Beck v. Jackson

43 Mo. 117 | Mo. | 1868

Wagner, Judge,

delivered the opinion of the court.

The relator asks the court to issue a mandamus against Albert Jackson, judge of the Tenth Judicial Circuit, requiring him to proceed to approve his bonds as clerk of the Circuit Court and recorder for the county of Cape Girardeau. It appears that, at the general election in 1866, one Leopold Ilorsten was elected clerk of the said court, and rvas duly commissioned and qualified as such, and entered upon the discharge of his duties, and continued as such clerk until his death, on the 26th day of August, 1868; that on the 29th day of August, 1868, the governor of this State duly appointed and commissioned the relator clerk of said court, to fill the vacancy occasioned by the death of Ilorsten.

The relator requested the respondent to fix the amounts for which he should give bonds for the respective offices, which the respondent neglected to do. Two days after the decease of Ilorsten, the respondent appointed Nathan C. Harrison clerk of the court and ex-officio recorder, and approved his bonds and put him in possession of the office. On the 4th of September, 1868, the relator presented to the respondent two bonds signed by himself and sureties — one conditioned for his faithful performance of the duties of circuit clerk, in the penal sum of six thousand dollars; the other for his performance of the duties of recorder, in the sum of two thousand dollars — and requested him to approve the 'same. -This request respondent refused, and indorsed on each bond that he refused to approve the same for the reason that he had appointed Nathan O. Harrison to the respective offices, had already approved his bonds and put him in possession of the offices. It is now contended by the respondent that the relator has no standing in the court; that before he can invoke the writ of mandamus he must establish his right to the office at law. But this is not a proceeding asking to be inducted into the office; it is merely a demand that the respondent shall proceed to perform a duty devolved on him by law; and for a refusal or neglect to perform, the relator is remediless unless the court issues the writ. The commission issued by the governor was at least prima facie evidence of title to the office, and, if its validity or legality should be disputed, that question can only be determined by a proceeding in the nature of a quo warranto, in case Harrison refuses to surrender the office.

A peremptory mandamus will be ordered.

The other judges concur.