State ex rel. Vail v. Draper

• Citation: 48 Mo. 213
• Parties: STATE ex rel. JAMES H. VAIL, Relator, v. DANIEL M. DRAPER, AUDITOR, Respondent.
• Decision Date: 31 July 1871
• Court: United States State Supreme Court of Missouri

48 Mo. 213

STATE ex rel. JAMES H. VAIL, Relator,

v.DANIEL M. DRAPER, AUDITOR, Respondent.

Supreme Court of Missouri.

July Term, 1871.

Petition for Mandamus.

Ira E. Leonard, with Reynolds & Relfe, for relator.

Relator is in under color of title at least--that is, under the commission issued by Governor McClurg to him, on the 20th day of April, 1869. Even though the commission may have been wrongfully issued to Vail, and Vail may not have been elected, the commission for that reason is not void; he was and is de facto judge (St. Louis County Court v. Sparks, 10 Mo. 118), and could only be ousted by the means and in the manner designated by law.

(Counsel here reviewed and commented upon the cases of State ex rel. Jackson v. Auditor, 34 Mo. 375; Winston v. Auditor, 35 Mo. 146; and State ex rel. Jackson v. Auditor, 36 Mo. 70, to show that they did not avail respondent.)

The auditor could not recognize Dinning as an officer without at least a prima facie case showing that the latter was properly in office. No such a case was presented.

If respondent has the superior title to the office, let him oust the relator by due process of law, and he is then amply assisted by the courts in recovering back any moneys wrongfully taken by the relator.

A. J. Baker, Attorney-General, for respondent, relied on State ex rel.Jackson v. Mosely, 34 Mo. 71; State ex rel. Jackson v. Thompson, 37 Mo. 375.

WAGNER, Judge, delivered the opinion of the court.

The relator asks this court to grant a peremptory mandamus to compel the State auditor to issue a warrant in his favor for salary as judge of the Fifteenth Judicial Circuit, for the fiscal quarter ending on the 30th of June, 1871. The action of the auditor in refusing to draw the warrant is based on the fact that the official register in the office of the Secretary of State shows that on the 14th of April, 1871, the governor of this State commissioned Louis F. Dinning to be judge of the said circuit.

The record in the case, as made up by the pleadings, shows that both Vail and Dinning trace their title to office under and through the general election held in 1868. At that election they were both candidates for the judgeship in the Fifteenth Judicial Circuit. The register of civil officers kept in the office of the Secretary of State shows that on the 20th day of April, 1869, Governor McClurg commissioned James H. Vail (the relator) judge of the Fifteenth Circuit, “it appearing to him that he was duly elected on the 3d day of November, 1868.” Under this commission Vail qualified and proceeded to discharge the duties and functions of the office, receiving the salary and emoluments thereof, and has ever since performed the duties of the same.

On the 14th of April, 1871, about two years after the first commission issued to Vail, Governor Brown commissioned Louis F. Dinning judge of the same circuit, “it having been certified by the Hon. Francis Rodman, Secretary of State, that he was duly elected November 3d, 1868.” It thus appears that there is a contest in the Fifteenth Circuit as to who is the rightful judge thereof. With that contest we have nothing to do in this proceeding, as the right to an office cannot be determined upon an application for a mandamus directed to the auditor for a warrant for a salary. (State ex rel. Jackson v. Mosely, 34 Mo. 375; 36 Mo. 70; Winston v. Mosely, 35 Mo. 146.)

No parties are here contesting, and the only question for us to decide is, who is entitled to the salary as the case is now presented? Which of the parties was originally entitled to the commission we do not know, nor are we at liberty to give an opinion. When Governor McClurg, acting upon evidence which he doubtless deemed satisfactory, of Vail's election, issued a commission to him, the executive function, so far as commissioning a judge for that circuit was concerned, was exhausted. The commission invested Vail with the title, and was prima facie evidence of his right to the office. It gave him the possession, and he could only be deprived of it or ousted upon due process, in the manner prescribed by law. He exercised its duties and privileges by color of law, and that was sufficient till some other person legally established a better and a higher right.

After the governor had issued his commission, and Vail had qualified and been inducted into office, it was incompetent for any subsequent governor, upon any evidence whatever, to attempt to nullify or revoke that commission and devolve the office upon another. It is true that Governor Brown acted upon the certificate of Mr. Rodman, the former Secretary of State, and the evidence of Dinning's right was doubtless to him...