State ex rel. Vail v. Clark

• Citation: 52 Mo. 508
• Parties: STATE OF MISSOURI, ex rel. JAMES H. VAIL, Relator, v. GEORGE B. CLARK, STATE AUDITOR, Respondent.
• Decision Date: 31 March 1873
• Court: United States State Supreme Court of Missouri

52 Mo. 508

STATE OF MISSOURI, ex rel. JAMES H. VAIL, Relator,

v.GEORGE B. CLARK, STATE AUDITOR, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Application for Mandamus.

Ira E. Leonard and George D. Reynolds, for Relator.

The commission from the governor, invested the relator with the title, and so far as this inquiry is concerned, is not only prima facie, but conclusive evidence of his right to the office and its emoluments. (The State, ex rel. Jackson vs. Auditor, 34 Mo., 375; Winston vs. Auditor, 35 Mo., 146; The State, ex rel. Jackson vs. Auditor, 36 Mo., 70; Beck vs. Jackson, 43 Mo., 117; State ex rel. Vail vs. Draper 48 Mo., 213.)

The proceeding, if successful, would simply result in ousting the Relator, and leave the office vacant, to be filled according to law. (Hunter vs. Chandler, 45 Mo., 452.)

This law was intended to apply solely to that class of cases, where two or more private persons contested the office, and not to this extraordinary official proceeding in the nature of a quo warranto.

H. Clay Ewing with Hill and Bowman, for Respondent.

A judge de facto is not entitled as between himself and the State, to draw his salary.

The law in question says: “Until the right to the same shall be legally determined between the persons or parties claiming such right.”

The State is a party within the meaning of this act.

The controversy as to the judgeship in the 26th Circuit was the very cause of the passage of this law.

If it shall be finally decided, that the relator is not and never was the legally elected and qualified judge of the 26th Circuit, the person who is held to be the judge de jure would have the right to demand his salary from the auditor.

EWING, Judge, delivered the opinion of the court.

The relator, James H. Vail, presented his petition to this court for a writ of mandamus to the State Auditor, in which he alleges, that he was duly commissioned judge of the 26th judical circuit of this State, on the 20th day of April, 1869, by virtue of which he has discharged and still discharges the duties of said office; and that on the 1st day of April, 1873, he presented to the auditor his account for salary as such judge for the quarter ending March 31st, 1873, and demanded a warrant therefor upon the treasurer, which the auditor refused to issue.

Upon this petition an alternative writ of mandamus was issued to the auditor. The auditor, in his return to this writ, alleges, as a justification of his refusal to issue a warrant to the relator, that he is prohibited from so doing by an act of the General Assembly approved Feb. 21, 1873, and that on said 1st day of April, 1873, and prior thereto, and at this time, the right to the office of judge of the 26th judical circuit was and is disputed, and that a proceeding was then and is still pending in the court upon a writ of quo warranto for the purpose of determining that question, of which the relator was duly notified. The return further showed, that when said account was presented to the auditor, and at the date of the return, there was a contest for said office of judge pending between the relator and Lewis F. Dinning.

The answer to the return admits the pendency in this court of an information by the State, at the relation of the attorney general, against the relator, but denies that there is any contest between the relator and Dinning for said office.

It is further alleged in the answer that the act of the General Assembly of February 21, 1873, referred to in the return, does not apply to an information officially exhibited by the attorney general at his own relation, nor does it apply to the office, pay or emoluments of a judical officer, and that the act is unconstitutional and void.

It is agreed between the parties that the only contest or dispute pending in any court between the relator or any one else for the office of judge of the 26th judicial circuit is the one now pending in this court at Jefferson City at the relation of the attorney general.

The question for our determination involves the construction of the act of the General Assembly relied on by the respondent in his return to the writ. This act, which purports by its title to amend chapter 10 of the General Statutes, being chapter 137 of Wagner's Statutes, by adding two sections thereto, provides that whenever any office, elective or appointive, the emoluments of which are required to be paid out of the State treasury, shall be contested or disputed by two or more persons claiming the right thereto, or by information in the nature of quo warranto, then no warrant shall be drawn by the auditor or paid by the treasurer for the salary by law attached to said office, until the right to the same shall be legally determined between the persons or parties...