
    The State ex rel. Harris v. McCann, Appellant.
    
    1. Justices of Peace, Election of: Revised Statutes, section 2807. The effect of the enactment of Revised Statutes, 1879, section 2807, in reference to the election and terms of office of j ustices of the peace was to supersede and repeal all prior statutes authorizing- the election of such officers prior to the general election in, November, 1882, and any election so held in contravention of said section of the statute was void. (Re-affirming The State ex rel. the Circuit Attorney v. McCann, 81 Mo. 479)..
    J. -. The appointment and commission of respondent as a justice of the peace by the mayor of the city of St. Louis, held to be of no validity, because there was no vacancy to be filled.
    3. Quo Warranto : office : burden of proof. In a quo warranto proceeding against one for usurping an office, the burden is on the latter to show title thereto.
    4. ---: return, sufficiency of. The return in such proceeding for usurping the office of justice of the peace, is insufficient if it fails to show that the respondent qualified under the appointment by virtue of which he claims the office.
    
      Appeal from St. Louis Court of Appeals.
    
    Affirmed.
    
      John J. McCann for appellant.
    (1) Substantially the whole return is confessed and avoided. It pleads simply Us pendens. Long v. Long, 79 Mo. 644. (2) The return sufficiently shows that Mc-Cann qualified as a justice of the peace. R. S. secs. .2815-16. (3) The removal by such officer of his office or place of holding court out of the district for which he was elected or appointed is ipso facto a vacation of it. R. S. secs. 2806, 2833-4. (4) The power to fill a vacancy implies the right of the officer to whom it is given to determine when a vacancy exists. State ex rel. v. Seary, 64 Mo. 98. (5) There is no authority for the proceeding here invoked. State ex rel. v. Boal, 46 Mo. 529 ; Stale, ■etc., v. Lawrence, 38 Mo. 535 ; State, etc., v. Stewart, 32 Mo. 379.
    
      P. A. B. Garesche for respondent.
    The title to the office under and by virtue of the election and qualification in November, 1880, being void and it not being alleged ih the respondent’s return nor proved at the trial that respondent qualified under the ■commission issued to him in June, 1881, judgment of ■ouster should have been rendered against him. State ■ex rel. v. Vail, 53 Mo. 107; High on Extra. Rem., secs. 629, 716 ; Larlte v. Crawford, 28 Mich. 88 ; State r. Gleeson, 12 Fla. 190 ; State v. Ashley et al., A Ark. (Pike) 513; ■Clarhx. The People, 15 111. 217; Plynn v. Abbott, 16 •Cal. 364. There is no sufficient allegation in respon•dent ’ s return, nor do the facts appear in evidence of an abandonment, or of the' fact that there was such a vacaney as authorized the mayor to appoint respondent to the office of justice of the peace for the fifth district of the city of St. Louis. Const, of Mo., Art. 11, sec. 30 ; Honey v. Graham, 39 Texas, 9; Page x>. Harden, 8 B. Monroe, 669 ; State ex rel., etc., v. Ralls Go., 45 Mo. 58; Kouns v. Draper, 43 Mo. 227.
   Ray, J.

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, papers, etc., of said office, and thereupon ceased to have any office, or place of holding court within said district, and removed his office from said district, and entirely .abandoned said office of justice of the peace for said district ; that, thereafter, this respondent continued to discharge the duties of said office, by virtue of said election, commission and qualification, until the fourth of •June, 1881, when there being a question about the validity of his title to said office, and whether there was a vacancy in said office, the mayor of the city of St. Louis, in order to remove all question as to the validity of respondent’s title to said office, did appoint him as justice ■Of the peace for said district, until the general election in 1882, and did issue to respondent a commission authorizing him to hold said office, daring said term. Respondent says that he holds said office of justice of the peace, for said district, by virtue of his said election, in November, 1880, and his commission and qualification thereunder, as well as by his said appointment and commission by the mayor of said city, in June, 1881, as afore■said.

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 appealed to this court. A synopsis of the case is reported in 13 Mo. App. 588, and the opinion, at length, is; set out in the record before us.

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 of these facts ? In onr opinion he has not. He does, in-* deed, show that under his election to the office, in 1880, Mullery, acting under the advice of the city counsellor and others, surrendered the records of the office to him. But the testimony indicates that Mullery, in doing this, simply acted in good faith, but under the mistaken opinion that respondent had been elected to the office at a valid election. As soon as he found reason to change his opinion he set on foot the prosecution of both of these proceedings to oust the respondent from the office, and he testifies that he intended at .no time to abandon it. We are, therefore, of opinion that at the time of the appointment of this respondent, in June, 1881, the title to the office was in Mr. Mullery ; that there was no vacancy'to fill, and that the appointment was hence void. But if we are ■wrong in this, there is another ground on which, in our opinion, the circuit court should have given judgment of ouster. It is not set out in respondent ’ s return, and it nowhere appears, that the respondent ever qualified under this appointment of the mayor. He has, therefore, in point of fact, never held the office under it, and the defence which he makes, therefore, amounts to no more than the defence which he made to the former action. It is too plain for argument that an appointment and commission to the office of justice of the peace give the appointee no right, unless he qualifies by taking the oath of office, and causing the same to be recorded as required by sections 2816 and 2817 of the Revised Statutes. The failure to do this, is deemed a refusal of the appointment, and by section 2820, a person so commissioned is forbidden to act until his commission shall have been so recorded by section 2821, a penalty is imposed for so doing. It nowhere appears that this has been done by the respondent since he received the appointment and commission from the mayor.”

’ In these views of the court of appeals we concur, and for these reasons, and others hereinbefore stated, we affirm tlie judgment of that court, reversing that of the circuit court, and awarding judgment of ouster against the respondent.

All the judges concur.  