41 Mo. 227 | Mo. | 1867
Lead Opinion
delivered the opinion of the court.
The questions for consideration in this case arise upon a demurrer to the answer of the defendant.
The information in the nature of a quo warranto, filed by the Attorney-General against the defendant, alleges that at a general election held in the county of Boone on the 6th day of November, 1866, one Henry N. Cook was duly elected clerk of the County Court of said county, he having received the highest number of legal votes cast for any one person for that office, and for whom the same could be legally counted; that the defendant on or about the 8th day of January, 1867, did usurp and intrude into said office, and has since that time unlawfully and wrongfully held the same, having no legal authority or commission therefor. It is admitted that the defendant was voted for at said election for that office ; but it is charged that by reason of his disloyalty to the Government of the United States, and by failing to take and subscribe the oath of loyalty required by the Constitution of the State, he was ineligible thereto. The answer admits that defendant did take possession of the office, but denies that his act was wrongful and without authority ; on the contrary, it alleges that he was duly elected and commissioned as required by law. It is admitted that the defendant sympathized with persons in armed hostility to the Government of the United States, but it is alleged that he was subsequently relieved from that disqualification by a decree of the Circuit Court of Boone county. A copy of the petition and proceedings of the court are attached to and made part of the answer.
It is also averred that, within the time prescribed by law, he took and subscribed the oath required to be taken by candidates for office, except so much as refers to the 3d section of the 2d article of the Constitution. .The answer also contains a statement of the facts upon which the defendant claimed to be relieved by the Circuit Court, and upon which the jurisdiction of that tribunal in the premises rested. It
The qualifications necessary to hold office are, so far as the question of loyalty is concerned, identical with those prescribed for voters. The same oath is required to be taken in both cases. In the case of Blair v. Ridgely, the question as to whether this provision of the State Constitution is in conflict with the Constitution of the United States was fully considered and determined by this court at its last March term in St. Louis. It will not be necessary therefore to discuss it now, or to restate the reason upon which the decision in that case rests.
The power of the State to declare in its fundamental law, or, when that is silent upon the subject, by legislative enactment, what shall constitute the test of eligibility to office, is as clear and unquestionable as is the power to fix the qualifications of voters; that point, therefore, may be disposed of by a simple reference to the case just cited. The only remaining point for consideration is the validity of the decree of the Circuit Court by which the defendant claims to have been relieved from a disqualification which his own petition to that court admitted to exist. The Constitution of the State has in cases of this sort conferred upon the Circuit Courts a peculiar and extraordinary jurisdiction. The grounds upon which it is made to depend as well as the manner of proceeding are set out with great minuteness in the Constitution. All of the authorities seem to agree substantially that in such cases the provisions of the law must be strictly followed, or else the action of the court should be held to be illegal and void. The case of Thatcher v. Powell, 6 Wheat. 119, may be regarded as the leading case upon that point; and one that has been uniformly followed by the State courts. Ch. Justice Marshall, in delivering the opinion of
The defendant’s answer does not contain a statement of facts sufficient to establish his claim to the office in question, and the demurrer must be sustained.
Dissenting Opinion
delivered the following dissenting opinion.
This case is submitted upon demurrer to the answer. It is assigned for a cause of demurrer that the record of the proceedings and decree of the Circuit Court of the county of Boone, relieving the defendant from his disqualification, do not show that he had ever committed any of the acts specified in the third section of the second article of the Constitution ; nor that the proceedings were had in the county of the defendant’s residence ; nor that he had ever voluntarily entered the military service of the United States, and been honorably discharged; and further, that he had not taken the oath of loyalty as required by the Constitution, and was therefore ineligible to the office.
First, it may be observed, that the petition for relief was somewhat inartificially drawn, and is objectionably indefinite in the forms of expression. It is for this reason not a little difficult to decide upon its sufficiency.
