State v. Russell

• Decision Date: 20 June 1906
• Citation: 95 S.W. 870,197 Mo. 633
• Parties: STATE ex rel. HADLEY, Atty. Gen., v. RUSSELL.
• Court: Missouri Supreme Court

95 S.W. 870

197 Mo. 633

STATE ex rel. HADLEY, Atty. Gen., v. RUSSELL.

Supreme Court of Missouri.

June 20, 1906.

1. TOWNS — ORGANIZATION — ELECTION — PETITION — VALIDITY.

Rev St. 1889, § 8425c (Rev. St. 1899, § 10,226), relating to township organization provides that the county court, on petition of 100 legal voters of a county, shall cause to be submitted to the voters of the county the question of township organization, the ballot to be written or printed "For township organization," or "Against township organization," to be canvassed and returned in like manner as votes for such county officers. Held, that the fact that a petition for resubmission of the question of township organization contained recitals that the county had previously adopted township organization, that the revenue for county purposes was insufficient to maintain the county under such township organization, and that the highways and bridges in the county were becoming in a dilapidated condition, did not affect the validity of the proceedings, the county court having no jurisdiction to determine such matters, which would not be presumed to have influenced its action in submitting the proposition of township organization to the voters of the county.

2. SAME — ORDER — VALIDITY — FORM OF BALLOTS.

Where the order of the county court, based on such petition, embraced every essential requirement of the statute, its validity would not be affected by the fact that it contained directions as to the form of the ballot to be used, the statute prescribing such form, and the court being without authority to indicate the same to the voters.

3. SAME — ELECTION — VALIDITY — EFFECT OF PRIOR INVALID ELECTION.

Rev. St. 1889, § 8517 (Rev. St. 1899, § 10,317), provides for the resubmission of the question of township organization to the voters of any county having previously adopted such organization. Section 8425c (Rev. St. 1899. § 10,226), provides that on the petition of 100 legal voters of the county, the county court shall cause to be submitted the question of township organization. An election in 1880 in Cass county, at which the proposition of township organization was submitted, was void; the proceedings being had under a section of the statute in conflict with the Constitution. Held, that a subsequent election under proceedings complying with the provisions of said section 8425c (Rev. St. 1899, § 10,226), was not invalidated by the fact that some of the recitals in the petition presented to the county court, and the order of the court based on such petition, indicated that the petitioners, as well as the court, were proceeding on the theory that township organization had been legally adopted in 1880, and that the purpose and object of the voters was to resubmit the proposition in pursuance of the provisions of said section 8517 (Rev. St. 1899, § 10,317); and hence the acts of the petitioners and the order of the county court were to be treated in the light that no prior election submitting the proposition had ever been held.

4. SAME — STATUTORY PROVISIONS — VALIDITY.

Conceding that said Rev. St. 1899, § 10,317 (Rev. St. 1889, § 8517), providing for the resubmission of the question of township organization, was unconstitutional, it would be presumed that the petition and order of the county court had reference to the proposition as provided by said Rev. St. 1899, § 10,226 (Rev. St. 1889, § 8425c).

In Banc. Original quo warranto proceedings by the state, on relation of Herbert S. Hadley, Attorney General, against William Russell. Writ quashed, and cause dismissed.

