The State ex rel. Craig v. Woodson

• Decision Date: 21 May 1895
• Parties: The State ex rel. Craig v. Woodson, Judge, et al
• Court: Missouri Supreme Court

31 S.W. 105

128 Mo. 497

The State ex rel. Craig v. Woodson, Judge, et al

Supreme Court of Missouri

May 21, 1895

Writ denied.

Randolph & Imel and Brown & Pratt for relator.

(1) It does not seem to be questioned that prohibition is the proper remedy to prevent the circuit court from proceeding to make orders for the enforcement of its judgment in a case which has been transferred to this court by appeal which operates as a supersedeas, or suspension or vacation of the judgment. State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dillon, 98 Mo. 90. (2) Under the statutes of this state, the appeal of the relator in the election contest operated as a supersedeas of the judgment in that case, or suspended its operation until the decision of the case in this court. R. S. 1889, secs. 4707, 4744. (3) The appeal is simply a continuation of the original proceeding which is pending and undecided from the time of its commencement until the final decision. Macklin v. Allenberg, 100 Mo 337. Both the legislature and supreme court of this state concur in the proposition that in every case in which an appeal is allowed by law, it operates as a supersedeas unless otherwise expressly provided by law. Appeals are allowed from the probate to the circuit court (R. S. 1889, sec. 285), and no provision has been made for a supersedeas, yet the appeal is recognized as having that effect. R. S. 1889, sec. 290. Appeals from the county court operate as a supersedeas although the statute is silent upon that subject. R. S. 1889 secs. 3434, 3443; State ex rel. v. Lewis, 76 Mo 370; Hudson v. Smith, 9 Wis. 116; Helm v. Boone, 6 J. J. Marsh, 351; Wade v. Society, 4 S. & M. 671; Yeaton v. United States, 5 Cranch, 281. The right to an elective office, as every one will admit, results from the legally expressed choice of a majority of the electors, but how this choice is to be legally expressed and ascertained is a matter of legislative discretion and determination. If the legislature should see fit to do so, unless restrained by some constitutional provision, it may make the declared result by the officer by whom the election is conducted final and conclusive upon all parties. Williamson v. Lane, 52 Tex. 335. (4) The history of legislation shows conclusively that it is founded in the principles contended for here, and is absolutely conclusive in favor of the position we have taken. Boggs v. Brooks, 45 Mo. 232; Laws, 1867, p. 144; R. S. 1879, sec. 5560, continued in revision of 1889. (5) The circuit court can not place Nash in possession of the office contrary to the provisions of section 1966, Revised Statutes, 1889. (6) At common law, both an appeal and writ of error suspended the judgment or decree as a matter of course. State ex rel. v. Lewis, 76 Mo. 370; Hudson v. Smith, 9 Wis. 116; Helm v. Boone, 6 J. J. Marsh, 351; Wade v. Society, 4 Smedes & M. 671; Railroad v. Atkison, 17 Mo.App. 494; State ex rel. v. Vogel, 6 Mo.App. 528. And where the appeal is given by statutes, the effect is the same unless the legislature sees fit to make positive provision to the contrary. State ex rel. v. Lewis, supra; Hudson v. Smith, supra. (7) Section 3160 of the Revised Statutes of 1879 expressly provides that "the provisions of the revised statutes, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws, and not as new enactments." It is not necessary that, to bring it within this rule, the provision of the revision should be in the same words as that of the prior law. It is sufficient if it be "substantially" the same. Dart v. Bagley, 110 Mo. 42. This is in accordance with a principle of law so old and well settled that it can not now be questioned. "Where the law, antecedently to a revision, was settled, either by clear expression of statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law unless such phraseology evidently purports an intention in the legislature to work a change." Taylor v. Delaney, 2 Cai. Cas. 149; Yate's Case, 4 Johns. (N. Y.) 317; Ennis v. Crump, 6 Tex. 34; Ash v. Ash, 9 Ohio St. 383; Conger v. Barker's Adm'r, 11 Ohio St. 1; In the matter of Brown, 21 Wend. 316; Theriat v. Hart, 2 Hill, 380; Goodell v. Jackson, 20 Johns. (N. Y.) 693; Myer v. Car Co., 102 U.S. 1, 11.

