State ex rel. Walker v. Powles
| Citation | 37 S.W. 1124,136 Mo. 376 |
| Parties | The State ex rel. Walker, Attorney General, v. Powles |
| Decision Date | 15 December 1896 |
| Court | United States State Supreme Court of Missouri |
Judgment of ouster awarded.
R. F Walker, attorney general, and Olden, Orr & Tillman for relator.
Respondent's commission issued in August, 1889, terminated at the general election in 1890, when all justices were elected for a term of four years by the terms of the statute; his commission issued in November, 1892, by its own terms and the law ended in November, 1894. Whether it be held that Howell township was, in November, 1894, entitled to three justices, one of whom should be a resident of West Plains, or only entitled to two as other townships, the full number were elected commissioned and qualified. And whether respondent's commission expired by its own terms or whether he was entitled to hold until his successor was elected and qualified, is immaterial, since his successor was elected commissioned, and qualified in November, 1894. See State ex rel. v. Spitz, 29 S.W. 1011; State v. Ransom, 73 Mo. 78; State v. Stonestreet, 99 Mo. 361; State v. Phillips, 11 S. Rep. (Fla.) 922; State v. Gardner, 54 N.W. 606; Whipper v. Reed, 9 S.C. 5; 64 Me. 595.
Orchard & Hines for respondent.
In Banc.
Quo Warranto.
This is a proceeding by quo warranto on the information of the attorney general to oust the defendant from his tenure of the office of justice of the peace within and for Howell township, Howell county, state of Missouri.
The answer of the respondent to the information, is, in substance: That on the ninth day of August, 1889, he was appointed justice of the peace within and for the city of West Plains; that said city is in the township of Howell, in Howell county, Missouri, having a population of more than two thousand, and less than one hundred thousand inhabitants; that at the time of his appointment he was and ever since has been a resident of said city, and that he has ever since said appointment held and enjoyed the office of justice of the peace within and for said city by virtue of said appointment.
Issue was joined by reply to this answer, and a commissioner appointed to take the testimony.
It appears from the evidence so taken that on the ninth day of August, 1889, the said Powles was appointed by the county court of Howell county "a justice of the peace within and for said township of Howell to serve until the next general election;" that he was duly commissioned and qualified as such, and ever since has been exercising the functions of a justice of the peace within and for said township; that he was so appointed because he was a resident of the city of West Plains, in said township, and because said city, having a population of more than two thousand inhabitants, was entitled to an additional justice of the peace. It further appears that afterward on the fourteenth day of November, 1892, in pursuance of an election held on the eighth of November, 1892, the said Powles was by the said county court appointed and commissioned a justice of the peace for the term of two years from said fourteenth day of November, 1892, "and until his successor in said office shall be duly appointed and qualified."
Afterward at the general election held on the sixth day of November, 1894, William H. Wheeler, B. W. Cope, and John H. Burnsworth, all residents of the city of West Plains, in said township, were elected justices of the peace within and for the township of Howell aforesaid, and on the eighth day of November, 1894, were duly commissioned, qualified, entered upon, and ever since have continued in the discharge of their duties as such; the commission of the said Wheeler and Cope, running in pursuance of said election, and the commission of the said Burnsworth in pursuance thereof "and by virtue of section 6090, of Revised Statutes of Missouri," and the commission of each "being for the term of four years from the date of his commission and until his successor in said office shall be duly appointed and qualified."
This was the situation when this writ was sued out, and when, on the thirteenth of April, 1896, it was served upon the respondent, and when on the sixth of May, 1896, he filed his answer herein.
Afterward on the seventh of May, 1896, the county court of Howell county appointed the said Powles "justice of the peace for said city of West Plains, Missouri, until the next general election and until his successor is duly elected and qualified." This last appointment was set up in the reply of the attorney general, who asks that the respondent be not only ousted, but that he be fined for his intrusion into the office aforesaid.
By statute, at the time respondent was first appointed, it was ever since has been, and still is, provided that "each municipal township, except as otherwise provided by law, shall be entitled to two justices of the peace, to be elected and commissioned in the manner hereinafter provided; but in case there shall be in any such township an incorporated town or city having a population of over two thousand inhabitants, and less than one hundred thousand inhabitants, said town or city shall be entitled to one additional justice of the peace, who shall be a resident of such town or city." * * * (R. S. 1879, sec. 2803, Laws 1887, p. 206; R....
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