State v. Caldwell

• Decision Date: 06 October 1925
• Docket Number: No. 24740.,24740.
• Citation: 276 S.W. 631
• Parties: STATE ex rel. DAVIDSON v. CALDWELL et al., Tp. Board.
• Court: Missouri Supreme Court

276 S.W. 631

STATE ex rel. DAVIDSON v. CALDWELL et al., Tp. Board.

No. 24740.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Appeal from Circuit Court, Dunklin County Frank Kelly, Judge.

Certiorari by the State, on the relation of A. A. Davidson, against I. W. Caldwell and others, constituting the Township Board of Holcomb Township, Dunklin County. Judgment for relator, and respondents appeal. Transferred to Supreme Court by Court of Appeals. Affirmed.

Hall & Billings, of Kennett, for appellants.

McKay & Jones, of Kennett, for respondent.

WALKER, P. J.

This action, sounding in certiorari, was brought in the circuit court of Dunklin county to quash the record of the township board of Holcomb township ousting the relator as constable of said township, and to quash certain orders of said board appointing his successor. Dunklin county having adopted township organization (chapter 121, R. S. 1919), the law in regard thereto, being in force at the time of this proceeding, is applicable to Holcomb township. A writ of certiorari was issued by the judge of the circuit court of Dunklin county, directing the board of Holcomb township to certify to said court the record of its proceedings in regard to the matter here under review. Respondents filed a motion to quash the writ and also a demurrer thereto. These in their order were overruled. Respondents thereupon filed an application for a change of venue and also a return to the writ. The application was granted, and the case was sent to the circuit court of Cape Girardeau county, where the respondents filed a motion to dismiss, on the ground of a defect of parties, that the township and not the board of trustees should have been sued. This motion was overruled. Thereafter at the same term respondents filed a motion for a judgment on the pleadings, together with a demurrer and a motion to quash, which, after argument of counsel, the court took under advisement and overruled, and later, at the same term, the cause was reargued and submitted, and an order was made dismissing the relator's petition on the ground that the writ was void because it had been issued by the clerk. Thereupon the relator filed a motion to set aside the order of dismissal of his petition, which, having been heard on argument of counsel for the respective parties, was sustained, and the court's order set aside and the case reinstated on the docket. Upon a rehearing upon the merits the court found that the respondents, as members of such township board, had failed to give the relator, Davidson, the ten days' notice of his election required by law. The remainder of said judgment was in these words:

"And that the order of the township board made and entered on the 14th day of May, 1921, declaring the said office of the constable of Holcomb township vacant, and the order, made and entered on the ____ day of June, 1921, by the township board appointing S. E. Stephens as constable of Holcomb township, is void and of no binding force and effect, and that said orders as aforesaid are by the court canceled, set aside and for naught held, and that all the proceedings had by the township board touching the ousting of A. A. Davidson as constable of Holcomb township and the appointing of S. E. Stephens as such constable is void, and the same is quashed, set aside, canceled, annulled, and for naught held, and the costs of this proceeding are taxed as follows:

"All costs of the case, except the costs of the subpœnaing and attendance of the witnesses subpœnaed on behalf of respondents and the costs incurred by reason of the change of venue taken by the respondents, are taxed against relator; the costs excepted above are taxed against respondents."

In compliance with the required procedure the respondents appealed to the St. Louis Court of Appeals, which on its own motion transferred the case to this court on the ground that title to "any office under this state" was involved (section 12, art. 6), and that the appeal should have been to this court.

