The State ex rel. Abington v. Reynolds
| Decision Date | 26 January 1920 |
| Parties | THE STATE ex rel. CARL C. ABINGTON v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals |
| Court | Missouri Supreme Court |
Record quashed.
Sam M Phillips, Ed. L. Abington and W. T. Rutherford for relator.
(1) It is well settled that a cause must be heard and determined in the appellate court upon the same theory as that upon which it was tried in the court below. St. Louis v. Wright Contracting Co., 210 Mo. 502; Walker v. Owen, 79 Mo. 563; Minton v. Steele, 125 Mo. 181; Dice v. Hamilton, 178 Mo. 81; Meyer Bros. Drug Co. v Bybee, 179 Mo. 354. (2) The judgment and opinion of the St. Louis Court of Appeals is in conflict with the following decisions of the Supreme Court of Missouri, to-wit: State ex inf. v. Harwell, 265 Mo. 26; Mayes v. Palmer, 206 Mo. 297; State ex rel. v. Clark, 52 Mo. 508; State ex rel. v. Gordon, 245 Mo. 28; Ex parte Bob Snyder, 64 Mo. 58; State v. O'Brian, 68 Mo. 153; State ex rel. v. Seibert, 130 Mo. 222; Deiner v Chronicle Publ. Co., 230 Mo. 630; State ex rel. v Wright, 251 Mo. 325; Mulbry v. McCann, 95 Mo. 579; State ex rel. v. Draper, 48 Mo. 215; Henderson v. Koenig, 192 Mo. 690. (3) The judgment and opinion of the Court of Appeals is in conflict with the following decision of the Supreme Court of the United States: Norton v. Shelby Co., 118 U.S. 425. (4) The judgment and opinion of the Court of Appeals is in conflict with the following decisions of this court, to-wit; State ex rel. v. Stone, Treas., 269 Mo. 344; Titus v. Development Co., 264 Mo. 249; Wilson v. Drainage Dist., 257 Mo. 283; Davidson v. Real Est. & Inv. Co., 249 Mo. 503; Landis v. Hamilton, 77 Mo. 554; Wood v. Ensel, 63 Mo. 193-4; Strong v. Phoenix Ins. Co., 62 Mo. 299; Harvel v. Turner, 46 Mo. 448; State to use v. Coste, 36 Mo. 437-8. (5) Both relator and Harwell were bound by the decision and judgment of this Court in State ex inf. Attorney-General v. Duncan, 265 Mo. 26. See Titus v. Development Co., 264 Mo. 248; State ex rel. v. Stone, 269 Mo. 344; Wilson v. Drainage Dist., 257 Mo. 283; Davidson v. Real Est. & Inv. Co., 249 Mo. 502; Landis v. Hamilton, 77 Mo. 565; Wood v. Ensel, 63 Mo. 192. (6) Absent a de jure office there cannot be a de facto officer. Norton v. Shelby Co., 118 U.S. 425; Kavanaugh v. Gordon, 244 Mo. 719; State ex rel. v. Nast, 209 Mo. 722; Ex parte Snyder, 64 Mo. 58; State v. O'Brian, 68 Mo. 153. (7) As a part of the general history of this State its courts will take judicial notice of the tenure of office of local officials. 16 Cyc. 869, 900; State ex rel. v. Seibert, 130 Mo. 221. (8) Courts judicially notice appointments to office by the Governor of the State, the date of accession to and the term of office. 16 Cyc. 901, 902; Mayes v. Palmer, 206 Mo. 298, 299; Bristol v. Fischel, 81 Mo.App. 367; Deiner v. Chronicle Pub. Co., 230 Mo. 630; State ex rel. v. Wright, 251 Mo. 325.
