State v. Miles

• Citation: 109 S.W. 595,210 Mo. 127
• Parties: STATE ex rel. GUION v. MILES et al.
• Decision Date: 27 February 1908
• Court: United States State Supreme Court of Missouri

109 S.W. 595

210 Mo. 127

STATE ex rel. GUION v. MILES et al.

Supreme Court of Missouri.

February 27, 1908.

1. STATUTES — CONSTRUCTION — STATUTES ADOPTED FROM OTHER STATES.

When the statute of another state is adopted, the construction placed on the statute prior to its adoption presumptively governs.

2. SAME.

It is not essential to the application of the rule that, when the statute of another state is adopted, the construction placed thereon prior to the adoption presumptively governs, that the statute adopted should be a literal copy of the one of the foreign state; but it is only necessary that the substance of the statute, or some controlling word, has been borrowed and adopted.

3. ELECTIONS — PRIMARY ELECTIONS — MEMBER OF POLITICAL COMMITTEE — RIGHT TO REMOVE.

Act March 13, 1901 (Laws 1901, p. 149 [Ann. St. 1906, §§ 7162-1 to 7162-26]), providing for primary elections in cities having a designated population, authorizing the election biennially at a primary election of the members of the general committee of the political parties to serve for two years, and empowering such committees to adopt rules and regulations not contrary to the statutes, held, that the general committee of a political party could not remove an elected member of the committee under a rule of the committee authorizing the expulsion of a committeeman for failure without a reasonable excuse to attend three successive meetings of the committee; the rule being in violation of the statute.

4. MANDAMUS — SUBJECTS OF RELIEF — REINSTATEMENT IN OFFICE.

Where the duties imposed by law on a person either make him a public officer or a quasi public officer, or where the position is one wherein he has the right to perform the duties and functions required of him, and the matter

about which he performs the service is one of public concern, or where the position is one with such characteristics as to make it analogous to that of a public office, mandamus lies to restore him to the rights of which he has been illegally deprived by his being removed from his position.

5. SAME — "MANDAMUS."

"Mandamus" is a prerogative writ of a remedial nature, and it is issued in all cases where the party has a right to have anything done and has no other specific means of compelling performance, and it lies to restore one to the enjoyment of an office or position of trust of a public nature from which he has been wrongfully removed; but one cannot by mandamus litigate and determine title to an office.

For other definitions, see Words and Phrases, vol. 5, p. 4323; vol. 8, pp. 7714, 7715.]

6. SAME.

A member of a city central committee of a political party, elected at a primary election under Act March 13, 1901 (Laws 1901, p. 149 [Ann. St. 1906, §§ 7162-1 to 7162-26]), providing for a primary election in cities having a designated population, etc., is elected to fill a public position and to perform duties of public concern, and at least holds a position analogous to that of a public officer, and may maintain mandamus to compel his restoration to membership after his wrongful expulsion and after the selection by the committee of a successor.

7. ELECTIONS — PRIMARY ELECTION — STATUTES — VALIDITY.

Act March 13, 1901 (Laws 1901, p. 149 [Ann. St. 1906, §§ 7162-1 to 7162-26]), providing for a primary election in cities having 300,000 inhabitants, is valid.

Valliant and Graves, JJ., dissenting.

In Banc. Mandamus by the state, on the relation of Edward E. Guion, against James P. Miles and others, to reinstate relator as a member of the Democratic city central committee of the city of St. Louis. Writ granted.

This is an original proceeding, begun in this court, by which it is sought to obtain a peremptory writ of mandamus directing the respondents to reinstate the relator in his rights and privileges as a member of the Democratic city central committee of the city of St. Louis.

