State v. Evans

• Decision Date: 13 January 1902
• Citation: 166 Mo. 347,66 S.W. 355
• Parties: STATE ex inf. CROW, Atty. Gen., v. EVANS.
• Court: Missouri Supreme Court

66 S.W. 355

166 Mo. 347

STATE ex inf. CROW, Atty. Gen., v. EVANS.

Supreme Court of Missouri, Division No. 2.

January 13, 1902.

PUBLIC OFFICES — CIRCUIT CLERK — RECORDER — POPULATION — OUSTER — VESTED RIGHT — EVIDENCE — JUDICIAL NOTICE.

1. The court will take judicial notice of the published official census of the United States, for the purpose of determining the population of the several counties of the state at a given period.

2. Rev. St. 1899, § 9079, provides that in every county having a population of 10,000 the county court may make an order separating the offices of circuit clerk and recorder of deeds. Section 9080 provides that, if such order is made within 12 months next before the time provided for the election of a recorder, the governor of the state, on being notified by the county court, will appoint a recorder to hold office until his successor is qualified, and that the circuit clerk shall deliver to him all books and papers pertaining to the office of recorder. Held, on a petition showing that a county court had made such an order, and it appearing that the population justified the order, the court would award a writ of ouster against the circuit clerk, to compel him to deliver possession of the office of recorder to the governor's appointee; the clerk not having a vested right by virtue of his election to such office, entitling him to serve the full term for which he was elected.

Proceedings by the state, on the information of the attorney general, E. C. Crow, against William C. Evans, to oust the defendant from a public office. Writ of ouster awarded.

On the 27th day of November, 1901, the attorney general filed in this court the following information:

"In the Supreme Court of Missouri, Division No. 2, October Term, 1901. State of Missouri ex informatione Edward C. Crow, Attorney General, vs. William C. Evans. Comes now Edward C. Crow, attorney general of the state of Missouri, and informs the court that one William C. Evans has, without any legal right or authority whatsoever, since the 9th day of November, 1901, unlawfully usurped, used, held, and exercised the office of recorder of deeds within and for the county of Crawford, in said state of Missouri, which said office is an important public office, and that said William C. Evans does still unlawfully usurp, use, hold, and exercise the powers of said office within the state and county aforesaid, and since the 9th day of November, 1901, said William C. Evans has unlawfully claimed, received, and enjoyed the rights, fees, and emoluments belonging and appertaining to said office. Informant, the attorney general of the state of Missouri, by reason of the premises aforesaid, prays for judgment that said William C. Evans has unlawfully usurped and unlawfully held and exercised the said office of recorder of deeds within and for the county of Crawford and state aforesaid, and that proceedings at law be issued against said William C. Evans, and that he be ousted from said office. Edward C. Crow, Attorney General."

The writ having been duly served, the respondent, Evans, on the 21st day of December, 1901, filed the following answer and return:

"State of Missouri ex informatione Edward C. Crow, Attorney General, Informant, vs. William C. Evans, Respondent. Now at this day comes respondent, William C. Evans, and, for his amended answer to the information herein filed, denies that said respondent has, without any legal rights or authority whatsoever, since the 9th day of November, 1901, unlawfully usurped, used, held, and exercised the office of recorder of deeds within and for the county of Crawford, in the state of Missouri; denies that said respondent does still unlawfully usurp use, hold, and exercise the powers of said office within the state and county aforesaid since the 9th day of November, 1901; denies that said respondent has unlawfully claimed, received, and enjoyed the rights, fees, and emoluments belonging and appertaining to said office; and denies generally and specifically each and every other allegation contained in said information. And for further answer respondent avers that heretofore, to wit, on the 8th day of November, 1898, he was the legal candidate of the Republican party of Crawford county, Missouri, for the office of circuit clerk and recorder of deeds, having been duly nominated for such office by nomination legally and regularly made, as shown by the certified copy of the nominations of the Republican party of Crawford county, Missouri, herewith filed, marked `Exhibit A,' and made a part of this answer; that on the 8th day of November, 1898, at the regular and general election held in said Crawford county, Missouri, on the said 8th day of November, 1898, said respondent, as the candidate aforesaid, and one W. J. Self, were voted upon for the candidates to the office of circuit clerk and recorder of deeds within and for said county and state; that on the 10th day of November, 1898, the result of said election, and the votes cast thereat for the various candidates for the office of circuit clerk and recorder of deeds within and for said Crawford county, Missouri, was ascertained and determined by U. S. Wright, clerk of the county court within and for said county and state, together with the assistance of Marcus Earney and U. B. Wright, two of the judges of said county court, when and where it was ascertained and determined that the respondent herein, William C. Evans, had been duly and legally elected to the office of said circuit clerk and recorder of deeds, — he, the said respondent, having received 1,421 votes, as against 1,257 votes cast for W. J. Self, his opponent, — whereupon said U. S. Wright, clerk of the county court aforesaid, issued a certificate of election declaring that said respondent, William C. Evans, had been duly elected circuit clerk and recorder of deeds within and for said county and state, and certified the same to the secretary of state within and for Missouri, as required by law. And respondent further avers that afterwards, to wit, on the 5th day of December, 1898, a commission was duly issued by the governor of the state of Missouri, and attested by the secretary of state, commissioning said William C. Evans, clerk of the circuit court within and for said Crawford county, Missouri, for a term of four years, authorizing and empowering him, the said respondent, to discharge all the duties according to law pertaining to said office, which said commission is hereto attached, marked `Exhibit B,' and made a part of this answer; that on the 12th day of December, 1898, the respondent, William C. Evans, appeared before U. S. Wright, clerk of the county court within and for said county and state, and qualified by taking the oath and giving bond to the state of Missouri in the sum of $2,500, conditioned that he, the said William C. Evans, the respondent herein, should faithfully perform and discharge all the duties enjoined on him by law as recorder of deeds within and for said county and state as required by law, a certified copy of which said bond is herewith filed, marked `Exhibit C,' and made a part of this answer. Wherefore, by reason of all the premises, and by virtue of the certificate of election, qualification, and bonding as aforesaid, respondent avers that he has, during all the times aforesaid mentioned in the information herein filed, with legal right and authority, used, held, and exercised the duties and emoluments of the office of recorder of deeds within and for said Crawford county, Missouri, and still does lawfully use, hold, and exercise the rights, privileges, and liberties of said office of recorder of deeds, as well he might and still may do so under the law, as well as receive the emoluments of the office, all of which he is ready to prove and verify as the court shall award. Wherefore he prays judgment that the said office of recorder of deeds, its rights, duties, franchises, privileges, and emoluments belonging and appertaining thereto, by him claimed, may be adjudged to him as required by law. Wm. C. Evans, Respondent.

"State of Missouri, County of Crawford — ss.: On this 20th day of December, 1901, before me, a notary public, personally came one William C. Evans, who first being duly sworn, upon his oath says that the matters and facts stated and contained in the above and foregoing answer are true and correct. A. H. Harrison, Notary Public. [Seal.] My term expires August 30, 1903."

The attorney general...