State ex rel. Simmons v. John

• Decision Date: 31 October 1883
• Parties: THE STATE ex rel. SIMMONS v. JOHN, Appellant.
• Court: Missouri Supreme Court

81 Mo. 13

THE STATE ex rel. SIMMONS

v.JOHN, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Walker & Field and Alexander Graves for appellant.

Contested elections cannot be determined in a proceeding on a writ of mandamus. 12 Am. Dec. 28; State ex rel. Jackson v. Auditor, 34 Mo. 375; 36 Mo. 70; Winston v. Mosley, 35 Mo. 46; State ex rel. Jackson v. Howard Co. Ct., 41 Mo. 247; State ex rel. Vail v. Draper, 48 Mo. 213. The city council having counted the votes and declared Turner elected, and having directed the mayor to commission him, which was done, could not annul its work. The council had performed its office, and its duties in that behalf were at an end. The commission that they had given to Turner could only be revoked in a proper proceeding for that purpose. Hadley v. Mayor, etc., 33 N. Y. 603; State ex rel. Bell v. Harrison, 38 Mo. 540; State v. Warren, 1 Houston 43; Cooley on Const. Lim., (2 Ed.) side p. 623. It is claimed that Thomas B. Claggett was the register de facto. But the evidence shows that Turner was de jure and de facto register. There cannot be at the same time an officer de jure and one de facto in possession of the same office. Boardman v. Halliday, 10 Paige 232; Conover v. Delvin, 15 How. Pr. 479; Hildreth v. McIntire, 19 Am. Dec. 61, and notes. The action of the city council in assuming juris diction of the election contest instituted by Claggett was entirely unauthorized by law. Art. 8, § 9, Const. of Mo., Scedule, § 1. The authority of the city council to determine election contests ceased on the 1st day of July, 1877. That body assumed to determine this contest in 1880, more than a year after its authority had been repealed. It will be conceded that the defendant, B. T. John, is no longer in office, and, therefore, could not obey the writ. On retirement from office the writ abates. U. S. v. Boutwell, 17 Wall. 604; Secretary v. McGarrahan, 9 Wall. 298.

J. D. Shewalter for respondent.

The court had no power on mandamus to determine the power of the council to try contested elections, or who was legally elected to the office--it could only inquire as to who actually held said office. St. Louis Co. v. Sparks, 10 Mo. 118; Winston v. Auditor, 35 Mo. 146; State v. Auditor, 34 Mo. 375; State v. Auditor, 36 Mo. 70. Hence the instruction for respondent, which placed the right to the peremptory writ on Claggett, having been commenced, in fact, after Turner (whether rightfully or wrongfully, was not the question), and being placed in possession of the office (if the court so believed from the evidence) was proper. For the same reason the instructions asked by defendant were properly refused. It is sufficient for the auditor that another person has been commissioned as judge of the same circuit. State v. Auditor, 34 Mo. 383. Claggett had qualified, was in possession of the office, and the mayor could not raise, as he attempts by his return, the question whether the council could try the contested election case, order a new election or commission and place Claggett in office.

HOUGH, C. J.

This is a proceeding by mandamus to compel the respondent, who is mayor of the city of Lexington, to sign a warrant in favor of the relator, Simmons, drawn by Thomas B. Claggett, who is alleged to be register and treasurer of said city of Lexington. The respondent refused to sign said warrant, and alleged as a reason therefor, that said Claggett is not register and treasurer of said city, but that Henry Turner is; that said Turner received a certificate of his election from the city council, was duly commissioned by the mayor, qualified and gave bond as such in June, 1880. The relator admits that said Turner was commissioned and qualified as alleged, but avers that thereafter, and within the time provided by law, said Claggett instituted proceedings before the city council to contest the election of said Turner, and that said counsel declared the vote for said parties, who were the only candidates, to be a tie, and ordered a new election, at which said Claggett was duly elected, and having received a certificate thereof, was duly commissioned and qualified as register and treasurer as aforesaid. The respondent denies the jurisdiction of the city council to determine a contest for the office of register and treasurer, and its authority to order the special election at which Claggett claims to have been elected.

We have stated the issues, not in the order in which they are stated in the pleadings, but in the order in which they should have been stated. It appears from the record that Turner and Claggett each claimed at the time these proceedings were instituted, to be the rightful incumbent of the office in question, and...