The relator in this cause on December 23, 1907, filed in this court an amended information, which substantially charges that the relator was on the 6th day of October, 1906, duly elected a member of the Democratic city central committee from the Sixth Ward of the city of St. Louis by direct vote at a primary election of the Democratic voters of said ward in said city. It is further averred that the primary election on the date heretofore mentioned and the choosing of committeemen at such election was in pursuance of an act of the General Assembly of Missouri, approved March 13, 1901 (Laws 1901, p. 149), relating to primary elections in cities having 300,000 inhabitants, and that the committeemen elected at said primary election were to represent the members of the political party known as the Democratic Party, a political organization which at the last preceding election polled 10,000 votes or more for Supreme Judge (no Governor being elected at such election); that the primary election at which relator was elected was held in pursuance of the provisions of the primary election law heretofore indicated, under an official call therefor by said Democratic city central committee of said city, the same being the managing and controlling committee of said party in said city. In pursuance of the official call for the primary election a notice was published in accordance with the requirements of the act of the General Assembly for the primary by the election commissioners of said city. The official call for the primary, as before suggested, specified, among other things, that "at the same primary election there shall also be elected by the direct vote of the Democratic electors in each of the 28 wards one member of the Democratic city central committee to serve for the ensuing two years," and said notice specified, among other things, that "at said primary election there will also be elected by the direct vote of the Democratic electors in each ward one member of the Democratic city central committee to serve during the ensuing two years." It is also averred in the information filed by the relator that after he was elected by the Democratic electors of the Sixth Ward of the city of St. Louis, as before stated, he received from the election commissioners a certificate of election, as provided in subdivision 4 of section 19 of said act, and entered upon the discharge of his duties as a member of said committee, and continued to act as a member thereof, in conjunction with the other persons elected as members of said committee elected at said primary election, and in every way performed his duties and exercised his rights as a member of said committee up to and until the 23d day of September, 1907.

It is further alleged in the information that the said Democratic city central committee of the city of St. Louis, prior to August 26, 1907, adopted certain rules, one of which at the time mentioned therein was as follows: "The committee shall meet the first Monday of every month, and during a campaign the committee shall meet as often as the majority may deem best." At the request in writing of a majority of the committee the chair shall call a special meeting of the committee by giving at least two days' notice of the same to each and every member by written notice addressed to the member's residence. Another of said rules at the time mentioned was: "The causes for which a committeeman may be expelled are: * * * (3) Failure without a reasonable excuse to attend three consecutive meetings of the committee." Then follows an allegation in the information that the relator failed to attend three consecutive meetings of said committee (said meetings having been held weekly, though it was not during a campaign); that at a meeting of said committee held on the 23d day of September 1907, a resolution was presented, voted upon, and declared by the chairman to be adopted, expelling the relator from membership in said committee because of his having been absent from three consecutive meetings of said committee. Following these allegations are the names of those voting in favor of said resolution of expulsion, and then it is charged that other persons whom the committee had wrongfully admitted to act as members of said committee voted upon the resolution. It is also averred and charged that after the adoption of the resolution expelling relator from the committee, at a meeting of said committee held on October 1, 1907, a pretended election was had, participated in by certain members of the committee and others whom they had wrongfully admitted as members of said committee, and that at such election one Patrick F. Garvey was admitted to said committee in place of this relator. It is then expressly alleged that no charges or specification of charges were ever preferred against the relator at any time, that he never received any notice that any charge would be preferred against him, and that no opportunity was ever given to him to defend himself against the accusation that he had been absent from three consecutive meetings of the committee, or to show his excuse for such absence. Then follows the averment that ever since the said 23d day of September, 1907, the date of the passage of the resolution expelling relator, the said respondents have wrongfully conspired and combined together to deny, and have denied, to relator admission to the meetings of said committee, and the right and opportunity to perform his duties and exercise his rights as a member thereof.

It is further alleged that there was no right or power conferred by the act of the General Assembly upon members of the central committee to expel any of the members of said committee selected by the electors of their party in the respective wards that they represented, and that the acts of the committee in adopting such resolution were a nullity and of no force or vitality, and that the pretended election of Patrick F. Garvey to membership in said committee in place of this relator was and is illegal and void, and conferred no right upon said...