44 Mo. 223 | Mo. | 1869
delivered the opinion of the court.
The attorney-general, on behalf of the State, appears and files an information in the nature of a quo warranto, in which, among other matters, he states that at the general election held in this State on the third day of November, 1868, in the various counties, for State and county officers, one Samuel C. McCune, and defendant John H. Steers, were candidates, and the only candidates, in the county of Ralls, for the office of sheriff of said county; that McCune received a majority of all the legal votes cast for said office, in the said county, at that election, and that the judges and clerks of election in the various election districts in said county so certified to the county clerks of said county; that, notwithstanding the fact that said McCune received the majority of all the legal votes cast for said office of sheriff, the county clerk and board of county canvassers, unlawfully, wrongfully, for alleged informality and illegality, rejected and refused to count the votes, as certified by the judges and clerks of election, cast for said office in Jasper election district, in said county; that the said defendant Steers, by the said illegal and wrongful action of the county clerk in refusing to count and take into consideration the said votes and poll-books of Jasper election district, illegally obtained from the county clerk of said county his certificate of election from said clerk, and on the said certificate of election the governor of the State issued his commission to the defendant as sheriff of said county, under which commission the said defendant now holds and executes the duties of the said office of sheriff.
Á judgment of ouster is demanded against the defendant, for the reason that he is usurping and exercising the duties of an office to which he has no just or legal claim.
The defendant, in answer, sets up the plea that at the regular election, in 1866, he was a candidate for the office of sheriff in Ralls county, and was duly elected; that he received a certificate of such election from the clerk of the County Court of said county, and that thereon he was duly commissioned by the governor to serve for two years, and until his successor should be duly elected and qualified; and the defendant further alleges that, in pursuance of his said election in 1866, and by authority of the said commission, he accepted the said office of sheriff, and still holds and executes said office, no successor to .the defendant in said office having been duly elected and qualified, and the defendant not having been removed for malfeasance.
Upon these pleadings the case stands in this court. The information expressly alleges that the defendant is holding and exercising the functions of the office by virtue of the election of 1868, and in consequence of a certificate wrongfully issued by the clerk of the County Court, upon which a commission was issued. There is no express denial of the averment, but there is an answer — argumentative, evasive, and negative in its character — stating that the defendant holds said office, no successor to him having ever been elected and qualified.
The information is a pleading which must be answered or demurred to, and it has been decided that the general rules of pleading. are applicable to proceedings upon an information in the nature of a quo warranto. ( People v. Clark, 4 Cow. 95; State ex rel. v. Bernoudy, 36 Mo. 297 ; State v. Messmore, 14 Wis. 115.)
The evasive answer, that no successor to the defendant had ever been qualified, is full of duplicity, and may be construed to
In the case of The People v. Van Slyck (4 Cow. 297), it was determined that an information in the nature of a quo ivarranto would lie against one intruding into the office of sheriff in consequence of an unlawful decision of the county board of canvassers, the duties of the board being ministerial, and not judicial. It is true that by force of existing law the officer holds until his successor is elected and qualified; but if, by unlawfully detaining his certificate and commission, he prevents the person legally entitled thereto from qualifying, he will not be allowed to set this up in defense, and reap a benefit from his own wrong.
The question, then, arises, by what authority did the county clerk, acting as a mere canvassing officer, assume to determine the legality of the vote in the Jasper election district? Although the vote might have been informally certified, that would make no difference. Officers should look at substance, and not at form. A literal compliance with the prescribed forms is not required in any case if the spirit of the law is not violated; and the governing principle in all cases is to clearly ascertain the intention of the voters. If a defect existed in the certificate, that might be supplied at any time by the judges and clerks, whose duty it was to make the same before the vote was counted. The statute requires that within eight days after the close of each election the clerk of each county court shall take to his assistance two justices of the peace of his county, or two justices of the county court, and examine and cast up the votes given to each candidate, and give to those having the highest number of votes a certificate of election. (Gen. Stat. 1865, p. 63, § 25.) Here is
I have examined, with a good deal of research, the authorities, and have never been able to find a single one that held otherwise than that the canvasser acted ministerially; but they are unanimous and decisive, declaring him to be a ministerial officer, and nothing else. (Mayo v. Freeland, 10 Mo. 629 ; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256; Ex parte Heath, 3 Hill. 42 ; Brower v. O’Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413 ; People v. Jones, 19 Ind. 357 ; Ballou v.
The record abundantly shows that the defendant has no legal right to the office which ho is now holding, and judgment of ouster will therefore be entered against him, with costs.
