State v. Maroney

• Citation: 90 S.W. 141,191 Mo. 531
• Parties: STATE ex rel. MOSCONI et al. v. MARONEY et al.
• Decision Date: 25 October 1905
• Court: United States State Supreme Court of Missouri

90 S.W. 141

191 Mo. 531

STATE ex rel. MOSCONI et al. v. MARONEY et al.

Supreme Court of Missouri.

October 25, 1905.

1. ELECTIONS — JUDGES AND CLERKS — PUBLIC OFFICES — TERM OF OFFICE.

The judges and clerks of election, appointed under the authority of Act March 28, 1903 (Laws 1903, p. 170), creating a board of election commisioners in cities having a population of over 300,000, requiring the board to appoint, 90 days prior to the first election after the adoption of the act and each two years thereafter, judges and clerks of election for each precinct in the city, providing for the removal of the judges and clerks from "office" for grounds specified, prescribing their duties, and fixing their emoluments, are public officers holding office for a fixed period.

2. SAME — REMOVAL — HEARING ON CHARGES — NECESSITY.

Act March 28, 1903 (Laws 1903, p. 170), creating a board of election commissioners in cities having a population of over 300,000, requiring the board to appoint judges and clerks of election in each precinct, and providing that if any person holding the position of judge or clerk is found disqualified or shall be guilty of misconduct, etc., he shall be removed from office by the board, does not authorize the board to remove a judge or clerk without the presentation of charges embracing causes for removal designated in the act, and notice of the same, with opportunity to be heard in defense.

Burgess and Valliant, JJ., dissenting.

In Banc. Application for a writ of prohibition by the state, on the relation of Antoni Mosconi and others, against Andrew C. Maroney and others to prohibit respondents, as the board of election commissioners, from removing relators from the position of judges and clerks of election. Granted.

The origin and nature of this proceeding may thus be stated: On the 20th of March, 1905, relators filed in this court their petition praying for the issuance of a writ of prohibition directed to respondents, prohibiting them from removing relators from certain official positions, which it is alleged they are holding under the laws of this state, without a hearing, upon charges duly presented and without notice of any investigation of charges so presented. A preliminary rule was issued upon the petition filed, and on March 23, 1905, respondents filed their return to said rule, and on the same day relators duly filed their motion for judgment upon the pleadings as filed. The petition in this cause (omitting certain formal allegations) states:

"The petitioners state: That Andrew C. Maroney, Thomas K. Skinker, and Benjamin Schnurmacher do now, and did at the times hereinafter stated, compose the board of election commissioners for the city of St. Louis. That heretofore, to wit, on the 10th day of October, 1904, and 90 days prior to the next state election in said city and state, petitioners were, under the provisions of section 7 of the act of General Assembly approved March 28, 1903 (Laws 1903, p. 174), each severally appointed judges and clerks of election for the precincts in which the petitioners respectively reside. That each of the petitioners were appointed for a term of two years; that they were each qualified voters in the respective precincts for which they were appointed, as above alleged; that they were and are each citizens of the United States, men of good repute and character, able to read and write the English language, of good standing and capable; that they and each of them had resided in the precinct for which they were so appointed for more than 30 days before their appointment, and they and each of them were entitled to vote therein at the next election. That they and each of them held no office or employment under the United States, or under the state of Missouri, or under the city of St. Louis, and none of them; that no objection to the qualifications of any of the petitioners was ever made to the respondents within the time prescribed by section 8 of said act, and the time for making such objections as prescribed by said section has long since expired. That after their several appointments each of the petitioners took and subscribed to the oath prescribed by law, and filed the same in the office of the election commissioners, and entered upon and have since performed their duties as judges and clerks of election in said city; that by virtue of the provisions of said act of the General Assembly the petitioners are empowered and required to serve as judges and clerks of election at all elections in said city. That petitioners and each of them are, and were at the time of their said appointments, either members of the Democratic or Republican Parties, being equally divided between said parties, and were appointed by respondents under the provisions of said law, which requires that two of the four judges in each precinct shall belong to and be members of the political party which at the time of the last general state election for state officers polled the highest number of votes for Governor, and two of such judges shall belong to and be members of the political party which at the last general state election polled the next highest number of votes for Governor, the Democratic and Republican Parties having at the last state election next to the appointment of petitioners polled, respectively, the highest number of votes for Governor; that the clerks of election as aforesaid were appointed by respondents under the provisions of said law, which requires that two of the four clerks in each precinct shall belong to and be members of the political party which at the last general state election for state officers polled the highest number of votes for Governor, and two of said clerks shall belong to and be members of the political party which at the last state election polled the next highest number of votes for Governor, the Democratic and Republican Parties having at the last state election next before the appointment of said petitioners polled the highest and next highest number of votes for Governor, respectively. That by the provisions of section 18 of said act of the General Assembly it is made the duty of judges of election to supervise the precinct registration in said city, and to meet with the election commissioners, who, together with all of the judges and clerks of election in said city, constitute, under said law, the board of registry, and from time to time, as prescribed by said law, revise the registration of said city, and it is likewise the duty of the judges of election to be present at the precinct polling places at each election held in said city, and administer the oaths required by law to be administered to the officers of election, take charge of the ballot boxes and keys thereto, supervise the election, and see that all qualified voters are permitted to cast their votes, to receive the ballots, make the indorsements thereon required by law, and record the vote in the registration books, as provided by the said act of the General Assembly, and at the close of the election canvass the vote and make return thereof to the board of election commissioners. That each judge and clerk of election is by law exempt from jury duty during the term of his office and until two years after his term shall expire, if he shall perform his duty as such judge at each election during his term of office. That by section 48 of said law each judge and clerk of election is entitled to have and receive as compensation for his services the sum of $4 per day, to be paid by the city of St. Louis, which by said law is required to make the necessary appropriation therefor.

"Petitioners further state that ever since their appointment as aforesaid they have performed each and every of the duties required of them by law, and are now discharging the duties of their said office. That the next election in the city of St. Louis will be held on the 4th day of April, 1905, and these petitioners, by virtue of their said office as judges and clerks of election, will be judges and clerks of said election. That petitioners have been guilty of no misconduct justifying their removal from the position of judges and clerks of election as aforesaid. Petitioners show to the court that the only provision of law concerning the removal of judges or clerks of election is the following provision of section 7 of said act of the General Assembly, to wit: `If any person holding the position of judge or clerk of election is found not to possess all qualifications prescribed in this section, or if any such judge or clerk shall be guilty of neglecting the duties of the place, or be guilty of any official misconduct, then such person shall be removed from office by the commissioners, and any such vacancy shall be immediately filled by the appointment of a person having the same qualifications as the person whose place he fills, as hereby required, who shall be selected and appointed as this section provides.' The petitioners show to the court that they each severally possess all of the qualifications prescribed by said law; that they have been guilty of no neglect of the duties of their place as judges and clerks of election; and that they have been guilty of no official misconduct. Petitioners show to the court that the respondents have informed the petitioners and each of them that they were considering the advisability of removing petitioners and each of them from their offices, respectively, as judges and clerks, without giving said petitioners or any of them any legal notice of charges, if any, made against them, or that the respondents claimed or had information that the petitioners or any of them did not possess all the qualifications prescribed in said law, or that any of them have been guilty of neglecting the duties of the offices aforesaid, or have been guilty of any official misconduct, and said respondents purpose and intend to, and will, unless prohibited by this court, remove and oust the...