State ex rel. Wingate v. Woodson

• Citation: 41 Mo. 227
• Parties: STATE OF MISSOURI ex rel. R. F. WINGATE, Attorney-General, Petitioner, v. WARREN WOODSON, Respondent.
• Decision Date: 31 July 1867
• Court: United States State Supreme Court of Missouri

41 Mo. 227

STATE OF MISSOURI ex rel. R. F. WINGATE, Attorney-General, Petitioner,

v.WARREN WOODSON, Respondent.

Supreme Court of Missouri.

July Term, 1867.

Information in the nature of Quo Warranto.

Attorney-General Wingate, and A. F. Denny, for State.

I. No person who has done any of the acts specified in § 3, art. 2, State Constitution, is entitled to hold any office of honor, or trust, or profit-- Vide latter part of section 3, art. 2, Const.

II. The decree of the Circuit Court, relieving the defendant from the disability, is void. The proceedings being summary and ex parte under a special provision of the Constitution prescribing the course to be pursued, that course must be strictly followed, otherwise the proceedings are void--Morton v. Reed, 6 Mo. 73; Crooks v. Thurston. 8 Mo. 344; Ruby v. Huntsman, 32 Mo. 501; Thatcher v. Powell, 6 Wheat. 119; Young v. Morain, 11 Ills. 636; Wallace v. Vigas, 4 Blkfd. 260; The People v. Woodbury, 14 Cal. 43; In reUnderwood. 3 Cow. 59: Bloom v. Burdick. 1 Hill, 139; Atkins v. Kinnon, 20 Wend. 249; Ex parteSimmonton, 9 Porter, 396-7; Wyman v. Mitchell, 1 Cow. 316; Black, on Tax Titles, 2d ed., 184; 2 Phil. on Ev. (Cow. & Hill's Notes), 137-48; Clapp v. Beardsley, 1 Aiken, 168.

III. The record of the Boone Circuit Court does not show that defendant was a resident of Boone county--§ 23, art. 2, State Const.

IV. The record of the proceedings of the Boone Circuit Court does not show that defendant voluntarily entered the military service of the United States-- sec. 23, art. 2, State Const.; 19 Johns. 7.

V. The defendant being ineligible, the votes cast for him were nullities; and the party receiving the next highest vote, if eligible, is entitled to the office--§ 3, art. 2, Const.; § 8, art. 2, Const.; Cush. Law & Prac. Leg. Assm. 66; Gulick v. New, 14 Ind. 93; State v. Johnson, 17 Ark. 407; Patterson v. Miller, 2 Ky. (Metc.) 493; The People v. Vail, 20 Wend. 12.

Wm. A. Hall, for defendant.

FAGG, Judge, delivered the opinion of the court.

The questions for consideration in this case arise upon a demurrer to the answer of the defendant.

The information in the nature of a quo warranto, filed by the Attorney-General against the defendant, alleges that at a general election held in the county of Boone on the 6th day of November, 1866, one Henry N. Cook was duly elected clerk of the County Court of said county, he having received the highest number of legal votes cast for any one person for that office, and for whom the same could be legally counted; that the defendant on or about the 8th day of January, 1867, did usurp and intrude into said office, and has since that time unlawfully and wrongfully held the same, having no legal authority or commission therefor. It is admitted that the defendant was voted for at said election for that office; but it is charged that by reason of his disloyalty to the Government of the United States, and by failing to take and subscribe the oath of loyalty required by the Constitution of the State, he was ineligible thereto. The answer admits that defendant did take possession of the office, but denies that his act was wrongful and without authority; on the contrary, it alleges that he was duly elected and commissioned as required by law. It is admitted that the defendant sympathized with persons in armed hostility to the Government of the United States, but it is alleged that he was subsequently relieved from that disqualification by a decree of the Circuit Court of Boone county. A copy of the petition and proceedings of the court are attached to and made part of the answer.

It is also averred that, within the time prescribed by law, he took and subscribed the oath required to be taken by candidates for office, except so much as refers to the 3d section of the 2d article of the Constitution. The answer also contains a statement of the facts upon which the defendant claimed to be relieved by the Circuit Court, and upon which the jurisdiction of that tribunal in the premises rested. It concludes by denying that defendant was bound to take the oath, except in the form in which he did take it, and avers that “all that part of the oath of loyalty referring to the past acts and conduct of the defendant is contrary to the Constitution of the United States and void in this: that it is an ex post facto law and a bill of attainder.”