B. R. Vineyard for respondent Woodson.

(1) "The writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists, and not to its erroneous or irregular exercise. It can not issue where other adequate remedies exist, nor be made to perform or usurp the functions of an appeal." State v. Klein, 116 Mo. 268; State ex rel. v. Court of Appeals, 99 Mo. 216; State ex rel. v. Burckhartt, 87 Mo. 533. (2) It may be stated of appeals generally, where the appellate court does not try the case de novo, but simply sits in judgment upon the errors which may have occurred at the trial in the lower court, the judgment of the trial court is binding upon the parties, as to every question decided, until annulled or reversed upon the final disposition of the appeal. In certain cases, where the statute so provides, the giving of an appeal bond will prevent the issuance of an execution, but, even in those cases, the judgment itself is in no way affected by the appeal. Freeman on Judgments, sec. 328; Railroad v. Atkison, 17 Mo.App. 484; Banks v. Wheeler, 28 Conn. 441; Rogers v. Hatch, 8 Nev. 39; Nill v. Comparet, 16 Ind. 107. And this court, in contested election cases, can only exercise appellate jurisdiction, and in doing so can not try the case de novo. Vail v. Dinning, 44 Mo. 210. (3) The judgment of a court of competent jurisdiction ousting an officer from the official position held by him is self-enforcing. The officer against whom the judgment is rendered is, from the date of its rendition, by virtue of the judgment itself, stripped of every official prerogative and stands from that time forth simply as a private citizen. No execution or process is needed for the enforcement of the judgment, so far as the divestiture of the office from the incumbent and the investiture of the contestant with the right thereto, is concerned; it is self-executing. Welch v. Cook, 7 How. Pr. 282; People v. Conover, 6 Abb. Pr. 220; McVeaney v. Mayor, 80 N.Y. 185; Walls v. Palmer, 64 Ind. 493; McVeaney v. Mayor, 59 How. Pr. 115; Allen v. Robinson, 17 Minn. 113; People v. Head, 25 Ill. 325; Jayne v. Drorbaugh, 63 Iowa 711; Fulgham v. Johnson, 40 Ga. 164; People v. Stephenson, 98 Mich. 218; State v. Meeker, 19 Neb. 444. (4) And the giving of a bond on an appeal from a judgment of ouster, in a contested election case, will not operate to keep the unsuccessful contestee in office, during the pendency of the appeal. Allen v. Robinson, 17 Minn. 113; Jayne v. Drorbaugh, 63 Iowa 711; People v. Head, 25 Ill. 325; Fulgham v. Johnson, 40 Ga. 164; People v. Stephenson, 98 Mich. 218; State v. Meeker, 19 Neb. 444. (5) Certainly a judgment of ouster from office is as much self-operating as a decree of injunction. And yet, on appeal from an injunction, where the usual statutory appeal bond had been given, this court, in denying a writ of prohibition, says: "A stay of proceedings, from its nature, operates only on orders and judgments commanding some act to be done, and does not reach injunctions." State ex rel. v. Dillon, 96 Mo. 61; Genet v. President, 113 N.Y. 475; Railroad v. Railroad, 71 N.Y. 430. In fact, all self-enforcing judgments are unaffected by the taking of appeals therefrom, or the giving of bonds in support of such appeals. Elliott on Appellate Procedure, sec. 392; Walls v. Palmer, 64 Ind. 493. (6) Proceedings for contempt, though properly entitled in the action down to the attachment, are special proceedings, and not proceedings in the action at all. Sudlow v. Knox, 7 Abb. Pr. 411; Brinkley v. Brinkley, 47 N.Y. 40; Railroad v. Railroad, 71 N.Y. 430; 5 Am. and Eng. Encyclopedia of Law, p. 390. The provision in section 4707 for an attachment upon a judgment of ouster in a contested election case, in the event of disobedience to the order of the court, is simply a recognition of the inherent power of the court to have its judgments respected. The incumbent, by virtue of the judgment proprio vigore, is ousted from the office, and any interference by him thereafter with its duties puts him in contempt of court, for which he may be properly attached and punished. See authorities just cited. (7) If the trial court had jurisdiction to consider the question, this court has no power to interfere before that consideration is had. State v. Klein, 116 Mo. 268. The effect of the judgment of ouster was, by virtue of its inherent, self-operating force, to turn Craig out of office, so that he was in no position to question the right of Nash. (8) The trial court, upon rendering final judgment, had power, pending appeal, to compel relator to surrender the office and to enforce its order to do so by attachment. R. S. 1889, sec. 4707. (9) The appeal did not operate as a supersedeas as to anything appealed from except the costs. R. S. 1889, sec. 4744.

Hall & Woodson, Huston & Parrish, Casteel & Haynes and James W. Boyd for relator Nash.

(1) Section 4707 of Revised Statutes, in providing that the party holding the certificate of election shall retain the office until the contest shall be decided, refers to, and means, the decision of the contest in the court having original jurisdiction. This is true, because when said section was enacted, in 1855, and down as far as 1867, no appeal lay in favor of either party, in a case of contested election. Boggs v. Brooks, 45 Mo. 232. (2) The provisions of the general statutes on the subject of appeals and supersedeas have no application whatever to cases of contested election....