State v. Towns

• Decision Date: 05 December 1899
• Citation: 54 S.W. 552,153 Mo. 91
• Parties: STATE ex rel. CROW, Atty. Gen., v. TOWNS.
• Court: Missouri Supreme Court

54 S.W. 552

153 Mo. 91

STATE ex rel. CROW, Atty. Gen., v. TOWNS.

Supreme Court of Missouri.

December 5, 1899.

ELECTIONS — BRIBERY — STATUTES — CONSTITUTIONAL LAW — TRIAL BY JURY — DUE PROCESS OF LAW — PROCEEDINGS — QUO WARRANTO — CLERKS OF COURTS — COURTS — JURISDICTION.

1. Acts 1893. p. 157, § 10, prohibiting bribery or unfair means in elections by any "promise or influence," refers to the words "promise, procurement, or agreement," in section 1, and hence an agreement to appoint a voter a deputy, if a candidate was elected, in consideration of his services, is within the prohibition of the statute.

2. Acts 1893, p. 157, prohibiting bribery at elections, and authorizing ouster of a successful candidate for violation thereof, is not in violation of Const. art. 2, § 28, guarantying a trial by jury, since the right to trial by jury in such cases did not exist at the time of the adoption of the constitution.

3. Acts 1893, p. 157, prohibiting election bribery, and providing proceedings to oust the successful candidate for violation thereof, is not in violation of Const. art. 2, § 30, declaring that no person shall be deprived of life, liberty, or property without due process of law, since, under the act, the person accused is entitled to a judicial trial.

4. Acts 1893, p. 157, providing for proceedings to oust the successful candidate for bribery, etc., is not in violation, but is in furtherance, of Const. art. 8, §§ 1-3, relating to the time for holding elections, prescribing the qualifications of electors, and regulating the conducting and contesting of elections.

5. Const. art. 3, forbidding interference between the three departments of government, has no application to Acts 1893, p. 157, providing for the ouster from office of those guilty of bribery or unfair means in securing office.

6. Acts 1893, p. 157, providing that on application by the candidate receiving the next highest number of votes, charging bribery by the successful candidate, the attorney general shall institute proceedings to oust him, does not specifically attempt to confer jurisdiction on the supreme court, but the writ being extraordinary and remedial, and intended to redress wrongs which will not brook delay, the supreme court has authority to issue it under Const. art. 6, § 3, empowering it to issue original remedial writs.

7. Acts 1893, p. 157, authorizes proceedings to oust officers guilty of bribery in securing their election, and declares that the unsuccessful candidate may be made party plaintiff, and have a judgment for the office, unless the officer accused, on appropriate pleadings, shows that such candidate is also guilty of bribery. Held that, though a defeated candidate was entitled to be made a party to proceedings to oust the successful candidate under such act, he was not entitled to raise the issue of his qualifications, since such issue should be raised by defendant only.

8. Acts 1893, p. 157, § 15, providing that on ouster of an officer under such act for bribery in election the next highest candidate may have judgment for the office, is, as to the clerk of county court, in conflict with Const. art. 6, § 39, providing that such office shall be elective.

9. Acts 1893, p. 157, § 15, providing that on ouster of an officer under such act for bribery in election the next highest candidate may have judgment for the office, is an attempt to have the supreme court designate a person to fill the office who has neither been elected nor appointed thereto, and is in violation of Const. art. 5, § 11, providing that the governor, unless otherwise provided by law, shall appoint persons to fill vacancies occurring in offices.

Robinson, J., dissenting in part.

In banc. Proceeding by the state, on the information of Edward C. Crow, attorney general, against William P. Towns, county clerk, for a writ to oust defendant from office. Writ granted.

Edward C. Crow, Atty. Gen., Sallee & Crossan, and J. W. Peery, for relator. Wanamaker, Barlow & Barlow, J. C. Wilson, and Warner, Dean & McLeod, for respondent.

MARSHALL, J.

