77 Mo. 189 | Mo. | 1882
This is a proceeding in the nature of a. quo warranto, the object of which is to oust respondent from the office of sheriff of the city of St. Louis, which, it is alleged, he has usurped.
In his answer to the writ, the respondent alleges that, on the 7th day of November, 1880, at a regular election held in that city, he was duly elected to the office for a term of two years, commissioned and qualified, etc.; that again, at the regular election in 1882 he was elected to the same office, received a certificate of his election from the
The replication admits that respondent was duly elected in 1880, as alleged in the answer, but denies that he was elected in 1882. It admits that he received from the register a certificate of his election, that he was com» missioned by the Governor, and qualified, etc., but alleges that there were counted 5,000 illegal ballots, as received by him, which deducted from the vote returned for him, left a majority of the legal votes cast in favor of Lawrence Harrigan, who was one of the competitors for the office. A motion was filed by respondent to strike out that portion of the replication relating to illegal ballots, and this presents a question, which, if determined in favor of respondent, is decisive of the case.
In the State ex rel. Attorney General v. Vail, 53 Mo. 97, this court, in an opinion delivered by Judge Napton, in which the subject is treated with the ability which distinguished that learned judge, observed: “ The next inquiry is the allegation in the return, or answer, that the defendant was duly elected by a majority of the qualified voters. The court might pass over the plea as evasive and equivocal, but conceding it to be an indirect assertion that the defendant was elected by reason of the number of illegal votes cast for his competitor, the question is presented, whether the court will, in this proceeding undertake to examine the truth of this allegation. In our opinion we have no such power.” He then proceeds to give satisfactory and conclusive reasons why this court cannot enter
While section 3, article 6 of the constitution gives to this court “power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same,” in the hearing and determination thereof, the mode of procedure and the principles to obtain, are those of the common law; and in the State ex rel. v. Vail, supra, this court came to the conclusion that, at common law, where a mode of contesting an election was provided, the court, in a quo loarranto proceeding, would not enter into an inquiry as to the legality of votes, or the qualification of voters. Here, under a constitutional provision requiring it, the legislature has provided a mode of contesting this election on those grounds, and a tribunal to hear and determine it, other than this court, and neither the State nor an individual, by a proceeding in quo warranto, can have a judgment of ouster
It was stated in 'the oral argument of this cause by respondent’s counsel, and not denied, that there is now a contest pending between Mason and Harrigan under the election law, in this very case, and if it be true that such a contest is pending, the statute expressly declares that, “the person holding the certificate of election may give bond, qualify and take the office at the time specified by law, and exercise the duties thereof, until the contest shall be decided.” "We do not place our judgment, however, on the fact (which is not in this record) that such a contest is pending, but, that resort may be had by Harrigan to that remedy for the trial of his right to the office of sheriff of the city of St. Louis.
The motion to strike out that part of the replication relating to the 5,000 illegal ballots is sustained.