State ex rel. Monahan v. Walton

• Decision Date: 30 April 1879
• Parties: THE STATE ex rel. MONAHAN v. WALTON, Appellant.
• Court: Missouri Supreme Court

69 Mo. 556

THE STATE ex rel. MONAHAN

v.WALTON, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

A. R. Kellam, C. C. Simmons and J. J. McCann for appellants.

W. B. Thompson for respondent.

NORTON, J.

This is an action in the nature of quo warranto, upon the information of the circuit attorney of the eighth judicial circuit of Missouri, at the relation of Patrick Monahan against John F. Walton. The petition alleges that said Walton has intruded into and usurped the office of justice of the peace in the sixth district of the city of St. Louis. It also alleges that the relator was duly elected at the general state election held on the 5th day of November, A. D. 1878, by a majority of the legal voters of said district, to the said office, and sets forth his eligibility under the laws of the state; that subsequent to the election a certificate of his election was duly executed and a commission delivered to him according to law, executed by the legal authority, and that he has taken and subscribed the oath of office in the manner provided by law. An alternative writ was issued by the circuit court of St. Louis, commanding the respondent to show by what authority he exercised and held the office in question. And thereupon the respondent filed his return, which contains nothing material to be considered except the averment that he was elected to the office of justice of the peace of the eighth representative district in the township of St. Louis, in the county of St. Louis, in November, 1874, for a term of four years and until his successor should be duly elected and qualified, and that no legal election of his successor has been held according to law. To the return made relator filed a demurrer which was sustained, and judgment of ouster being rendered, the respondent declined to plead further. On appeal to the court of appeals the judgment was affirmed pro forma from which respondent has appealed to this court.

The principal question involved in the determination of the case is whether the act of April, 1877, (Acts 1877, p 283,) is constitutional. This act divides the city of St. Louis into fourteen election districts and provides that at every general election thereafter held justices of the peace shall be elected in each of them. It seems to be conceded that if this act is constitutional the judgment of the circuit court should be affirmed. It is, however, contended by counsel for respondent with much plausibility that the act in question is a local and special law, and, therefore, obnoxious to sections 53 and 54, article 4 of the constitution, which provides among other things that “no local or special law shall be enacted” where a general law can be made applicable, and that “no local or special law shall be passed unless notice of the intention to apply for the same shall have been published in the locality where the matter or thing to be affected may be situated * * at least thirty days prior to the introduction of such bill.” These sections to which the act of 1877 is supposed to be obnoxious must be considered and receive judicial construction in connection with other provisions of the constitution. Section 37, article 6, declares that “in each county there shall be appointed or elected as many justices of the peace as the public good may require, whose powers, duties and duration in office shall be prescribed by law.” Now if in the execution of the power thus conferred and duty thus enjoined on the general assembly they had passed a general law providing that in each township in each county in ...