This is an original proceeding in this court in which the aid of the court is sought to oust the respondent, William Russell, from the office of township assessor of Grand River township of Cass county, Mo., which office, it is alleged, the respondent unlawfully and willfully intruded into and usurps on the theory that township organization, under the law applicable to that subject, has been legally adopted in said Cass county, when, in fact, such township organization had never been and has not been legally adopted in said county. On the 30th day of April, 1906, a petition was filed by the Attorney General as informant against the respondent herein, William Russell, in which it was substantially charged that the respondent, William Russell, was unlawfully and willingly usurping and exercising the prerogatives and duties of township assessor of Grand River township in Cass county, Mo. That the acts of such officer were performed upon the theory that township organization had been legally adopted in said county, when, as it is alleged, township organization had never been and has not been legally adopted in said county. Then followed a prayer for the issuance of process by this court directed to said respondent to be and appear before this court at a time certain, then and there to show cause why he should not be ousted from such office, and from enjoying the privileges and emoluments thereof. Upon the filing of said petition this court issued its process directed to the respondent commanding him to be and appear before the Supreme Court of Missouri, in banc, on or before the 4th day of May, 1906, to show by what warrant or authority he claimed to hold, use, and exercise the office of township assessor of Grand River township within and for the county of Cass and state of Missouri, and show cause on or before that day why the writ of quo warranto should not issue as prayed for in the petition of the informant. This process was served upon the respondent on May 1, 1906, and on May 4, 1906, respondent filed his return to such writ. This return to the quo warranto proceedings herein substantially states: (1) That in the year 1880 a petition signed by more than 100 legal voters of Cass county, Mo., was duly presented to the county court of said county praying said court to submit to the qualified voters of said county the proposition as to whether township organization should be adopted in said county. The county court granted the prayer of said petition; then follows a statement of the submission of the proposition at the general election in 1880 and the adoption of township organization. In other words, the return in effect shows that an election was held under the law as it then existed, submitting the proposition of the adoption of township organization, and that it was adopted, and that the terms of the statute then in force were fully complied with. (2) It is shown by said return that afterwards, to wit, on the 19th day of September, A. D. 1898, a petition signed by more than 100 legal voters of said county was presented to the county court of said county in which the said court was requested to resubmit to the qualified voters of Cass county township organization at the general election in November, A. D. 1898; that the prayer of the petition of such legal voters was granted, and the proposition submitted to the qualified voters of that county, and that at said election 4,264 votes were cast; that 2,990 votes were cast for township organization and 438 votes were cast against township organization; that the votes were canvassed, and returned in like manner to the vote for state and county officers. It is stated in said return that Cass county, by reason of such election in 1898 legally adopted township organization under and by virtue of the Constitution of Missouri, and under and by virtue of article 1, c. 168, Rev. St. 1899, and also under and by virtue of the act of 1897. Then follows a statement of the election and qualification of the respondent as township clerk, ex officio township assessor of Grand River township, heretofore mentioned in the quo warranto proceedings. There is embraced in this return a copy of the petition and order of the county court respecting the election in 1898. However, we deem it unnecessary to reproduce them as due reference will be made to them during the course of the opinion. There are also, by stipulation, exhibits on file which will also be given proper attention upon the consideration of the legal questions involved. The return of respondent closes with a general denial of each and every allegation and statement in the information, which is not admitted by the return, and prays to be discharged with his costs. Upon this state of the pleadings the informant files motion for judgment on the record and pleadings, which motion, omitting formal parts, is as follows: "Now comes the informant, Herbert S. Hadley, Attorney General, and moves the court to enter a judgment of ouster herein against respondent, for the following reason: Because, the return of said respondent shows upon its face that township organization has never been legally adopted in Cass county, Mo.; and that said respondent is now a usurper in the alleged office of township assessor within and for Grand River township in said county, and has no legal authority for holding said alleged office." On May 30th this proceeding was submitted to the court upon the petition, return, and motion for judgment. On June 1, 1906, this court announced its conclusion upon the record before it, and caused to be duly entered of record an order quashing the writ of quo warranto issued on April 30, 1906, and further ordering that this cause be dismissed. This constitutes the record in this proceeding, and it only remains for this court to assign in the way of a written opinion the reasons for the conclusions reached heretofore indicated.

The Attorney General, John Kennish, John A. Davis, and R. T. Railey, for informant. Whitsitt & Jarrott and W. D. & G. M. Summers, for respondent.

FOX, J. (after stating the facts).

The record in this cause presents but one crucial question; that is: Was township organization, as provided for by chapter 168, Rev. St. 1899, as submitted, legally adopted in Cass county, Mo., at the general election held in that county in 1898? A correct answer to that question...