State ex rel. Thomas v. Williams

• Decision Date: 21 December 1889
• Citation: 12 S.W. 905,99 Mo. 291
• Parties: The State ex rel. Thomas v. Williams, Recorder of Voters
• Court: Missouri Supreme Court

12 S.W. 905

99 Mo. 291

The State ex rel. Thomas v. Williams, Recorder of Voters

Supreme Court of Missouri

December 21, 1889

Peremptory writ denied.

Rassieur & Schnurmacher, with Thos. C. Fletcher, for relator.

(1) Relator was duly elected marshal, and it is the mere ministerial duty of the recorder of voters to issue to him a certificate of election; failing to perform such duty, as an officer, mandamus is the only remedy of relator. State ex rel. v. Steers, 44 Mo. 224; State ex rel. v Berg, 76 Mo. 147; State ex rel. v. Harrison, 38 Mo. 544; State ex rel. v. Albin, 44 Mo. 346. (2) The qualifications of relator to take and hold the office cannot be inquired into in this proceeding. Authorities, supra. (3) Relator possesses all the qualifications required by the provisions of section 10, article 4 of the charter of the city of St. Louis.

Jos. S Laurie for respondent, Williams.

Respondent Williams does not feel called upon in this proceeding to defend the jurisdiction of the circuit court, nor does he confess the demurrer, but submits the questions therein involved to the determination of this court.

W. C Marshall for respondent, Neiser.

(1) The relator is not entitled to a peremptory writ of mandamus. State ex rel. v. Newman, 91 Mo. 445. (2) Relator was in arrears of taxes. (3) Relator was indebted to the city of St. Louis. (4) Relator had not been a resident of the city of St. Louis for two years next preceding the election on the second of April, 1889.

Sherwood, J. Ray, C. J., and Black, J., concur in the result. Barclay, J., in a separate opinion.

OPINION

Mandamus.

Sherwood J.

-- This is an original proceeding by mandamus to compel the recorder of voters to issue a certificate of election to Emil Thomas, the relator, who claims to have been elected marshal of the city of St. Louis, by reason of being qualified for that office, and by reason of having received the highest number of votes therefor, at an election held on the second day of April, 1889.

The first return of the respondent, while it "admits that said relator, at such election, received a majority of the votes cast at said election for said office," yet further states that "whether relator possessed the qualifications for said office prescribed by the charter as alleged, respondent can only say that he knows nothing to the contrary, and did not consider that the duties of his office, as recorder of voters, required, or authorized, him to pass upon or determine the eligibility of candidates." It was further alleged in the return that, at the close of the election, respondent cast up the votes cast, ascertained that relator received the highest number of votes, etc., and was about to give him a certificate of election, when he was restrained from so doing, by an injunction issued out of the circuit court on the sixth day of April, 1889, directed against him and relator, and based upon the petition of Martin Neiser, the present incumbent, which alleged that the relator did not possess the qualifications for said office required by the charter; that, upon demurrers filed questioning the jurisdiction of the circuit court to entertain the petition, the injunction was dissolved, the petition dismissed, and on the same day, April 29, 1889, Neiser was granted an appeal to this court, giving supersedeas bond, etc.

Upon this return being made, Martin Neiser filed a motion asking to be made a party, alleging that he, himself, had been elected marshal at the election aforesaid, and that, if granted time so to do, he could establish the fact of his election and relator's ineligibility; and, further, Neiser suggested in effect that the return of respondent was evasive or collusive, and did not put the relator upon the proof of his averment that he possessed the necessary qualifications. This motion being passed upon, resulted in an order being made by a majority of this court, granting the motion of Martin Neiser "to be made party defendant, and for leave to be heard in the cause * * * unless the respondent, within five days from this date, make that portion of his return, touching the qualifications of relator for the office in question, definite, positive, direct and certain."

Thereupon, the respondent filed an amended return, in substance like the first, with the exception that it distinctly puts in issue the qualifications of relator for the office of marshal, by setting forth qualifications required by the city charter, and giving in detail reasons why relator did not possess such qualifications.

