State ex rel. Richardson v. Baldry

• Citation: 56 S.W.2d 67,331 Mo. 1006
• Parties: State ex rel. Robert Richardson v. H. G. C. Baldry, Presiding Judge, B. C. Canady and Martin Skaggs, Associate Judges, and Austin Snead, Clerk of the County Court of Newton County, Appellants
• Decision Date: 31 December 1932
• Court: United States State Supreme Court of Missouri

56 S.W.2d 67

331 Mo. 1006

State ex rel. Robert Richardson v. H. G. C. Baldry, Presiding Judge, B. C. Canady and Martin Skaggs, Associate Judges, and Austin Snead, Clerk of the County Court of Newton County, Appellants

Supreme Court of Missouri

December 31, 1932

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge;

Reversed and remanded (with directions).

Hubbert & Rice for appellants.

(1) This case involves the title to an office under the State and the Supreme Court has jurisdiction. Sec. 12, Art. 6 Const. of Mo.; Sec. 5, Art. 6, Amend. to Const. 1884; State ex rel. Macklin v. Rombauer, 104 Mo. 619; State ex rel. Worsham v. Ellis, 11 S.W.2d 1095; State ex rel. Gentry v. Sullivan, 8 S.W.2d 616; Macrae v. Coles, 183 S.W. 578; Ramsey v. Huck, 267 Mo. 333; State ex inf. Holt ex rel. Jones v. Myer, 12 S.W.2d 489. In this case last cited of State ex rel. Jones v. Myer, the title to the office of commissioner of Mt. Vernon Special Road District of Lawrence County, was involved, as in this case. (2) The writ of mandamus is a common law legal writ and not an equitable remedy. Under a writ of mandamus the court cannot adjudicate a right, but only execute a clear right. Therefore, the court cannot by virtue of the writ of mandamus investigate or adjudicate the returns of a primary election. State ex rel. Frank v. Becker, 9 S.W.2d 153, 38 C. J. 543; State ex rel. v. Bank, 174 Mo.App. 593. (a) Where another officer has been elected or appointed or is filling the office as a de facto officer, mandamus will not lie by another claiming the title. The remedy in such case is by quo warranto. In other words, if there is any possession of the office, a de facto officer claiming title to the office under color of title (where a certificate has been issued to him as in the instant case) the mandamus is not the proper remedy. We have but two ways of trying title to office in Missouri, i. e., (1) election contest as described by statutes, (2) quo warranto. State ex rel. Galliger v. Kansas City, 7 S.W.2d 364. Section 10339, R. S. 1929, providing for the contests of elections is broad enough to cover contests for office of road commissioner. It being held that a party committeeman is an office within the meaning of this statute. State ex rel. v. Woodbury, 10 S.W.2d 524. (b) It has been repeatedly held in Missouri that mandamus will not lie to try title to a public office, but that quo warranto is the proper remedy. State ex rel. v. May, 106 Mo. 508; Frank v. Becker, 9 S.W.2d 153; State ex rel. Holt v. Meyer, 12 S.W.2d 489. It has been held by the Supreme Court that the court cannot by mandamus control a register or board of registration in registering the voters although it appears from the return that the voters were qualified and entitled to vote and to be registered. State ex rel. v. Woodbury, 10 S.W.2d 524; State ex rel. v. Jones, 155 Mo. 570; State ex rel. Blue v. Waldo, 6 S.W.2d 652; Gladney v. Gibson, 208 Mo.App. 70. And where a board of commissioners has acted in placing the name of a candidate on a ticket, mandamus will not lie to compel them to rescind their action on the ground that there was no vacancy or no office to be filled at that time. State v. Graybell, 191 S.W. 691; State ex rel. Clark v. Smith, 104 Mo. 661; State ex rel. Bartraw v. Longfellow, 95 Mo.App. 660, 220 Mo.App. 708. (3) J. R. Underwood, having been declared elected as commissioner of Granby Special District, and having been duly qualified and commissioned and was performing the duties of his office, he was a necessary party to any action to determine the title of the office. State ex rel. Galliger v. Kansas City, 7 S.W.2d 369; State ex rel. Holt v. Myers, 12 S.W.2d 489.

Thomas M. Saxton for respondent.

