State v. Toliver

• Decision Date: 08 October 1926
• Docket Number: No. 27337.,27337.
• Citation: 287 S.W. 312
• Parties: STATE, on Inf. GENTRY, Atty. Gen., v. TOLIVER.
• Court: Missouri Supreme Court

287 S.W. 312

STATE, on Inf. GENTRY, Atty. Gen., v. TOLIVER.

No. 27337.

Supreme Court of Missouri, in Banc.

October 8, 1926.

Original proceeding by quo warranto, by the State, on the information of North T. Gentry, Attorney General, against L. R. Tollver. Proceeding dismissed.

North T. Gentry, Atty. Gen., and Leslie J. Lyons, Co. Counselor, and Henry M. Griffith, Asst. Co. Counselor, both of Kansas City, for relator.

J. Francis O'Sullivan, Maurice J. O'Sullivan, George Charno, and Warren A. Drummond, all of Kansas City, for respondent.

BLAIR, C. J.

This is an original proceeding by quo warranto to test the right of respondent to hold the office of justice of the peace of Kaw township, in Jackson county. Our preliminary writ was ordered to be issued, but respondent waived its formal issuance, entered his appearance, and filed his return to the petition as and for the writ. Relator filed his answer to such return, and respondent moved for judgment upon the pleadings.

The information charges that respondent, without legal authority or right, and since December 29, 1924, usurped, illegally held, used, intruded upon, and exercised the office of justice of the peace of Kaw township in Jackson county and continues to do so, and illegally claims, enjoys, and receives rights, fees, and emoluments appertaining to said office. The prayer of the petition is for an order upon respondent to show by what authority he does the things alleged and for relief relator prays that it be adjudged that no such office as claimed by respondent in fact exists.

It will not be necessary to set out the contents of respondent's return. Relator's reply, in substance, admits that the purported records set forth in respondent's answer, upon their face, are sufficient to authorize respondent to hold said office. It stands admitted that respondent possesses all of the statutory qualifications to hold the office. It will only be necessary to detail facts which have a direct bearing upon the legal questions involved.

Section 2689, R. S. 1919, provides that, whenever a petition shall be presented to the county court, signed by twelve or more qualified voters of any township, setting forth that they live more than five miles from the nearest justice of the peace in their township, the county court shall have power to appoint an additional justice of the peace for such township, and the justice of the peace so appointed shall live in the immediate neighborhood of the petitioners, and at least five miles from any other justice of the peace of such township. Not more than two such additional justices of the peace shall be appointed for any township. Respondent was appointed as an additional justice of the peace under said section, and it is the validity of such appointment which is to be determined in this proceeding.

It appears from the allegations of the reply that the county court had previously made orders appointing two additional justices of the peace under the authority of said section 2689. It is contended that the record proof in support of such allegation demonstrates that said county court had no power to make the appointment of respondent at the time the purported order appointing him was made. On the other hand, it is the contention of respondent that the county court acted judicially in determining the facts upon which its right and power to appoint respondent depended, including its necessary finding that two additional justices of the peace had not already been appointed, had qualified, and were acting as such, and that its finding thereon constituted a judgment which cannot be attacked collaterally, and that this proceeding is a collateral attack upon such judgment, and therefore that this court cannot inquire into the facts in respect to such alleged prior appointments of additional justices of the peace.

The first question logically presented is whether the county court acted judicially in determining the facts necessary to give it power or jurisdiction to make the appointment. The county court cannot make the appointment unless the statutory petition is first filed; but it is manifest that it is not required to make an appointment merely because the statutory petition has been presented to it. Such petition merely gives the county court the power to make the appointment, if it finds it has not already exhausted its power in that respect and it concludes to exercise such power. The county court certainly is not bound by the statement in such petition that the signers live more than five miles from the nearest justice of the peace, and said court may ascertain the truth of such statement for itself. The fact that the county court has the power to make the appointment necessarily implies the power to refuse to make it, even if all of the jurisdictional facts are clearly shown to exist. For example, the county court might conclude that there was no existing necessity for such appointment, notwithstanding the fact that there was no justice of the peace within more than five miles of the place of residence of the twelve or more petitioners, and two additional justices of the peace had not already been appointed for said township.

