State v. Merry

Citation3 Mo. 278
PartiesTHE STATE v. MERRY.
Decision Date31 October 1833
CourtUnited States State Supreme Court of Missouri

TOMPKINS, J.

The information upon which the proceedings in this case re founded, sets out that on the first Monday in April last, Samuel Merry, the defendant in this case, was elected may or of the city of St. Louis; and that said Samuel Merry, before and at the time of said election, held an office of profit under the United States, and was commissioned by the President of the United States; and that after such election the defendant claimed to exercise and did exercise the powers and duties of mayor of said city of St. Louis. The plea of the defendant admits the facts charged. The counsel for the plaintiff contend:

First. That this court have no jurisdiction of the cause.

Second. But if this court have jurisdiction of the cause, they then contend that Merry is rightfully elected.

First, This court conceives that jurisdiction of this cause is given to it by the 3d section of the 5th article of the Constitution of this State, which gives a general superintending control over all inferior courts of law, and the power to issue writs of habeas corpus, mandamus, quo warranto, and other original remedial writs, and to hear and determine the sam.

The Legislature has not prescribed any mode of proceeding in a cause like the present; but in the absence of such regulations the court will proceed to discharge its duties by a course conformable to the common law usage. (a)

Second. To maintain this point, viz: that the defendant is eligible notwithstanding he holds an offic of profit under the United States, his counsel rely on the the first section of “An Act supplementary to an act entitled an act to incorporate the inhabitants of the town of St. Lonis,” viz: “that the mayor of the city shall be at least thirty years of age, a citizen of the United States, shall have resided within the city for at least two years preceding his election, and be otherwise qualified as in the case of aldermen.” And they contend that the 9th section of the act to which this act is a supplement is repealed. The 9th section of the act above alluded to is in the words following, to-wit: “that the mayor shall be at least thirty years old, a citizen of the United States, shall have resided within the city for at least two years next preceding his election, and be otherwise qualified as in the case of aldermen; and provided that no person shall be eligible to the office of mayor who may at the time of his election, hold any office of honor, trust or profit under this State or the United States.” The first section of the supplementary act enumerates all the qualifications required to make one eligible to the office of mayor, that are found in the ninth section of the first act, except that contained in the proviso, viz: that no person shall be eligible to the office of mayor who at the time of his election may hold any office of honor, trust or profit under this State or the United States. It may here be observed, too, that the omission of the word “next” in the first section of the amendatory act seems to make a difference as to the time of residence, viz: that such residence need not now necessarily be next preceding the election. On the part of the defendant it is contended that, First. The proviso of the 9th section of the original act is repugnant to the provisions of the first section of the amendatory act. Second. That the Legislature, having in the amendatory act taken up the subject of the qualifications required to make one eligible to the office of mayor, may be supposed to have dispensed with all other than the qualifications enumerated in the said first section of the amendatory act, which is the last expression of the legislative will.

To the first it may be answered that the proviso to the 9th section of the first act is no more repugnant to the provisions of the first section of the amendatory act than it was to the ninth section, before a part thereof was impliedly repealed by the enactment of the first section of the amending act, for they are both substantially the same.

Second. This point might perhaps have been more successfully urged had it not been expressly provided in the tenth section of the amendatory act, “that all such parts of the act to which this is a supplement as are contrary to or inconsistent with the provisions of this act, be and the same are hereby repealed.” It seems clear from this expression of the legislative will, that such parts of the act to which this is a supplement, as are not contrary to or inconsistent with the provisions of this act, shall be still in full force and effect. In the case of Goodenow v. Buttrick, the court held that though the Legislature, when revising laws, had a particular statute before it, yet if a particular section...

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18 cases
  • State ex rel. Young v. Village of Kent
    • United States
    • Minnesota Supreme Court
    • November 17, 1905
    ... ... Bishop, 44 Mo. 229; State v. Townsley, 56 Mo ... 107; State v. Rose, 84 Mo. 198; State v ... McMillan, 108 Mo. 153, 18 S.W. 784. See also Short, ... Mand. 175; High, Ex. Leg. Rem. (3d Ed.) § 45, and cases ... cited. This has been the rule of this state ever since State ... v. Merry, 3 Mo. 278." See also State v ... Lindell, 151 Mo. 162, 52 S.W. 248; State v ... Balcom, 71 Mo.App. 27; State v. Bland, 144 Mo ... 534, 46 S.W. 440; State v. Berkeley, 140 Mo. 184, 41 ... S.W. 732; State v. McSpaden, 137 Mo. 628, 39 S.W ... 81; State v. Town of Mansfield, 99 ... ...
  • State ex rel. Young v. Kent
    • United States
    • Minnesota Supreme Court
    • November 17, 1905
    ...784. See, also, Short, Mand. 175; High, Ex. Rem. (2d Ed.) § 45, and cases cited. This has been the rule of this state ever since State v. Merry, 3 Mo. 278.’ See, also, State v. Lindell Ry. Co., 151 Mo. 162, 52 S. W. 248;State v. Balcom, 71 Mo. App. 27;State v. Bland, 144 Mo. 534, 46 S. W. 4......
  • State ex rel. v. Village of Kent
    • United States
    • Minnesota Supreme Court
    • November 17, 1905
    ...784. See also Short, Mand. 175; High, Ex. Leg. Rem. (3d Ed.) § 45, and cases cited. This has been the rule of this state ever since State v. Merry, 3 Mo. 278." See also State v. Lindell, 151 Mo. 162, 52 S. W. 248; State v. Balcom, 71 Mo. App. 27; State v. Bland, 144 Mo. 534, 46 S. W. 440; S......
  • Donnell v. Lee
    • United States
    • Missouri Court of Appeals
    • December 23, 1902
    ...on the same subject, unless the special law is expressly repealed, or the conflict between the two is absolutely irreconcilable. State v. Merry, 3 Mo. 278; ex rel. v. Severance, 55 Mo. 378; Ex parte Joffe, 46 Mo.App. 360; State ex rel. v. Stratton, 136 Mo. 423. BLAND, P. J. Barclay, J., con......
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