The State ex rel. Davidson v. Caldwell

• Citation: 276 S.W. 631,310 Mo. 397
• Decision Date: 06 October 1925
• Docket Number: 24740
• Parties: THE STATE ex rel. A. A. DAVIDSON, Relator, v. I. W. CALDWELL et al., Respondents (Appellants)
• Court: United States State Supreme Court of Missouri

276 S.W. 631

310 Mo. 397

THE STATE ex rel. A. A. DAVIDSON, Relator, v. I. W. CALDWELL et al., Respondents (Appellants)

No. 24740

Supreme Court of Missouri

October 6, 1925

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

Hall & Billings for appellants.

(1) The reviewing court has no jurisdiction to review the proceedings below unless a writ has duly issued whereby the record of the proceedings is to be removed. State ex rel. v Weinfurther, 66 N.W. 702; State ex rel. v Souders, 69 Mo.App. 472; State ex rel. v. Valliant, 123 Mo. 524; State ex rel. v. Thompson, 45 Mo. 52; 6 Cyc. 795; 11 C. J. 163; McKay v. Jones, 30 Ark. 148; Dicuss v. Bright, 23 Ark. 107. (2) The issuing of the commonlaw writ of certiorari is the exercise of judicial power and discretion in term time, and such writ cannot be issued by the clerk, a mere ministerial officer, who cannot exercise judicial power and discretion. State ex rel. v. Springer, 134 Mo. 212; State ex rel. v. Valliant, 123 Mo. 531; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Dobson, 135 Mo. 19; State ex rel. v. Wurdeman, 254 Mo. 561. (3) Judicial power is the power of the judge or chancellor. The issuance of a writ of certiorari is the exercise of a judicial power in the exercise of judicial discretion by the judiciary. State ex rel. v. Hathaway, 115 Mo. 36; State ex rel. v. Andrae, 216 Mo. 617. (4) The writ of certiorari is the first pleading in Missouri. The application or petition for the writ is a mere assignment of errors. State ex rel. v. Powers, 68 Mo. 323; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Williams, 70 Mo.App. 238; State ex rel. v. Valliant, 123 Mo. 531; State ex rel. v. Souders, 69 Mo.App. 473; State ex rel. v. Morton, 27 Mo. 320; State ex rel. v. Dobson, 135 Mo. 1; State ex rel. v. Springer, 134 Mo. 212; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Wurdeman, 254 Mo. 561. (5) No waiver of void writ to appear and file return. State ex rel. v. Dowling, 50 Mo. 134; Jones v. Sanderson, 229 S.W. 1087. (6) The void writ is fatally misdirected. Holcomb Township is a corporate body under the provisions of township organization, and as such corporation must sue and be sued as such. Secs. 13169, 13171, R. S. 1919; State ex rel. v. Souders, 69 Mo.App. 472. (7) Certiorari will not lie. The act reviewed was not an exercise of judicial power. Declaring the office of constable vacant, and the appointment of a new constable, was solely executive and administrative, and coupled with a discretion. Sec. 13198, R. S. 1919; 5 R. C. L. sec. 14, p. 263. (a) An act involving discretion is not a judicial act and not reviewable by certiorari proceedings. State ex rel. v. Reynolds, 190 Mo. 588; State ex rel. v. Shocklee, 237 Mo. 460. (b) The power delegated to the township board to declare vacancies is not "for cause." In order for the action of a public agent or governmental agent to be reviewed as a judicial act by certiorari it must be "for cause." No judicial action involved where the power is delegated is for exercise upon those specified by the statute alone. State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Slover, 113 Mo. 202. (c) The law presumes that an officer has done his duty, and in this case, although the return is silent as to the giving of the statutory notice by the clerk (Sec. 13187, R. S. 1919), it will be presumed that the clerk gave such notice. State ex rel. v. Andrae, 216 Mo. 617. (d) The matter of notice in writing is not jurisdictional. Jurisdictional facts go to due process of law: appearance and trial. Hence refer only to judicial action or exercise of power "for cause." The order of the corporate board is conclusive. There was an appearance and trial. The powers granted by Sec. 13198 is not judicial action, nor exercise for cause. Trial and appearance could have been dispensed with. State ex rel. v. Knott, 207 Mo. 167; 5 R. C. L. sec. 14, p. 263; Secs. 13193-13195, R. S. 1919. (8) The return shows that relator took and was granted an appeal to the July term of the Dunklin County Circuit Court from the order of appellants declaring a vacancy in the office of constable, and that said suit was still pending at the time of the institution of the within suit by certiorari, and was still pending at the time of the filing of the return herein. This affirmative defense was specifically pleaded. Vantine v. Butler, 250 Mo. 450.

McKay & Jones for relator.