Mandamus is properly brought in the name of the State on the relation of taxpayers residing in a school district, to compel the member of the school board to rescind certain appointments of judges and clerks made by such committee, for the election of a member of the board. State ex rel. v. Public Schools, 134 Mo. 296. While mandamus will not ordinarily lie to control the acts of an inferior tribunal in whom a discretion is vested as to the performance or nonperformance of its duties devolved upon it by law, yet, if the discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. State ex rel. v. Public Schools, 134 Mo. 313; State v. Moss, 294 S.W. 109. Held that plaintiff's remedy was mandamus to compel the board to canvass the election returns and certify the plaintiff's election to the clerk. State ex inf. v. Moss, 187 Mo.App. 151; State ex rel. Metcalf v. Garesche, 65 Mo. 489; State ex rel. Bradhead v. Berg, 76 Mo. 136. Whether the failure of the board to convene in extra session and canvass the returns was willful or negligent, the remedy is mandamus and not quo warranto. State ex inf. v. Moss, 187 Mo.App. 155. Mandamus will lie to compel the board of canvassers or other proper officials to discharge their ministerial duty in canvassing votes or returns. 38 C. J. 725; State ex inf. v. Moss, 187 Mo.App. 157; State v. Stuckey, 78 Mo.App. 545.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Mandamus brought by relator Robert Richardson in the Circuit Court of Newton County to compel the judges of the county court of said county to reconvene and to canvass and count the votes of the "mayor and board of trustees of the Town of Ritchey" cast or attempted to be cast at a certain meeting held for the purpose of appointing a commissioner for the Granby Special Road District and to instruct the county clerk to issue a certificate to relator showing him appointed as such commissioner. Judgment was for the relator and the respondents below have appealed. The appeal was allowed to the Springfield Court of Appeals which court transferred the cause to this court because it deemed that the action involved title to the office of commissioner and that it was therefore without jurisdiction. We shall herein refer to the parties as relator and respondents respectively as they were designated below in the pleadings.

Granby Special Road District was organized prior to 1926 (the date of organization not being shown), pursuant to what is now Article 9 of Chapter 42, Revised Statutes 1929, sections 8024 et seq. As originally organized it included the city of Granby, a city of the fourth class having a mayor and a board of four aldermen, but did not include the village of Ritchey. About 1926 or 1927, its boundaries were extended as permitted by statute, which extension included the village of Ritchey. The district as extended is wholly within Newton County.

The statute, Section 8026, Revised Statutes 1929, provides that "the mayor and members of the city council of any city or town within any special road district thus organized, together with members of the county court . . . in which said district is located, at a meeting to be held in the county court room, at which meeting the presiding judge of the county court shall preside and the county clerk shall act as clerk," within two weeks after organization of the district shall, by order of record to be kept by the county clerk, "appoint" a board of three commissioners for the district, designating one to serve for three years, one for two years and one for one year, "and in February every year thereafter one commissioner shall be appointed as above specified, to serve for three years." Such commissioners, before entering upon the discharge of their duties, must take an oath of office to be administered by the county clerk.

This proceeding involves the appointment of a commissioner for said district in 1931. On February 2, 1931, the respondents, judges and clerk of the county court, and three members of the Board of Aldermen of the City of Granby met for the purpose of "electing" or appointing a road commissioner. As stipulated at the trial there were also present five named men "who represented themselves as being members of the board of trustees of the village of Ritchey." Their right to vote on the appointment of a commissioner was challenged at the meeting, though on what grounds does not clearly appear. In this court it is challenged on the grounds that the village of Ritchey was never legally incorporated, for which reason the five men had no official status as trustees; that if they had such official status they were not entitled to vote because said village was not in the district as originally organized; and perhaps, also, though this is not quite clear, on the ground that under Section 8026, supra, village trustees are not entitled to vote on the appointment of a special road district commissioner in any event. Without pausing here to determine these questions we shall for convenience refer to these five men as trustees of the village.

Relator and one J. R. Underwood were proposed as candidates for commissioner, both being qualified. Ballots were prepared and submitted by all present claiming the right to vote, viz., the three members of the county court, the three aldermen of the city of Granby and the five trustees of the village of Ritchey. No question was or is raised as to the right of the county judges and aldermen of the city of Granby to vote. Those six votes were concededly valid and were accepted and counted. It was stipulated at the trial:

" . . that said H. G. C. Baldry, chairman of said meeting, upon the question of who had a right to vote in said meeting ruled that the persons present representing themselves as being members of the Board of Trustees of the Village of Ritchey, Missouri, were not entitled to a vote for such Commissioner; that thereafter, upon a vote being taken J. R. Underwood received four votes, and...