Other facts of record necessary to an understanding of those stated are as follows— they are presented more in the order of their occurrence than logically:

At a general election held in Holcomb township, March 29, 1921, the relator was elected to the office of constable. On the 14th day of May, 1921, the township board, on the petition of certain citizens of the township, declared the office of constable vacant. On the 23d of May, 1921, the relator filed an affidavit for an appeal to the circuit court from the action of the board declaring the office vacant, which was granted, and the bond filed by the relator on the same day to stay further proceedings was approved by the township board. On the 21st day of May the township clerk notified the relator of his election as constable, and on the day he received the notice he made and subscribed to an oath before a justice of the peace to faithfully demean himself in office as constable, and filed the oath and his acceptance of the office with the township clerk; and within ten days after the receipt of his notice of election, to wit, May 27, 1921, relator made and executed an official bond to the trustees or board of said township in the sum of $1,000, with sufficient sureties thereon for the faithful discharge of the duties of his office, and submitted the same to the board for its approval, which was refused. The grounds of said refusal were not based on the insufficiency of the bond, but that the board had theretofore declared the office of constable vacant on account of the failure of the relator to qualify as required by law. It appears that the relator, at the time of his election, March 29, 1921, and when the office was declared vacant, was discharging the duties of the office of constable of said township under the authority of a regular election to said office held two years prior thereto. On the 27th day of May, after the perfecting of relator's appeal from the order of the board, declaring the office of constable vacant and the approval of his bond for a stay pending such appeal, the board proceeded to appoint one Stephens as constable of the township until the next general election.

Technically considered, there is no assignment of errors such as is required by our procedure. The statute, section 1511, R. S. 1919, and our rule 15 distinctly require a specific statement of the errors assigned. This rule is not complied with when such specifications as the following are grouped under the title of an assignment of errors:

"First, the writ of certiorari issued is void; second, fatal misdirection of the writ; third, certiorari will not lie; fourth, relator waived same by asking for reappointment; fifth, pendency of another suit for same cause of action by relator against appellants and defendants; sixth, absence of written notice of election not jurisdictional to the action taken by corporate body; seventh, the judgment of the circuit court is a nullity."

While we have held in the absence of an assignment of errors that the same might be supplied by allegations of error in the "points and authorities," the "brief," which was probably intended to state the points relied on, is nothing more than an abstract of the law contended by respondents to be applicable to the case, and does not supply the absence of an assignment.

However, the importance of a construction of the statutes defining the authority of township boards of trustees prompts a consideration of this appeal on the merits, notwithstanding the disregard of our rules of procedure.

I. The construction of this constitutional provision, so far as concerns the character of the office involved, has been comprehensive as well as liberal. It has been held to apply to a state board of equalization (Gardner v. Hall, 282 Mo. 425, 221 S. W. 708); to a clerk of a circuit court (State ex rel. v. Rombauer, 101 Mo. 499, 14 S. W. 726); to members of a school board (State ex rel. v. Rombauer, 104 Mo. 619, 15 S. W. 850, 16 S. W. 502); to school directors (State ex inf. v. Fasse, 189 Mo. 532, 88 S. W. 1); to a county collector (Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653); to a township trustee and collector (Macrae v. Coles [Mo. Sup.] 183 S. W. 578); to a justice of the peace (Ramsey v. Huck, 267 Mo. 333, 184 S. W. 966); to a grain inspector (State ex rel. v. Knott, 207 Mo. 167, 105 S. W. 1040); to a member of a county highway board (State ex rel. Flowers v. Morehead, 256 Mo. 683, 165 S. W. 746). These rulings are determinative of the question of jurisdiction. So far as the character of the office is concerned, if it is one to which the officer has been elected or appointed under the authority of the law and requires the performance of duties prescribed by law, it is such an office as is meant by the Constitution. State ex rel. Zevely v. Hackmann, 300 Mo. 59, 254 S. W. 53; State ex rel. v. Bus, 135 Mo. 331, 36 S. W. 636, 33 L. R. A. 616.

More difficulty is encountered in determining whether the act of the township board in ousting the relator is of such a nature as to authorize a proceeding in certiorari. It is necessary to such authority that the act complained of be judicial or quasi judicial in its nature.

In determining, therefore, whether certiorari will lie, it is the nature of the act, rather than the character of the office, board or body which performs it, that determines whether a judicial or semijudicial function is performed (Lansdon v. State Board...