The determination of the sufficiency of the petition, the truth of the facts therein stated, and the business necessity for such appointment, and whether two additional justices of the peace had already been appointed, were legally qualified, and were acting in that capacity at the time, were questions to be determined by the county court in reaching its conclusion that an additional justice of the peace, under the authority of said section, could he and should be appointed. We therefore think that the county court acted judicially in determining that it had jurisdiction to make the appointment.

Respondent cites the case of State ex rel. Rice v. Simmons, 35 Mo. App. 374. We think that case strongly supports his contention. It was a proceeding by quo warranto to test the right of one Simmons to hold the office of justice of the peace in Sarcoxie township, in Jasper county. Laws of 1881, p. 154, after providing for the election of two justices of the peace in each township and for an additional justice of the peace in towns or cities of two thousand or more inhabitants, provided that, "in towns of one hundred inhabitants or more, which may contain any medical spring or springs, the water of which may be used for its curative or supposed curative effects, or which may be situated within five hundred yards of any such spring, shall be entitled to a justice of the peace, in addition to the number which may be allowed by law to the township in which said town may be situated, who shall be commissioned by the county court," etc., and provided for his appointment by the county court.

The circuit court of Jasper county ousted Simmons from said office, and, upon appeal to the Kansas City Court of Appeals, such judgment was reversed. In passing upon the effect of the finding by the circuit court that the facts did not authorize the county court to appoint Simmons, Judge Ellison said:

"We are furthermore of the opinion that the circuit court should not have entered upon an inquiry as to whether there was a medical spring within 500 yards of the town of Sarcoxie. The statute has designated the county court as the tribunal in which such matter is to be determined; its action in that respect is judicial and cannot be disturbed, where its record discloses that it has determined, in a legal manner, the matters committed to its jurisdiction. The effect of the action of the circuit court below is that it has heard the testimony and tried, de novo, the matters determined by the county court, and which the latter court, under the statute, alone has power to determine; such determination, too, being final. State ex rel. v. Goodwin 5 S. W. Rep. (Texas) 678; State ex rel. v. Weatherby. 45 Mo. 17; State ex rel. v. Lingo, 26 Mo. 496; Scott v. Crews, 72 Mo. 261."

In State ex rel. Read v. Weatherby, 45 Mo. 17, cited by Judge Ellison in the Simmons Case, the proceeding was by quo warranto against the trustees of the town of Shelbina. Relator there contended that the order of the county court incorporating said town was procured by fraud. There is no such allegation in the case at bar. Judge Currier said:

"It was not necessary, in alleging the existence of the corporation, to set out the facts preliminary to the grant of the order, and upon which the order was founded. [Stoddard v. Onondaga Annual Conference of the Methodist Protestant Church], 12 Barb. [N. Y.] 573. The order, and not the antecedent facts, brought the corporation into being. The presence of these facts is to be presumed from the fact of the order until the order itself is attacked and overthrown. The court had jurisdiction of the subject, and the propriety and regularity of its action is to be presumed until the contrary appears. Its finding and judgment in the premises, until set aside, must be deemed conclusive of the main fact here sought to be drawn in issue. This principle is applicable to the acts and judgments of all courts of record having jurisdiction of the subject-matter of such acts or judgment."

In State ex rel. Brison v. Lingo, 26 Mo. 496, also cited by Judge Ellison in the Simmons Case, the mayor of the city of St. Louis had suspended Lingo from the office of superintendent of the workhouse, to which office he had been elected by the people. His term had not expired. The mayor appointed Brison in the place of Lingo, and Lingo refused to give up the office. It was held that the circuit court had jurisdiction of the quo warrant to proceeding, and that the ordinance, conformably to the charter, gave the mayor authority to suspend Lingo, pending the hearing of the charges against him before the city council. In affirming the action of the circuit court in ousting Lingo, Judge Richardson said:

"The ordinance made under the authority of the...