State ex rel. Jackson v. Cnty. Court of Howard Cnty.

• Decision Date: 31 August 1867
• Parties: STATE ex rel. PRIOR M. JACKSON, Plaintiff, v. THE COUNTY COURT OF HOWARD COUNTY, Defendants.
• Court: Missouri Supreme Court

41 Mo. 247

STATE ex rel. PRIOR M. JACKSON, Plaintiff,

v.THE COUNTY COURT OF HOWARD COUNTY, Defendants.

Supreme Court of Missouri.

August Term, 1867.

Application for Mandamus.

Attorney-General, and A. F. Denny, for plaintiff.

I. This court is the general guardian of the public rights, and in exercise of its authority to grant the writ, will render it, so far as it can, the suppletory means of substantial justice in every case when there is no specific legal remedy for the legal right.

The right of the court to apply this means for the attainment of such end, and prevent that defeat of legal justice which might otherwise ensue, has been generally admitted--Tapp. on Mand. 95 et seq., and authorities cited; Cin. W. & L. R. R. Co. v. Comm'rs Clinton Co., 1 Ohio, 77.

In this case there is no specific remedy for the wrong complained of other than the writ of mandamus; an appeal from the orders of the County Court in the premises would not lie.--Hixon case, 41Mo. 210; State ex rel. Adamson v. Lafayette Co. Ct., 41 Mo. 221. No suit for damages against the individuals who compose the County Court, if such suit could be maintained, would suffice to enforce the petitioner's legal right to the office.

II. This court has the power to supervise and correct the proceedings of the County Court, notwithstanding the discretionary power confided therein, as regards the approval of the collector's bonds, provided that the power is shown to have been abused. The “discretion” spoken of must be a sound, legal discretion, and must not be used in an arbitrary, corrupt, or oppressive manner; if otherwise, this court will interfere.--Tapp on Mand. 12-14, and notes; Rex v. Justices of Wiltshire, 10 East, 404, a.; State ex rel. Essen v. Lewis, 10 Ohio, 128; Gulick v. New, 14 Ind. 93; Manor et al. v. McCall, 5 Geo. 522; People v. Superior Ct. N. Y., 5 Wend. 114; Ricketts case, 1 Spencer (N. J.) 134; Platte Co. Ct. v. McFarland, 12 Mo. 166.

III. The petitioner Jackson having been appointed sheriff under the vacating ordinance, was entitled to hold the same until his successor was duly elected, commissioned and qualified--Const. art. 5, § 22; G. S. § 1, p. 138; State v. Lusk, 18 Mo. 333; State ex rel. Robinson v. Auditor, 38 Mo. 193.

IV. The petitioner bore the commission of the Governor, which was an investiture of the office of sheriff in him, and the only question before the court was the sufficiency of the bonds presented by him. The court had no legal right to determine the eligibility of Jackson to office, nor any other collateral question, no such power being conferred upon it by the law--St. Louis Co. v. Sparks, 10 Mo. 121; State ex rel. Jackson v. Auditor, 34 Mo. 383; Winston v. Auditor, 35 Mo. 146; State ex rel. Jackson v. Auditor, 36 Mo. 70; Douglass v. Wickwire, 19 Conn. 491; State ex rel. Bartley v. Governor, 39 Mo. 388; State ex rel. Epler v. Lewis, 10 Ohio, 129.

V. The County Court, being a court of inferior jurisdiction, must not only act within the scope of its jurisdiction, but it must appear on the face of its proceedings that it so acted, or its proceedings are coram non judice and void--Hunt v. Hapgood, 4 Mass. 122; Alber v. Ward, 8 Mass. 86; Den v. Turner, 9 Wheat. 541; Smith v. Rice, 11 Mass. 513; Williams v. Blunt, 2 Mass. 213; Powers v. People, 4 Johns. 292; Griffith v. Frazier. 8 Cr. 9; Den v. Harnden, Paine, 55; Dennis et al. v. Jeffries. 12 Ohio, 271; Stanley v. Bank N. America, 4 Dall. 11; Hall v. Howd, 10 Conn. 520.

HOLMES, Judge, delivered the opinion of the court.

The petitioner states that he was duly elected sheriff of the county of Howard at an election held on the 6th day of November, 1866, but that the certificate of election was refused him by the County Court, and was granted to one John L. Morrison, who was ineligible to the office; that said Morrison entered upon the duties of the office without having received a commission from the Governor, and was ousted therefrom by the judgment of the Supreme Court at the July term, 1867, of the court; that on the 3d day of July thereafterwards the petitioner was duly commissioned as sheriff of said county, and that within fifteen days after his commission was received from the Governor he delivered to the clerk of the Circuit Court of said county good and sufficient bonds as sheriff and collector, and shortly afterwards presented his bond to the County Court for approval, and that the court refused to proceed to hear evidence as to the sufficiency of the bond and securities, and refused to regard him as the lawfully appointed sheriff, or to take any action upon his application.

It appears that the County Court declared the office of sheriff vacant, and ordered a new election, and appointed another person sheriff to fill the vacancy. The order of the court specifies the grounds and reasons of their action in the matter.

An alternative writ of mandamus was granted as prayed, commanding the County Court to approve the official bond of said Jackson as by him tendered as collector of Howard county, and to anul certain orders declaring the office of sheriff vacant, appointing another person to fill the vacancy, and ordering a new election.

The petitioner offered to produce evidence in this court as to the sufficiency of the bonds, which the court declined to hear, not deeming the question of the sufficiency of the bonds was a matter properly to be determined on this application.

The case is submitted upon the writ and return, and upon the evidence offered in support of the same. The questions of law to be decided arise upon the facts stated in the petition and admitted by the return. These questions, so far as necessary for the determination of the case as here presented, are essentially these: Whether the petitioner, by virtue of his election and commission from the Governor, was lawfully entitled to claim the office of sheriff, and to demand of the County Court that they should proceed to hear his application for an approval of the bonds, and should approve them if found sufficient; whether the County Court had any lawful power to declare the office vacant, to appoint another person sheriff to fill the supposed vacancy, and to order a new election for the office of sheriff; and whether this court can make the rule absolute for a peremptory mandamus in accordance with the alternative writ.

On the first question, our opinion is that the commission from the Governor was conclusive evidence for the County Court, on this application for an approval of the bonds, that the applicant was the lawfully...