Neiser also filed an answer on the same day, June 24, 1889, as party defendant, claiming that he was elected to the position of marshal in 1885, for four years, and that, under the city charter, he was entitled to hold his office until his successor was elected and qualified, and further alleged that relator did not possess the qualifications of the office required by the city charter, giving details similar to those given in the return of the respondent.

To this amended return, and this answer on the day of their filing, replications in denial of their chief averments were filed.

On the twenty-eighth of June, 1889, an order was entered by this court authorizing the taking of depositions in support of the issues joined, and granting leave to Neiser to appear and cross-examine relator's witnesses, as well as to produce and examine witnesses on behalf of respondent. In response to this order, depositions have been taken by relator and by Neiser, and are now before us.

This is the shape this cause is now in, and we shall proceed to discuss it in the shape we find it; and, inasmuch as the amended return of respondent controverts the qualifications of the relator, it becomes unnecessary to comment on the propriety of making Neiser a party to this proceeding. It is not impertinent, however, to state that in the case of Strong, Petitioner, 20 Pick. 484, relied on by relator, where Strong applied for a mandamus to compel the issuance to him of a certificate of election, notice was ordered to be served on the incumbent, whose rights, Chief Justice Shaw suggested, might be affected in case the writ went, and notice was given accordingly. If the original return of respondent had put in issue the qualifications of relator for the office of marshal, by direct denial or by "something equally as good," i. e., that which would be the legal equivalent of such denial, this would have sufficed. High's Ex. Leg. Rem., sec. 460. And nothing short of this would suffice. State ex rel. v. Williams, 96 Mo. 13, 8 S.W. 771.

As the return admitted that relator had received a majority of the votes cast, and as the residue of that return was a virtual admission of the qualifications of relator for the office, there was nothing left remaining for the relator to do, but to move for a peremptory writ on the pleadings. This course we could not allow to be pursued, especially in view of the suggestions made under oath by Neiser, the incumbent, that relator was ineligible to the office in question. Had we done so, it would have been to permit an abuse of the process of this court. These considerations induced a majority of this court to make the order it did in relation to the return of the respondent.

Having thus shown how this case stands, and the issues raised by the pleadings, to-wit, the petition which is treated as the alternative writ, and the return of respondent and the reply to same, we shall address ourselves to the questions presented by the testimony as applied to the issues made on the pleadings. As the reporter will accompany this opinion by a statement of the substance of the testimony adduced, it is deemed unnecessary to do but little more than to give an outline, or brief statement, of the salient facts in evidence, our conclusions of fact thereon, with brief reasons therefor, and then, upon this fact basis, present our reasons for the conclusions which we think the law draws from those premises of fact.

Section 10, article 4, of the charter of the city of St. Louis, provides that: "All elected and appointed officers shall possess the following qualifications: They shall have been citizens of the United States and of the city of St. Louis for at least two years previous to their election or appointment, and shall be able to read and write the English language. They shall not, at the time of their election, be in arrear to the city for taxes, or indebted to the city in any way," etc.

With these charter provisions before us, our conclusions from the testimony are these:

I. That the relator was not, on the second day of April, 1889, the day on which the election occurred, eligible to the office of marshal, not having been a citizen of St. Louis for at least two years previous to such election. His hurried departure from St. Louis to Salt Lake in October, 1885, overwhelmed with debt, to be gone, as he says, but twenty days; his practical abandonment of his family to care for themselves and to beg assistance from others; his entire abandonment of his saloon business, without making any provisions for its continuance or even so much as making inquiry about it, or asking or receiving any report from his supposed barkeeper, Rumsey, as to what had become of that business; his ability to return to St. Louis at any time, as he says; his prolonged and seemingly aimless absence for twenty-three months ending in September, 1887, having no business there except an attachment suit still pending against "Enterprise mine, for money owed to him years and years ago," all stamp relator's story as one scarcely consistent with continuous citizenship in the city of St. Louis; and this effect is by no means lessened, when, in connection with his own statements as a witness, ...