State ex rel. Turner v. Fitzgerald

• Decision Date: 31 August 1869
• Citation: 44 Mo. 425
• Parties: STATE OF MISSOURI ex rel. HORATIO N. TURNER, Appellant, v. MICHAEL FITZGERALD, Respondent.
• Court: Missouri Supreme Court

44 Mo. 425

STATE OF MISSOURI ex rel. HORATIO N. TURNER, Appellant,

v.MICHAEL FITZGERALD, Respondent.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Bassett & Van Waters, and Bennett & Pike, for appellant.

I. The right given to the city council by charter to judge of the election, returns, and qualifications of its members does not exclude the jurisdiction of the common-law court therein, and certainly not where the jurisdiction by statute is expressly conferred on the Circuit Court to determine the right of any person to hold any office or franchise, who has usurped, intruded into, or unlawfully holds and executes such office or franchise. (Gen. Stat. 1865, ch. 157, § 1, p. 632; ex parte Heath et al., 3 Hill. 50.)

II. The right to judge of the qualifications, elections, and returns of its members, granted to the city council by charter, is a delegated limited judicial power and authority, and does not exclude the jurisdiction of courts over the same, which can only be done by express and positive enactments. ( Ex parte Heath et al., 3 Hill. 50.)

III. This is not an attempt by relator, Turner, to contest the election of Fitzgerald; but it is an action, under the first section of chapter 157, Gen. Stat. 1865, in relation to an information in the nature of quo warranto, to determine the question whether the said Fitzgerald has usurped the said office of councilman and unlawfully holds it. (The People v. Tibbetts, 4 Cow. 381; Commonwealth v. Fowler, 10 Mass. 291.)

Hall & Oliver, for respondent.

I. Under the charter of the city of St. Joseph, the city council is the sole judge of the election, returns, and qualifications of its members (1 Kent, 234), and no other authority is at liberty to interfere. (Cooley's Const. Lim. 133; People v. Mahoney, 13 Mich. 481; 17 Md. 309; Lamb et al. v. Lynd et al.,44 Penn. St. 336; Ewing v. Filley, 43 Penn. St. 389; Charter of City of St. Joseph, § 6, p. 62.)

II. The office of city councilman is a legislative office, and the final decision of the election, qualification, and return of a councilman, as well by parliamentary as by legislative provisions, vests in the city council itself, and the court can not interfere. (44 Penn. St. 336, 389; Cooley's Const. Lim. 624.)

III. Where there are two claimants under the same election for the same office, which only one of them can have, it constitutes a case of contested election, which is to be tried in the mode especially provided for in such cases, and not by the ordinary forms of judicial process. The mode of trying contested elections of councilmen of St. Joseph is especially provided for in its charter, and in such contests the courts have no jurisdiction. (44 Penn. St. 336; 3 Johns. 79; 1 Metc. 538; Cooley's Const. Lim. 634; Bradshaw v. Sherwood, 42 Mo. 184.)

CURRIER, Judge, delivered the opinion of the court.

This is an information in the nature of a writ of quo warranto to determine by what right the respondent exercises the office of councilman of the city of St. Joseph. The proceeding was instituted in the Buchanan Circuit Court, and is brought here by the relator, on appeal from the District Court.

The information was demurred to on the ground, among other causes, of want of jurisdiction in the Circuit Court. That is the only point pressed upon our attention or relied upon in support of the demurrer. The question thus raised involves a construction of section 6, article II, of the charter of the city of St. Joseph, passed February 22, 1851. This section provides that “the board of councilmen shall judge of the qualifications, elections, and returns of the members thereof.” In pursuance of this enactment, the board passed upon the election and qualification of the respondent as a member of that body, and admitted him to a seat therein. It is therefore insisted by the respondent that his right to the office has been adjudicated by the only authority legally competent to pass upon the case. In other words, it is maintained that, under the charter, the judgment of the council board is final and conclusive; and that the Circuit Court, therefore, has no jurisdiction in the premises.

The authority of the board of councilmen, in the first instance, to pass upon the questions involved respecting the election and qualification of the respondent, is not disputed. But is the action of the council board final and conclusive? Doubtless the Legislature might have made it so. It has not, however, by any express terms, seen fit so to declare. If it thus intended, that intention is to be ascertained from a construction of the act in question in connection with other acts. The statute (Gen. Stat. 1865, ch. 157) confers upon the Circuit Court jurisdiction, on proper complaint, to try and give judgment of ouster in cases where “any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise” whatever. The language of the enactment is broad and comprehensive. In its terms it embraces the case at bar. Does the charter of the city of St. Joseph exempt the respondent from the operation of the comprehensive words of this statute? Not by its express terms, certainly; nor yet by the necessary force of the language employed. There is no necessary antagonism between the two acts. The council judges of the election...