The qualifications necessary to hold office are, so far as the question of loyalty is concerned, identical with those prescribed for voters. The same oath is required to be taken in both cases. In the case of Blair v. Ridgely, the question as to whether this provision of the State Constitution is in conflict with the Constitution of the United States was fully considered and determined by this court at its last March term in St. Louis. It will not be necessary therefore to discuss it now, or to restate the reason upon which the decision in that case rests.

The power of the State to declare in its fundamental law, or, when that is silent upon the subject, by legislative enactment, what shall constitute the test of eligibility to office, is as clear and unquestionable as is the power to fix the qualifications of voters; that point, therefore, may be disposed of by a simple reference to the case just cited. The only remaining point for consideration is the validity of the decree of the Circuit Court by which the defendant claims to have been relieved from a disqualification which his own petition to that court admitted to exist. The Constitution of the State has in cases of this sort conferred upon the Circuit Courts a peculiar and extraordinary jurisdiction. The grounds upon which it is made to depend as well as the manner of proceeding are set out with great minuteness in the Constitution. All of the authorities seem to agree substantially that in such cases the provisions of the law must be strictly followed, or else the action of the court should be held to be illegal and void. The case of Thatcher v. Powell, 6 Wheat. 119, may be regarded as the leading case upon that point, and one that has been uniformly followed by the State courts. Ch. Justice Marshall, in delivering the opinion of the court, says: “In summary proceedings when a court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction ought to appear in order to show that its proceedings are coram judice,” Morton v. Reed, 6 Mo. 64; Crook et al. v. Peebly, 8 Mo. 344; Young et al. v. Lorain et al. 11 Ills. 624; Dentler v. State, 4 Blkfd. 258, and Bloom v. Burdick, 1 Hill, 130, may also be referred to as expressly recognizing the same doctrine. The record and proceedings of the Circuit Court, as shown by an attested copy of the same attached to the defendant's answer, fails as we think to exhibit the facts necessary to warrant the decree. Following the authorities upon this point, nothing ought to be left to implication or inference. If the necessary facts are not stated in a proceeding of that sort, the court must conclude that they do not exist. It would seem to be required of the applicant to show affirmatively that he was a resident of the county in which his application is made. From the very nature of the case this appears to be a reasonable requirement, imposing no hardship upon the petitioner, and affording an opportunity to persons familiar with his character and deportment to controvert the facts upon which his application may be based. It is, however, not requisite that this requirement should be supported by argument; it is enough to say it is so written, and must be followed. Passing by this point however, and assuming for the sake of the argument that the application and proceedings of the court were in all other respects right and proper, the fact most important of all, and the one absolutely necessary to support the jurisdiction of the court, is not stated, 1st. It should have been sufficiently averred that the petitioner, after the commission of the act of disloyalty, had voluntarily entered the military service of the United States; 2d. That he had been honorably discharged therefrom; 3d. That since his discharge he has demeaned himself in all respects as a loyal and faithful citizen.

The petition, after stating the acts of disloyalty committed by the defendant, proceeds as follows: “That sometime in the summer or fall of 1864 he voluntarily entered the service of the country in a company commanded by Capt. James S. Rollins, who was in actual service under the immediate command of Capt. Cary, who was in the United States voluntary service.” Such an averment totally fails to meet the requirement of the law. This failure is not cured by a positive averment in any other part of the petition, that the defendant had ever voluntarily entered the military service of the United States. There can be no misunderstanding about the meaning of these words. They exclude the idea of any other kind of service except that performed by a military force regularly sworn and mustered into the service of the United States. The public history of the times justifies us in taking judicial notice of the fact that there were many organizations of the character stated in the defendant's petition--most of them, perhaps, authorized and equipped by officers of the United States. Still it cannot be pretended that forces thus raised for local protection against guerrillas and outlaws, even though they may have incidentally assisted the Government in carrying on its military operations, were in any just sense United States soldiers. This, we apprehend, is the test which the Constitution intends shall be applied to every one seeking to avail himself of the benefits of its provisions. We, of course, have nothing to do with the policy which may have dictated such a requirement in the Constitution. It is the province of the court simply to see that the law is...