State ex rel. Snyder v. Newman

91 Mo. 445 | Mo. | 1886

Black, J.

The relator was a candidate for mayor of Pierce City, at the April election, 1886. The respondents are the aldermen of that city. An ordinance of the city makes it the duty of the aldermen, on a designated day, after each election, to canvass the returns, to determine who has been elected to the various offices, and to direct the clerk to issue certificates of election to the persons declared elected. In this case, the aldermen determined that relator had-received the highest number of votes, but declined to direct the clerk to issue a certificate of election, and he now seeks, by the writ of mandamus, to compel them to do so. The law (Acts of 1881, p. 58), in express terms, declares that no person shall be mayor of these cities of the fourth class, unless he be an inhabitant of the city for one year next before his election. On the pleadings, as they stand, it is admitted that the relator did not possess this qualification. A peremptory writ of mandamus will mot be issued, unless the relator shows a clear right to the remedy which he asks. State ex rel. Ensworth v. Albin, 44 Mo. 346. The election of a person to an office who does not possess the requisite qualifications, gives him no right to hold the office. 1 Dill. Mun. Corp. [3 Ed.] sec. 196. As, by reason of his disqualifications, the relator was not entitled to hold the office, surely he has no right, at the hand of the court, to be armed with a certificate of election— evidence of title to that to which he has no right.

We have treated the motion for a peremptory writ on the return as a demurrer, for that it is, in effect. It is not only shown, by the return, that the relator did not possess the requisite qualifications, but the writ, after stating that he had been an inhabitant of the city for one year before the election, proceeds to say, “and if, perchance, construed not to have been an inhabitant of said city for one year, yet,” etc. This evasive statement must be regarded as an admission, by the relator’s own pleading, that he has not been an inhabitant of the city for the necessary period of time. There is, therefore, no need of holding the case over for further pleading.

The motion is overruled, and judgment will be entered, on the pleadings, for the respondents, with costs against the relator.

All concur.