This is an original proceeding, instituted by the attorney general on the written application and specific charges of Charles A. Tull, the defeated candidate, under the provisions of the act of 1893 (Acts 1893, p. 157) to prevent corrupt practices in elections, to oust defendant from the office of clerk of the county court of Harrison county for violations at and prior to the general election of 1898 of the provisions of that act in five respects, to wit: First, failure to file a sworn statement of his expenditures and promises; second, exceeding the limit of expenditure allowed by that act; third, entering into an agreement first with an opposing candidate for the nomination (one Hoffman) to appoint him deputy clerk if he was nominated and elected, provided Hoffman remained in the field, and afterwards, when the fact of such agreement became known, of making an agreement with one Owens, to appoint him his deputy if he would work for his (defendant's) nomination and election; fourth, making an agreement with one Roberts to appoint him deputy clerk upon similar conditions; and, fifth, making a similar agreement with one Morgan. The answer of respondent contravenes these charges, and avers that the act of 1893 is unconstitutional, and specially sets out that it violates sections 1, 2, 9, 28, and 30 of article 2, and sections 1, 2, and 3 of article 8, of the constitution. The attorney general demurred specially to the portion of the answer setting up the unconstitutionality of the act of 1893, and replied to the remainder of the answer. The application of Tull to the attorney general requested that he be made a party to the action under the provisions of section 15 of the act, and that defendant be ousted from and he be awarded the office. Tull was not made a party as requested, but he has, since the taking of the testimony, filed a motion to be made a party, and asking leave to have the petition amended so as to specifically aver his qualifications for the office. The defendant objects to the amendment, because, no such issue having been tendered by the petition, no opportunity has been afforded defendant to controvert or disprove the averments as to Tull's qualifications, as section 15 of the act permits, in order to prevent an award of the office to Tull. On the 2d of June, 1899, the court appointed Hon. Charles H. S. Goodman special commissioner to take the testimony, and make a finding and report thereon, reserving, however, the power to review the rulings of the commissioner at or before the final hearing of the cause "upon exceptions by either party." The special commissioner heard the testimony, and made a finding and report, in which he finds for the defendant upon all of the charges except the third, and as to that he finds that it is true. No exceptions have been filed by either party, although relator argues here against the finding of the commissioner as to the second charge; but under the terms of the order appointing the commissioner requiring exceptions to be filed this contention will not now be considered, and the decision will be confined wholly to the law applicable to the finding of facts by the commissioner as to the third charge, treating that finding as the verdict of a jury in an action at law. The commissioner's finding of facts as to the third charge is as follows: "Upon mature deliberation, I submit the following as my finding of the facts established by the evidence: The primary election of the Republican party in the county of Harrison for the nomination of the several county officers to be voted for at the general election in November, 1898, was held April 30, 1898. Before said primary election were the following candidates for the office of county clerk: William F. Towns, of Adams township; James M. Kinkade, of White Oak township; F. J. Hesseltine, of Cypress township; Wilson C. Baldwin, of Dallas township; Leslie P. Riley, of Clay township; H. J. Skinner, B. L. Fuller, and W. L. Hoffman, of Bethany township; and John T. Courter, of ____ township. George L. Owens, who appeared as a witness on behalf of the informant, was brother-in-law to William L. Hoffman. Owens was mayor of the city of Bethany, was engaged in the farming implement business, had been school commissioner for the county of Harrison, was extensively acquainted throughout the county, and was regarded as one of the most influential and adroit political managers in the Republican party in said county. Owens and Towns were raised in the same part of the county, had been acquaintances from boyhood, and warm feelings of friendship existed between them. Early in January, 1898, Towns approached Owens, informed him that he was about to become a candidate for the office of county clerk, and requested Owens' aid and influence. Owens did not give him any definite assurance of support, but gave him to understand that he was favorable to his condidacy. Early in the month of April, 1898, Owens became convinced that Hoffman had no chance of securing the nomination, as he had recently filled the office of county treasurer for two terms, and that Hoffman would have to content himself with a deputyship under the successful candidate, if he secured anything. Owens at that time believed that the race for the nomination lay between L. P. Riley, who lived in the north part of the county, and Towns, who lived in the south part. Prior to his election to the office of county treasurer, Hoffman had lived at Eagleville, in the north part of the county, and, as there were two other candidates from Bethany, his principal support must come from the north half of the county. Owens conceived the plan of effecting a combination between Hoffman and Towns, by which the latter, if nominated, — a nomination being considered equivalent to an election, — should appoint Hoffman his deputy. He first approached Hoffman on the subject, and, finding him...