State ex rel. Jackson v. Thompson

36 Mo. 70 | Mo. | 1865

Wagner, Judge,

delivered the opinion of the court.

This case is the same as the one reported in 34 Mo., between the same parties, except that the petitioner now claims the additional salary that has accrued since the institution of the proceedings thereon. The question involved is the same. A mandamus will not be issued to admit a person to an office while another is in under color of right. The election of Emerson as Judge of the 15th Judicial Circuit is admitted : he was regularly commissioned, and held his office under said election as judge. The register in the office of the Secretary of State showed Emerson to be the judge; and the Auditor, in auditing and allowing the salary, is governed by the register. A conflict of title to the office is then presented, and that cannot be determined by mandamusit must be by a direct proceeding in the nature of a quo warranto.

The distinguished counsel for the petitioner has assumed, that, because the office has since been vacated by act of Convention, no question as to title can arise with the incumbent Emerson, and, therefore, mandamus is the only remedy; but this is begging the question. If Emerson was legally in as judge, then the petitioner is not entitled to the compensation he seeks ; and this involves a determination of who was the legal and rightful occupant of the said office, which we hold cannot be passed upon in this action.

Judge Lovelace concurring,

the application for a mandamus is refused;

Judge Holmes not sitting.