Wilson v. Lucas
| Decision Date | 28 February 1869 |
| Citation | 43 Mo. 290 |
| Parties | IN THE MATTER OF THE PETITION OF JOHN WILSON, Contestant, v. PHILANDER LUCAS, Contestee. |
| Court | Missouri Supreme Court |
Hall & Oliver, for contestant.
Johnson, Strong & Chandler, for contestee.
I. This pleading is authorized and sanctioned by the law and practice of this State, no practice being prescribed by statute. (Castello v. St. Louis Circuit Court, 28 Mo. 259.)
II. This contest was not instituted within the time prescribed and limited by law. (Gen. Stat. 1865, ch. 2, § 80; Castello v. St. Louis Circuit Court, 28 Mo. 259.)
III. The petition of contestant does not sufficiently allege that he was eligible or qualified to hold the office he is contesting. (State ex rel. Bartley v. Governor, 39 Mo. 388; Curry v. Cablis
et al., 37 Mo. 330; Biddle v. Boyce, 13 Mo. 532; Smith et al. v. Dean, 19 Mo. 63; Jones v. Brinker, 20 Mo. 87; Tallman v. Green, 3 Sandf. 437; Stone v. De Puga, 4 Sandf. 681; Garvey v. Fowler, id. 665; Boyce v. Brown, 7 Barb. 80; Van Schaik v. Winne et al., 16 Barb. 89; Murdock v. Chenango Ins. Co., 2 Conn. 210; Levy v. Bend, 1 E. D. Smith, 169; Mann v. Morewood, 5 Sandf. 557.)
IV. The petition of contestant does not, upon its face, show that he was legally elected, and does not sufficiently set forth the points upon which he will contest, or the facts he will prove in support of such points. .)
V. It is not sufficiently alleged that any of the persons who voted for contestant were legally-qualified voters. Contestant should have set up the facts which, if true, would render them qualified voters, and not the conclusion of law. (Curry v. Cablis et al., 37 Mo. 330; Const. art. VI, § 18; art. II, §§ 8, 10; Gen. Stat. 1865, ch. 31, § 1.)
John Wilson files his petition in this court at the present time, and prays that he may be allowed to contest the right of the defendant, Lucas, to the office of judge of the fifth judicial circuit in this State. He states, in substance, that he is a free white male citizen of this State, over the age of thirty years, and has been a resident of said circuit for twenty-seven years; that at the general election held on the 3d day of November, 1868, he and the defendant, Lucas, were candidates for the office of judge in said circuit, and that at that election he received two thousand votes, marked on the ballots by the respective judges of election “rejected,” which were not counted by the judges of election as qualified voters, but were sent up by the judges and clerks of election to the clerks of the County Courts of the respective counties as rejected voters; that said last-named clerks refused to cast up and count the same with the other qualified voters, but returned an abstract of them, with the other qualified voters, as rejected votes, to the secretary of State, who also refused to cast up and count the same, and certified to the governor of the State that Lucas received the highest number of votes, by means whereof Lucas received the commission.
The petition further alleges that the votes were rejected in pursuance of the registration law of this State, which was passed in conformity with the provisions of the State constitution, and that the same is repugnant to and violative of the constitution of the United States; and that, had the rejected votes been counted, they would have given him a majority and entitled him to the commission.
He also states that, within fifteen days prior to such election, he filed his oath of loyalty, as required by law, and that he received the largest number of legally-qualified votes for the office of judge, which were duly certified and returned to the secretary of State, which officer opened and cast up the votes of all the counties except the county of Platte; and that, by the omission to cast up the vote of Platte county, which gave a majority for petitioner, he was illegally deprived of the commission and his right to the office; and he prays that Lucas's commission may be vacated, and that he may be declared entitled to the office.
By an affidavit annexed to the petition it appears that Lucas was served with a copy of the petition, and the time and place when the same would be presented, on the second day of February, 1869. The defendant, Lucas, appears in court and moves to quash and dismiss the petition and notice, and assigns several reasons therefor. The petition is certainly very defective, and the omissions of essential particulars are most palpable....
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State ex rel. Bulger v. Southern
... ... statute was essential to jurisdiction. [ Castello v ... Court, 28 Mo. 259, 276; In re Wilson v. Lucas, ... 43 Mo. 290, 294; Bowen v. Hixon, 45 Mo. 340, 345; ... Ramsey v. Huck, 267 Mo. 333, 339, 184 S.W. 966, and ... cases cited; ... ...
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The State ex rel. Woodson v. Robinson
... ... has no jurisdiction, and must dismiss the proceedings ... Castello v. Court, 28 Mo. 259; Wilson v ... Lucas, 43 Mo. 290; Bowen v. Hixon, 45 Mo. 340; ... Higbee v. Ellison, 92 Mo. 13; Montgomery v ... Dormer, 181 Mo. 5; 7 Ency. Pl. & ... ...
- Wheelock v. Overshiner
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Ramsey v. Huck
...259, we held that the notice required in a contested election case must be given within the time prescribed by the statute, and in Wilson v. Lucas, 43 Mo. 290, which was a contest of an election to the office of circuit judge, the statute required a certain number of days' notice of the con......