The State ex inf. North Todd Gentry v. Toliver

• Citation: 287 S.W. 312,315 Mo. 737
• Decision Date: 08 October 1926
• Docket Number: 27337
• Parties: The State ex inf. North Todd Gentry, Attorney-General, v. L. R. Toliver
• Court: Missouri Supreme Court

287 S.W. 312

315 Mo. 737

The State ex inf. North Todd Gentry, Attorney-General, v. L. R. Toliver

No. 27337

Supreme Court of Missouri

October 8, 1926

Dismissed.

North T. Gentry, Attorney-General, and Leslie J Lyons and Henry M. Griffith for relator.

(1) An information in the nature of quo warranto challenging the legality of respondent's title to office is a direct proceeding and not a collateral attack upon the judgment and order of the county court appointing respondent. A proceeding in the nature of quo warranto is in its very essence, a direct proceeding. State ex rel. v Fleming, 147 Mo. 1; State ex rel. v. Weatherby, 45 Mo. 20; State ex rel. v. Dougan, 305 Mo. 383; State ex rel. v. Hamilton, 240 S.W. 448. In this State where there is no statutory provision for appeal or review, quo warranto is the exclusive remedy to try title to office. Equity does not have jurisdiction. The State is the only party involved. No one is claiming the particular office claimed by respondent. The State, in its sovereign capacity, has an interest in ascertaining that all of its officers, particularly those connected with the judiciary have valid title to their offices to the end that their judgments and decrees may be valid, binding, and respected by the citizens. (2) The county court in making appointments of county employees, officers and agents, acts ministerially and not judicially. The order of the county court appointing respondent as an additional justice of the peace, is not a judgment. The order is not of the kind and character to be dignified as a judgment of the court. The county court acted ministerially and not judicially. (3) An order made in the discharge of a ministerial duty may be rescinded, cancelled, annulled, or otherwise modified and dealt with at the pleasure of the county court in the absence, of course, of a statutory provision to the contrary. County of Marion v. Phillips, 45 Mo. 75; 15 C. J. 471. The selection and appointment of the officers of the government is not a judicial function. Courts are not created for that purpose. Primarily, courts determine controversies between litigants upon issues framed according to said fixed rules and principles. The selection and appointment of officers does not bring into play that function. State ex rel. Truager v. Nash, 66 Ohio St. 612; Ry. Co. v. St. Louis, 92 Mo. 160. (4) The appointment of Cairns and Pollock exhausted the power and authority given the county court to appoint additional justices of the peace. Sec. 2689, R. S. 1919. (5) The failure of Cairns and Pollock to file bond as required by Section 2927, did not nullify their appointments.

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

(1) The county court is given jurisdiction to determine the necessity for the appointment of, and to appoint additional justices of the peace. Sec. 2689, R. S. 1919. Jurisdiction of the subject-matter is the power to determine matters of the general class to which the proceedings in question belong. State v. Smith, 104 Mo. 419; Hope v. Blair, 105 Mo. 85; State v. Neville, 110 Mo. 345; Musick v. Railroad, 114 Mo. 309; Leonard v. Sparks, 117 Mo. 103; Burke v. Kansas City, 118 Mo. 309; Ekerle v. Wood, 95 Mo.App. 378. (2) The determination of the county court under the statute as to the necessity for, and jurisdiction to appoint additional justices of the peace, is a judicial question, and as such is not subject to collateral attack. State ex rel. v. Simmons, 35 Mo.App. 381; State ex rel. v. Powles, 136 Mo. 376; State v. Schenckel, 129 Mo.App. 224; State ex rel. v. Weatherby, 45 Mo. 20; 15 C. J. 471, sec. 124; 34 C. J. 875, sec. 1286; and page 878, sec. 1287; and page 874, sec. 1284; State ex rel. v. Fleming, 158 Mo. 558; State ex rel. v. Beurman, 186 Mo.App. 691; State ex rel. v. Drain. Dist., 290 Mo. 33; State ex inf. v. Dougan, 305 Mo. 383; State ex inf. v. Drain. Dist., 292 Mo. 696. (3) This attack on the order appointing respondent a justice of the peace is a collateral attack. Lieber v. Lieber, 239 Mo. 1. (4) The law presumes the validity and not the invalidity of the order of the county court appointing respondent. 15 C. J. 466, sec. 118, and page 468, sec. 122; State ex rel. v. Wilson, 216 Mo. 215; Petet v. McClanahan, 297 Mo. 677; Lingo v. Burford, 112 Mo. 149; 34 C. J. 923, sec. 1331; State v. Fulton, 152 Mo.App. 345; Viehman v. Viehman, 298 Mo. 356. (5) The power of the county court to decide includes the power to decide erroneously. State v. Wear, 145 Mo. 162; Schubach v. McDonald, 179 Mo. 163. (6) The place where respondent holds his court is immaterial so long as it is in the township. Secs. 2689, 2946, R. S. 1919. (7) The county court made no error in appointing respondent a justice of the peace. The other alleged appointees never qualified for their offices because they failed to file the bond required of them. Sec. 2927, R. S. 1919.

Blair, C. J. All concur, except Graves. J., absent; Ragland, J., not sitting.

OPINION

BLAIR

This is an original proceeding by quo war anto 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, Revised Statutes 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...