The State Ex Inf. Crow v. Towns

• Citation: 54 S.W. 552,153 Mo. 91
• Parties: THE STATE ex inf. CROW, ATTORNEY-GENERAL, v. TOWNS
• Decision Date: 19 December 1899
• Court: United States State Supreme Court of Missouri

54 S.W. 552

153 Mo. 91

THE STATE ex inf. CROW, ATTORNEY-GENERAL, v. TOWNS

Supreme Court of Missouri

December 19, 1899

Writ of ouster awarded.

Edward C. Crow, Attorney-General, Sallee & Crossan and J. W. Peery for relator.

(1) The contract entered into between Owens, Hoffman and Towns was a corrupt bargain, and constitutes bribery within the meaning of that term as used in the election laws. R. S. 1889, sec 3722; Laws 1893, p. 157, secs. 1, 2, 3 and 10; 10 Am. and Eng. Ency. of Law (2 Ed.), pp. 783 to 794; 4 Am. and Eng Ency. of Law (2 Ed.), pp. 911, 912; State ex rel. v Collier, 72 Mo. 13; Harding v. Stokes, 1 M. & W. 354; Chatham's case, 2 P. R. & B. El. Cases 39; German v. Rothery, 20 Can. S.Ct. 376; Nicholls v. Mudget, 32 Vt. 546; U. S. v. Worrall, 2 Dall. 384; Mason v. State, 58 Ohio St. 30; State v. Good, 15 Ohio, Cir. Ct. Rep. 386. (2) Nor does the alleged fact that the parties to the corrupt contract mutually agreed to destroy the written evidence of it; nor even to rescind it; nor that Owens and Towns agreed to modify it by substituting Owens for appointment as deputy county clerk instead of Hoffman, affect the question of bribery, or relieve the transaction from the taint of corruption. 10 Am. and Eng. Ency. of Law (2 Ed.), 783; R. S. 1889, sec. 3722; Laws 1893, p. 158, secs. 2 and 3. (3) The contract upon its face shows that it refers to both the nominating and general elections. It is as follows: "This agreement between the parties hereto witnesseth: That in the event of the nomination and election of the undersigned W. F. Towns to the office of county clerk of this (Harrison Co., Mo.) the said Towns hereby agrees to appoint the said Hoffman as his deputy, and to allow him $ 1,500 per year deputy salary for such time as said Towns may hold said office, whether for one or two terms." (4) The primary election held by the Republican party of Harrison county on April 30, 1898, was "an election under the laws of this State." R. S 1889, secs. 4795 to 4798; Keating v. Hyde, 23 Mo.App. 560; McCrary on Elections, sec. 192; Com. v. Bell, 145 Pa. St. 374; Leonard v. Com., 112 Pa.St.607. (5) The record conclusively shows that respondent knew of the payment to witnesses Wm. Weese and Maurice Noah, and there is no evidence that he raised any objections thereto; or that he made any objection to all of the numerous bills which he knew were being incurred in his behalf by his manager. (a) "It is impossible to lay down any precise rule as to what will or will not constitute an agency, for, as it has been truly said, the result of all the cases on the subject, and the principle to which resort must ever be had, is that the question is one of fact and must be decided in every case according to the particular circumstances attendant upon it. But this much is settled: That the doctrine as to the proof of agency by the acts and conduct of the person claiming to be an agent is carried further in election matters than in civil cases." 10 Am. and Eng. Ency. of Law (2 Ed.), p. 795; Bushby on Elections, 120; Colter v. Glenn, 17 Can. S. C. R. 170; State v. Good, 15 Ohio Cir. Ct. Rep. 386. (b) It makes no difference whether a candidate pays any money directly, and out of his own pocket, or whether it was paid for him and for his benefit by his friends and agents; if the amount thus paid out exceeds the amount allowed by law as the limit of his expenses, his election is void. State v. Good, 15 Ohio. Cir. Ct. Rep. 386. (6) The Act of March 31, 1893 (Laws 1893, p. 157), is not in any of its provisions obnoxious to the Constitution. The constitutionality of a similar act has been affirmed by the Supreme Court of Ohio. Mason v. State, 58 Ohio St. 30. (a) The act is not unconstitutional because it does not provide for a trial by jury. State ex rel. v. Vail, 53 Mo. 107; State ex rel. v. Lupton, 64 Mo. 415; Mason v. State, supra. (b) The act is not unconstitutional because it deprives the officer guilty of bribery of his office. 10 Am. and Eng. Ency. of Law (2 Ed.), p. 781; State ex rel. v. Collier, 72 Mo. 13; McCrary on Elections (1 Ed.), sec. 432. (c) It is not unconstitutional because it gives the office to the person receiving the next highest number of votes. This provision amounts to a statutory declaration that the votes cast for the candidate guilty of bribery shall not be counted. All of the cases concede that if there is such a statutory provision, the person receiving the next highest number of votes is entitled to the office. 10 Am. and Eng. Ency. of Law (2 Ed.), p. 758; State ex rel. v. Boal, 46 Mo. 528; State ex rel. v. Walsh, 7 Mo.App. 142; State ex rel. v. Vail, 53 Mo. 97. In any event, could the respondent in this proceeding be heard to urge that the provision for awarding the office to the person receiving the next highest number of votes is unconstitutional when he would not be injured by such a judgment? "Only those whose rights would be prejudiced by the enforcement of an unconstitutional act will be heard to question its validity." 6 Am. and Eng. Ency. of Law (2 Ed.), p. 1090; Newman v. People, 23 Colo. 300; Railroad v. Montgomery, 49 N.E. 582; Kansas City v. Railroad, 53 P. 468; State v. McNulty, 73 N.W. 87; Smith v. Inge, 80 Ala. 283; Barkley v. Donnelly, 112 Mo. 561. (7) The objection that this court has not jurisdiction of the subject-matter of the action can not be sustained. "The jurisdiction of this court on informations in the nature of quo warranto, whether filed on the relation of some private person (by leave of court) or by the attorney-general ex officio, must be regarded as settled. The cases hereinafter cited on the second point are all cases in which the jurisdiction was exercised without question, and the cases in which the question has been raised have been determined in the same way." State ex rel. v. Vail, 53 Mo. 107; State ex rel. v. McSpaden, 137 Mo. 628.