L. M. Henson and Sheppard & Sheppard for respondents.
(1) Where, on a certiorari, it appears that the decision of the Court of Appeals complained of was not in conflict with any prior ruling of the Supreme Court, regardless of whether the decision of the Court of Appeals was right or wrong, it is beyond the reach of the Supreme Court. Arel v. Farrington, 272 Mo. 157; State ex rel. Heinie Safety Boiler Co. v. Robinson, 188 S.W. 101. (2) On a certiorari to review an opinion of the Court of Appeals where it is alleged to be in conflict with a prior ruling of the Supreme Court, only matters of record and facts stated in the opinion of the Court of Appeals will be reviewed by the Supreme Court. State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Regis v. Reynolds, 200 S.W. 1039. (3) It is claimed by relator that the case of State ex inf. Attorney General v. Duncan, 265 Mo. 49, passed upon the rights of the relator to said office. Respondent says that the opinion in that case did not pass upon relator's rights to hold the office, nor could it have done so. The only point which may be determined in a quo warranto proceeding, instituted by the Attorney-General upon his own information, is the right of respondent to the office. No inquiry can be made into the right of any other person to said office. Relator was not a party to the record in that case, and could not have been, because said proceeding was instituted upon the information of the Attorney-General and not at the relation of anyone. Therefore, relator's right to said office was not, and could not have been, determined in said proceeding. Hunter v. Chandler, 45 Mo. 452; Stat ex rel. v. Gordon, 245 Mo. 30; Mullery v. McCann, 95 Mo. 582; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Ross, 161 Mo.App. 671. (4) The sole question passed upon in the opinion of the St. Louis Court of Appeals was whether or not the relator herein was entitled to the fees of the office of County Collector of Butler County prior to the 15th day of April, 1915, the date on which his bond as such collector was approved by the county court. The Court of Appeals in its opinion held that he was not. In this holding we contend that court was correct, and it is not in conflict with any decision of the Supreme Court of this State for the reason that this question has never been passed upon by the Supreme Court. Secs. 11434, 11440, R. S. 1909; 29 Cyc. 1387; 23 Am. & Eng. Ency. Law, 361; McMillin v. Richards, 45 Nebr. 791; Ex parte Craig, 130 Mo. 590; Dickerson v. City of Butler, 27 Mo.App. 9; Stuhr v. Curran, 44 N. J. L. 181; State v. Carroll, 38 Conn. 449; Hunter v. Chandler, 45 Mo. 452; Sec. 11684, R. S. 1909. (5) The commission issued by the Governor upon his appointment of the relator to the office of county collector, was merely prima-facie evidence of his title to that office. 29 Cyc. 1373; State ex rel. v. Steers, 44 Mo. 223.
OPINION
In Banc
Certiorari.
Certiorari to the St. Louis Court of Appeals to quash its record in Abington, Appellant, v. Harwell, Respondent, designated hereinafter as the "original action." The appellant, who was at the time Collector of the Revenue of Butler County, sued the respondent for money had and received, consisting of commissions on taxes collected by the latter to the former's use. At the close of a jury trial the court sustained a general demurrer to appellant's evidence and directed a verdict for the respondent. An appeal to the St. Louis Court of Appeals resulted in an affirmance of the judgment of the trial court. The writ herein was thereupon invoked on the ground that the ruling of the Court of Appeals was in conflict with certain decisions of this court.
The facts, as disclosed by the opinion, are that Harwell had in March, 1913, been elected Township Collector of the Revenue of Poplar Bluff Township in Butler County, then under township organization. At the general election held November 3, 1914, the continuance of township organization was, under the provisions of Section 11745, Revised Statutes 1909, submitted to the voters of that county, with the result that a "majority of all the votes cast on the question was against its continuance."
On November 28, 1914, the Governor, acting under the authority of Section 5828, Revised Statutes 1909, and Section 11 of Article V of the State Constitution in regard to the filling of vacancies in office, appointed and commissioned Abington Collector of the Revenue of Butler County. The county court of that county on December 1, 1914, under a provision of Section 11745, supra, appointed one Duncan Collector of the Revenue of said county, who qualified by taking the oath of office and tendering an official bond which was accepted by the county court, but he never attempted to exercise any of the duties of the office. On the same day Abington presented to the county court a bond as Collector of the Revenue of said county. The court refused to approve the same on the ground that the power to appoint a collector was lodged by the statute (Sec. 11745) in the county court and not in the Governor. On December 17, 1914, Abington executed and submitted to the county court a new bond as Collector of the Revenue of said county in the sum of $ 125,000, the approval of which was refused by the county court on the sole ground, as before, that the appointment made by the Governor was unauthorized. The only difference between the two bonds was that the second was $ 5,000 larger in amount than the first.
During the time intervening between the election for the discontinuance of township organization in said county in November, 1914, and the ruling of the Supreme Court in State ex inf. Attorney General v. Duncan, 265 Mo. 26, on April 2, 1915, in disregard of the appointment of Abington by the Governor and the attempted appointment of Duncan as county collector by the county court, Harwell and the other township collectors continued in the exercise of the duties of the offices of township collectors in said county, and it is for the recovery of the amount of the commissions on collections made by said Harwell during that time and retained by him that the original action herein was brought by Abington.
In December, 1914, the Attorney-General instituted in the Supreme Court a proceeding by quo warranto to determine the right of Duncan to the office of county collector, and that of Harwell and others named to the offices of township collectors of Butler County. This is the action heretofore referred to as State ex inf. Attorney General v. Duncan. It was held in that case that the provision in Section 11745 requiring an affirmative vote of "all those voting at an election to discontinue township organization" was...
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