The cause of disqualification was stated to be “that he had a son and some relatives in the so-called Confederate Government who were .in armed rebellion against the lawful authorities of the Government of the United States, and sympathized with his son and relatives whilst thus engaged.” In the third section referred to, the words “ or has ever by any word or deed manifested his adherence to the cause of suqh enemies, or his desire for their triumph over the arms of the United States, or his sympathy with those engaged in exciting or carrying on rebellion against the United States,” are introduced in immediate connection with the preceding-clauses which specify acts that would clearly amount to treason, and these words, as well by their own import as upon the principle of nosdtur a sodis, would seem to imply some
The other objection on which the greater stress is laid respects the averment of military service. The Constitution required only that he should “ have voluntarily entered the military service of the United States—Art. 2, § 28. The allegations were that “ in 1864 he voluntarily entered the service of the country in a company commanded by Capt. J. S. Rollins, who was in actual service under Capt. Cary, who was in the United States voluntary service, and served and performed all the duties required of him as a soldier in the service of the United States until he was honorably discharged from service as aforesaid”; and further, that “ in the spring of 1865 he was a member of a voluntary organization of a military company of the citizens of Columbia for the purpose of putting down guerrillas in the name of the United States and in pursuance of orders made by the commanders of United States forces in the Department of Missouri and under the command of Capt. N. J.
There is some lack of precision in the form of these statements, but, giving them a fair interpretation, I do not well see how they can be held to amount to anything less than a substantial av.erment that he had voluntarily entered the military service of the United States and been honorably discharged. The facts so stated must be taken as true so far as this objection is concerned. No particular branch or kind of service is specified in this enactment. It is not necessarily to be service in the regular army, nor a formal enlistment for any given period of service in the volunteer forces. The kind of service, or the time of service, or the manner of enlistment, is not the material thing. It was evidently contemplated by the Constitution that as the disqualification was to arise from some act of treason, or disaffection, the removal of the disqualification when once incurred should be made to depend upon the simple fact that the party had since voluntarily entered the military service in the cause of the Union. This fact alone, when proved to the satisfaction of the court having jurisdiction, is assumed by the law to be enough to show that the party had returned to his allegiance, and was again ready and willing to perform all the duties of a loyal citizen. The Constitution was framed before the war ended, and it may reasonably be inferred that one object of this provision was to furnish an inducement to such persons to abandon the rebellion and adhere to the cause of the Union. It may be supposed that another object was to obviate the manifest injustice that would be done to meritorious soldiers who had voluntarily served in the ar
The allegations necessarily import that he was a volunteer in the military service of the United States, in a company that was raised, armed, equipped, and commanded under the authority of the Government, and that the company was a part of the United States forces, and was employed in military operations against the public enemy. I do not see but that a volunteer service in such a force may afford satisfactory evidence that the party had returned to his allegiance and become a loyal citizen; though if he had enlisted in the regular army, or in some corps organized for a longer term of service, his conduct might have been still more creditable.
In the case of Drehman v. Stifel, March term, 1867, (ante p. 184,) this court held that volunteer regiments of Home Guards, called into service by authority of the United States, armed and equipped from the arsenal at St. Louis, and acting under the orders of the commander at that post, were a lawfully military force engaged in the military service of the United States.
These considerations, I think, sufficiently show that the-military service alleged was such as to answer" the strictest, terms of the law, and that it came within the spirit and policy of this special enactment.
The court was acting under a special jurisdiction. The judgment is not conclusive of the jurisdiction; the record may be looked into for the facts which confer the power and show that it was lawfully exercised ; and every requisite that was essential to give jurisdiction must appear upon the face of the record, or the judgment will be regarded as a nullity.—Grignon v. Astor, 2 How. (U. S.) 341; Patterson v. Fagan, 38 Mo. 81. Where the statute gave power to order a sale only upon the report of the sheriff on certain publications being made, it was held that the report gave the jurisdiction, and that without it the matter was coram nonjudice,,
On the whole, my conclusion is that the defendant was relieved from his disqualification; that the oath which he took was all that was required of him by the 24th section of the 2d article of the Constitution,''and that he was lawfully entitled to hold the office.
Such being my view of the matter, the question of the constitutionality of the oath of loyalty is not essential to the determination of the case, and I see no useful purpose to be answered by my entering upon the consideration of that subject. Whenever that question shall again come directly in judgment I shall be ready to re-examine it with freedom and candor, and upon the best lights which may be then before me. For these reasons I dissent from the opinion of the majority of the court.