, or place of holding court within said district, and removed his office from said district, and entirely abandoned said office of justice of the peace for said district; that, thereafter, this respondent continued to discharge the duties of said office, by virtue of said election, commission and qualification, until the fourth of June, 1881, when there being a question about the validity of his title to said office, and whether there was a vacancy in said office, the mayor of the city of St. Louis, in order to remove all question as to the validity of respondent's title to said office, did appoint him as justice of the peace for said district, until the general election in 1882, and did issue to respondent a commission authorizing him to hold said office, during said term. Respondent says that he holds said office of justice of the peace, for said district, by virtue of his said election, in November, 1880, and his commission and qualification thereunder, as well as by his said appointment and commission by the mayor of said city, in June, 1881, as aforesaid.

To this return, the relator filed, first, a general denial, and as to that part of said return, which predicates his right and title to said office, upon said election, commission and qualification in November, 1880, the relator replies that at the time of the commencement of this action, and the making of said return, there was, and is another action pending in the Supreme Court, between the same parties, and for the same cause as that set forth in this information and return thereto. The cause was tried by the court without a jury, and there was a finding and judgment for the respondent, from which the relator appealed to the St. Louis court of appeals, where the...