State ex rel. Tracy v. Taaffe

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 567
• Parties: THE STATE EX REL. DANIEL O'C. TRACY, REGISTER, RESPONDENT, v. PATRICK J. TAAFFE, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 567

THE STATE EX REL. DANIEL O'C. TRACY, REGISTER, RESPONDENT, v. PATRICK J. TAAFFE, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL fro the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and writ dismissed.

DYER LEE & ELLIS, for the appellant.

LEVERETT BELL and FRANK K. RYAN, for the respondent.

OPINION

ROMBAUER J.

This is an appeal from a judgment awarding a writ of peremptory mandamus against the defendant, commanding him to deliver all the books, papers, etc., appertaining to the office of justice of the peace of the fifth district of the city of St Louis, in his possession, to the relator, who is register of the city of St. Louis.

The judgment was made upon petition, writ, and return, and can not stand unless supported by the allegations of the writ and admissions of the return.

The writ states, that the relator is register of the city of St. Louis, and that the defendant is one of three justices of the peace elected in the fifth district of the city of St. Louis, at the general election of 1882, for a term of four years, and until his successor was duly elected, commissioned, and qualified. It further states that, at the general election in November, 1886, one Patrick Kane was duly elected the successor of the defendant, and, as such, received a certificate of election, and that it is provided by the general statutes of the state, that, whenever a justice of the peace shall resign, move out of the township, or be otherwise disqualified, if the same happen in the city of St. Louis, he shall immediately thereafter deliver to the city register, all dockets, records, books, papers, and documents pertaining to his office. It further states that the relator demanded such books, etc., from the defendant, and that the latter refuses to surrender them, wherefore, he is commanded to show cause, etc.

The return, in showing cause, denied that the relator is entitled to the custody of the books, denies that the said Kane was elected as a successor of the defendant, and admits that a certificate of election was issued to the said Kane. The return for further cause shows that the defendant, himself, was lawfully and duly elected as his own successor, as justice of the peace in the said fifth district, at the general election in November, 1886, and claims that, as such, he is entitled to the custody of such books and papers.

The relator moved for judgment upon the return which motion the court sustained, and awarded a peremptory writ as above stated.

Two questions arise: (1) Is the relator entitled to the custody of the books upon the recitals contained in the writ, and a proper construction of the statute under which he claims? (2) If so, does the return show, affirmatively, cause for denying it?

I. The statute reads, " whenever a justice of the peace shall resign, move out of the township, or be otherwise disqualified, he shall immediately thereafter, * * * if in the city of St. Louis, deliver to the city register all dockets, records, books,...