88 Mo. 386 | Mo. | 1885
This is an information in the nature of a quo warranto, at the relation of Harris, circuit attorney for the eighth judicial circuit, city of St. Louis, against the respondent, Patrick McCann, requiring him to show by what warrant or authority he claims to have and exercise the powers and duties of a justice of the peace, within and for the fifth district in the city of St. Louis, Missouri. The information charges, in substance, that •one Vincent Mullery, in November, 1878, was duly elected and qualified as a justice of the peace, in said district, in said city, for the term of four years; that he resigned said office in October, 1879, and, thereupon Michael Mullery was duly appointed as his successor, in said office, by the mayor of said city of St. Louis, and qualified thereunder and entered upon the duties of said office. That, afterwards, to-wit, on the fourth of June,. 1881, said respondent, McCann, unlawfully usurped and entered into said office of justice of the peace for said district, in said city, and has from that time, until the filing of this information, used and exercised and still uses and exercises the powers and duties of the same without any warrant or legal authority whatever..
The respondent, for return to the writ issued to show cause, admits Vincent Mullery’s election and resignation and appointment of Michael Mullery by the mayor, but alleges, in substance, first: That, at the November election in 1880, he was duly elected justice of the peace, in and for said district, in said city; that he was duly commissioned and qualified as such and that, thereupon, said Michael Mullery turned over to him the books, pa
To this return, the relator filed, first, a general denial, and as to that part of said return, which predicates his right and title to said office, upon said election, ■commission and qualification in November, 1880, the relator replies that at the time of the commencement of this action, and the making of said return, there was, and is another action pending in the Supreme Court, between the same parties, and for the same cause as that set forth in this information and return thereto. The cause was tried by the court without a jury, and there was a finding and judgment for the respondent, from which the relator appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed, and that court, proceeding to render the judgment which the circuit court should have rendered, awarded judgment of ouster against said respondent, from which he
So far as respondent’s title to.said office rests upon his said election to that office, at the November election of 1880, that precise question was before this court at a’ former term, in a similar proceeding between the same parties, and it was there held that the respondent’s return in that behalf was insufficient, and judgment of ouster which had been rendered by the circuit court affirmed. The State ex rel. the Circuit Attorney v. McCann, 81 Mo. 479; see also State ex rel. Att'y Gen'l v. Ranson, 73 Mo. 78. That decision disposes of the first part of respondent ’ s return, in this case, and leaves him no title to stand on, except the mayor’s appointment and commission of fourth of June, 1881, sei up in said return. The court of appeals, in treating of this branch of respondent ’ s return, uses this language: “This appointment and commission were of no validity, unless the office was in fact vacant. At the time when McCann, by virtue of his election in 1880, assumed possession of the office, the office was held by Michael J. Mullery under an appointment and commission, issued by the mayor of St. Louis, for the unexpired term of Vincent L. Mullery, resigned. Under the decision of the Supreme Court, followed by this court, as above stated, the term of Mullery did not expire until the qualification of the person who should be elected to fill the office at the general election in November, 1882. Unless, therefore, Mullery’s appointment to the office was invalid, or unless he resigned, abandoned, or became otherwise dispossessed of the office, the appointment by the mayor of this respondent was void, because there was no vacancy to fill.
The rule being that the burden is upon the respondent to show title to the office (High Ex. Leg. Rem., section 229) the inquiry is, has the respondent shown any
’ In these views of the court of appeals we concur, and for these reasons, and others hereinbefore stated, we