(1) The writ of certiorari is proper to bring up the action of the township board in ousting the relator who was constable-elect. 11 C. J. p. 120; State ex rel. v. County Court, 237 Mo. 460; State ex rel. v. Wells, 210 Mo. 601; State ex rel. v. Reynolds, 190 Mo. 578; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. Slover, 113 Mo. 202. (2) (a) The relators entered their appearance and waived the issuance of the writ. The filing of the application for change of venue, demurrer and motion to dismiss, incorporating within the motion pleas to the merits of the cause, together with the filing of the return and the conduct of the respondents causing the relator to go to the expense of a trial, are such things as will waive a defective writ and enter the appearance of respondents. Rector v. Circuit Court of St. Louis, 1 Mo. 607; Tilles v. Pub. Co., 241 Mo. 618; Baisley v. Baisley, 113 Mo. 551; Advertising Co. v. Castleman, 265 Mo. 345; 11 C. J. 168, par. 238; 169, par. 323; 187, par. 321; Tippach v. Briant, 63 Mo. 580; Tuttle v. Hutchison, 173 Iowa 503; Graves v. Richmond, 56 Iowa 69; State ex rel. Koehler v. Bulger, 233 S.W. 486. (b) The proper way to raise the question as to a defective writ or a void writ is by proper motion before the filing of the return. 11 C. J. 170, par. 234; State v. District Court, 190 Mont. 285. (3) Section 13187 provides that the township clerk shall, within ten days after such township election, transmit to each person elected to any township office a notice of his election. It is undisputed that this notice was never given in writing prior to the record herein ousting the constable-elect and appointing his successor; that within ten days after his notification in writing the constable-elect qualified by filing his bond as prescribed by the statute. (a) The notice required by Section 13187 must be in writing. 29 Cyc. 1117, par. B; Foley v. Mayner, 37 N.Y.S. 465; Jenkins v. Wild, 14 Wend. (N. Y.) 539; Norton v. New York, 38 N.Y.S. 90; Pierson v. Lovejoy, 53 Barb. (N. Y.) 407; McSwen v. Montgomery Co. Ins. Co., 5 Hill (N. Y.) 101; State v. Elba, 34 Wis. 169. (b) It is conceded that no written notice was ever given relator herein as contemplated by the statute. (c) The question as to whether notice was given is a question for the court to determine. 29 Cyc. 1126; Muldraw v. Roberson, 358 Mo. 331. (d) No notice having been given according to the statute, the proceedings of the board ousting the duly elected constable and appointing a successor was void.

OPINION

Walker, P. J.

This action, sounding in certiorari, was brought in the Circuit Court of Dunklin County to quash the record of the Township Board of Holcomb Township ousting the relator as constable of said township and to quash certain orders of said board appointing his successor. Dunklin County having adopted township organization (Chap. 121, R. S. 1919), the law in regard thereto, being in force at the time of this proceeding, is applicable to Holcomb Township. A writ of certiorari was issued by the judge of the Circuit Court of Dunklin County, directing the Board of Holcomb Township to certify to said court the record of its proceedings in regard to the matter here under review. Respondents filed a motion to quash the writ and also a demurrer thereto. These in their order were overruled. Respondents thereupon filed an application for a change of venue and also a return to the writ. The application was granted and the case was sent to the Circuit Court of Cape Girardeau County, where the respondents filed a motion to dismiss, on the ground of a defect of parties, that the township and not the board of trustees should have been sued. This motion was overruled. Thereafter at the same term respondents filed a motion for a judgment on the pleadings, together with a demurrer and a motion to quash, which, after argument of counsel, the court took under advisement and overruled, and later, at the same term, the cause was reargued and submitted and an order was made dismissing the relator's petition on the ground that the writ was void because it had been issued by the clerk. Thereupon the relator filed a motion to set aside the order of dismissal of his petition, which having been heard on argument of counsel for the respective parties was sustained, and the court's order set aside and the case re-instated on the docket. Upon a rehearing upon the merits the court found that the respondents, as members of such township board, had failed to give the relator, Davidson, the ten days' notice of his election required by law. The remainder of said judgment was in these words:

"And that the order of the township board made and entered on the 14th day of May, 1921, declaring the said office of the Constable of Holcomb Township vacant, and the order made and entered on the day of June, 1921, by the township board appointing S. E. Stephens as Constable of Holcomb Township is void and of no binding force and effect, and that said orders as aforesaid are by the court cancelled, set aside and for naught held; and that all the proceedings had by the township board touching the ousting of A. A. Davidson as Constable of Holcomb Township and the appointing of S. E. Stephens as such constable are void and the same are quashed, set aside, cancelled, annulled and for naught held, and the costs of this...