Wanamaker & Barlow, J. C. Wilson and Warner, Dean & McLeod for respondent.

(1) This is purely a special proceeding under the act of 1893. Under this act the Attorney-General has no right or power, ex officio, to institute general proceedings in quo warranto. The defeated candidate must take the initiative by making an application to him. The applicant is required to specify the charge, and the Attorney-General must bring the action to have the office declared vacant on account of the violation embraced in the charge. He is limited to the charges specified by the applicant, and the office can only be declared vacant on account of said violation. State ex inf. v. Bland, 144 Mo. 534. (2) The act is penal in its every nature and fibre. It should be strictly construed. Nothing should be regarded as included in it which is not clearly and intelligently described in its very words. State ex inf. v. Bland, 144 Mo. 534; Rozelle v. Harmon, 103 Mo. 339; Connell v. Western Union Tel. Co., 108 Mo. 459; State ex rel. v. Smith, 114 Mo. 180; Dudley v. Western Union Tel. Co., 54 Mo. 381. (3) The informant in his brief submits the proposition for consideration that Owens was the general agent of Towns in his campaign, both before and after the primary. Such a proposition is not borne out by record. (a) A principal is not criminally responsible for the acts of his agent, done in his absence and without his knowledge or consent. State v. McGrath, 73 Mo. 181; State v. McCannee, 110 Mo. 399; State v. James, 63 Mo. 571. (b) A candidate is not responsible for the corrupt practices committed by his agents, unless such illegal acts have been committed with his knowedge and consent, expressed or implied. 10 Am. and Eng. Ency. of Law (2 Ed.) 794; Flint v. Fitzsimmons, Hodgins Election Cases 139; Stewart v. McDonald, Ib. 625; Rykert v. Neelon, Ib. 391; Rey v. Dewar, 26 Ont. Rep. 512; Remick v. Cameron, 8 U. C. L. J., N. S. 113. (4) This is not primarily a proceeding between individuals to try the right as between them to the possession of an office. It is an inquiry by the State of one of her citizens by what right he "holds or executes an office." State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. Norton, 64 Mo. 415; State ex rel. v. Vail, 53 Mo. 97; Vail v. Dinning, 44 Mo. 210. This court then has not jurisdiction in this case. (a) It is not quo warranto in the meaning of the Constitution. State ex inf. v. Bland, 144 Mo. 534. (b) The court can not assume jurisdiction nor hear and determine cases in any other manner than that provided for in the Constitution. The General Assembly can confer original jurisdiction only in cases specified in the Constitution, in all other case its jurisdiction must be appellate. Foster v. State, 41 Mo. 61; Vail v. Dinning, 44 Mo. 210; State v. Flentge, 49 Mo. 483; State ex rel. v. Mason, 77 Mo. 189.

MARSHALL, J. Gantt, C. J., and Brace, Burgess, JJ., concur; Valliant, J., concurs in a separate opinion; Robinson, J., dissents as to the finding of facts; Sherwood, J., absent.

OPINION

In Banc.

Quo Warranto.

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 (Laws 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 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...