State v. Rombauer

• Decision Date: 17 November 1890
• Citation: 14 S.W. 726,101 Mo. 499
• Parties: STATE ex rel. BLAKEMORE v. ROMBAUER et al., Judges.
• Court: Missouri Supreme Court

14 S.W. 726

101 Mo. 499

STATE ex rel. BLAKEMORE v. ROMBAUER et al., Judges.

Supreme Court of Missouri.

November 17, 1890.

JURISDICTION — ST. LOUIS COURT OF APPEALS — QUO WARRANTO — TITLE TO OFFICE.

1. Const. Mo. 1875, art. 6, § 12, provides that the St. Louis court of appeals shall have power to issue writs of quo warranto, and that appeals shall lie to, and writs of error issue from, the supreme court in certain cases before the courts of appeals, including those involving the title to any office under this state. The amendment adopted in November, 1884, provides (section 5) that, in all cases reviewable by the supreme court, writs of error shall issue from it direct to the circuit courts, and courts having jurisdiction thereof, and in all such cases appeals shall lie directly to the supreme court, which shall have exclusive jurisdiction of such writs of error and appeals, and shall in all such cases exclusively exercise superintending control over such trial courts. Section 8 provides that the supreme court shall have superintending control over the courts of appeal by mandamus, prohibition, and certiorari. Section 11 repeals all portions of the constitution inconsistent therewith. Held, that the St. Louis and Kansas City courts of appeals have no jurisdiction to issue writs of quo warranto in cases involving the title to any office in the state.

2. The office of clerk of the circuit court is "an office under this state," within Const. Mo. 1875, art. 6, § 12.

Prohibition.

James Carr and Lee & Ellis, for relator. Hough & Hough, for respondents.

BLACK, J.

The history of this case is as follows: William Bragg was the duly elected and qualified clerk of the circuit court of Dunklin county, having been elected for four years from and after the 1st day of January, 1887. On the 6th December, 1888, the judge of the circuit court suspended Bragg for alleged misdemeanors in office, and at the same time appointed James B. Blakemore temporary clerk. Informations were duly filed in the circuit court charging Bragg with the alleged misdemeanors; but before they came on for trial he resigned. The governor accepted the resignation, and on the 22d January, 1889, appointed Robert F. Sanders clerk, to fill the vacancy. Blakemore, who then discharged the duties of circuit clerk under the appointment made by the circuit judge, refused to surrender the office to Sanders; and thereupon the latter commenced a proceeding by quo warranto in the St. Louis court of appeals to oust Blakemore. After due consideration, that court gave judgment of ouster, and was about to issue a writ to carry into effect the judgment when Blakemore applied to this court for a writ of prohibition, upon consideration of which, we issued an order to show cause. The case is now before us on a return made by the judges of the court of appeals to that order.

The ultimate question for our determination is whether the St. Louis court of appeals had original jurisdiction to hear and determine the case in quo warranto commenced in that court. Sanders, who was the relator in that case, claimed the office from the time intervening between the resignation of Bragg and the next general election, under and by virtue of the appointment made by the governor; and section 1964 of the Revised Statutes of 1889, is relied upon as giving the governor the right to make the appointment. Blakemore, the respondent in that case, claimed that his appointment made by the circuit judge continued until the election of Bragg's successor in office; and he founds this claim on section 1979, and certain sections of the constitution. In our opinion the sections of the statute just mentioned must determine which of the parties had a legal right to hold the office. The controversy was, however, one within that clause of the twelfth section of article 6 of the constitution of 1875, which gives to this court appellate jurisdiction from the St. Louis court of appeals in all cases "involving the title to any office under this state." It is true that by several rulings of this court the circuit clerk would not be a state officer within the meaning of the other clause of the same section, which speaks of cases where "any state officer is a party." State v. Dillon, 90 Mo. 229, 2 S. W. Rep. 417; State v. Spencer, 91 Mo. 206, 3 S. W. Rep. 410. The ruling in those cases was placed upon the ground that the words "state officer" were used in a popular sense, and included only those officers whose duties are co-extensive with the boundaries of the state; and other sections of the constitution are cited in support of the ruling, which speak of state officers and of county officers. But the language of the clause now under consideration is different. It is not unlike that of section 6, art. 14, which provides that all officers, both civil and military, "under the authority of this state," shall take the prescribed oath of office; and we have held that a deputy-constable should take that oath. State v. Dierberger, 90 Mo. 369, 2 S. W. Rep. 286. See, also, State v. Draper, 45 Mo. 355. How can it be said a clerk of the circuit court, or a sheriff, holds the title to his office under the county in which elected? If the title to the office of such a clerk is not a title to an office under this state, then it is difficult to see what meaning can be given to the words of the clause in question. The quo warranto proceeding in the court of appeals, we conclude, was one of the cases specified in section 12, art. 6, of the constitution of 1875. That section established the St. Louis court of appeals with territorial jurisdiction co-extensive with the city of St. Louis and the three named counties, and then provides: "Said court shall have power to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs, and to hear and determine the same; and shall have a superintending control over all inferior courts of record in said counties. Appeals shall lie from the decisions of the St. Louis court of appeals to the supreme court, and writs of error may issue from the supreme court to said court in the following cases only: In all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars; in cases involving the construction of the constitution of the United States, or of this state; in cases where the validity of a treaty or statute of, or authority exercised under, the United States is drawn in question; in cases involving the construction of the revenue laws of this state, or the title to any office under this state; in cases involving title to real estate; in cases where a county or other political subdivision of the state, or any state...