Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1882-01-07

l
ceive q majority OF the legal votes
cast at SAID election.
Relator asks that the above quoted
part of respondents return aud an
swer be stricken out, because |,
First-Atter the cify council had
me: and canvassed the election re-
turn, aud ascertalued from I! q re-
turns " ho was eler.e'I, the functions
of the council IN thai behalf was fully
performed, and the council could not
90 into AL examination OF the ballots
aud decide upon the qualification of
electors.
Ordinances concerning eiections-I
Revised Ordinances. page 1O2, sec
tinn 5.
SecoMd-Because it sppears from
the certificate aMd return Of the
judges Of the election, as set forth In
the respondents return aud answer,
that Turner had $50 votes and Clagett
389, amt from the returns Turner had
. majority, yet the council, without
the semblsuce Of legal authority.
threw out one vote in order to re-
duce Turner's vote to q level with
Clagett's. The council then, on q
trial Of the election contest, declared
a tie vote aud ordered q new election.
Turner having already been com.
missioned aud then being In tie dis
charge of his official duty as register.
Even had there been a tie vote,
really Turner would lhave heidi the
Office till his successor, was elected
and duly qualified, Turner having
held the Office for the previous term
aud being his own successor.
Third-Because the council had no
power to try all election contest III |
this csse. All the power ever pos
sessed by the council to try contested
[electionl 10 contained in section 8. arr
Iicle 2,of the city charter, which reads
ss follows: "Whenever the election
OF any officer 10 Q ,ntes,ed the council
shall dermine the same by q major
ity vote of the members present"
That provision of the charter was
abrogate' by the last constitution of
Missouri; and at the time the couM.
Gil assucd Jurisdiction Of the elec-
ton contest OF Clage,t against Turner
the council had no jurisd ctlon over
the subject matter OF contested elec-
tons, nor over the person of Henry
Turner, but the council, notwith-
standing the fact that the returns
show q majority for Turner, took
Jurisdiction Of the matter, snd in-
stead OF deciding for one er the other
| of the parties the council declared .
tie vote aud ordered a new election.
which the council could not legally
do. The on:y contingency In which the
G ,uncil can order q new election Is
when Judges OF tho election snail oerti-
fy to the council that two or more per-
sons have received an equal number OF
votes; the conncil then shall order q
new election Immediately (Section 9,
article II. city charter) In this case
the Judges of election never certified q
tie vote between relator and respon-
dent; aud further, said matter moved
to be stricken ont 10 irrelevant and re-
dLndspt.
Relator moves the court to strike out
OF respondents return and answer the
additional parts thereof herein quoted.
Respondent says that relator has violst-
cd aud broken the above provision OF
said charter, and has been, and isn now,
and was at the date OF said election,
defaulter to the said city in this; that ir
June, 1876. one Joseph o. Terry, be-
came the successor in the Office OF city
register OF relator Turner; that though
ordered and required by the city coun.
Gil and the city ordinances and charter
OF said city to settle and to turn over to
the said Joseph b. Terry all books,
!. papers, records, city seal and other
property belonging to the said city oil
Lexington, the said Henry Turner TAIL
cd, neglected aud refused to so settle
or TO turn over to said Terry
any books, papers, seal, records
aud other property in his hands
as repister aud ez.oftcio treasurer,
whereby he became defaulter to said
! city, aud ineligible to said Office or
{ auy other Office under said city, at the
city election in June, 1880 that said
: defalcation is q matter Of public re.
S cord, as shown by the proceedings
! aud records of the city council, and
public notice thereof was frequently
given by the newspapers Of ssld city
Q so that the same was matter Of pub
Q lie notoriety, aud ut .Aid election IL
!, June. 1880, the citizens of Lexington
had both actual aud constructive no
: tice that said Turner was not eli
gible to said Office, SO that all voteI
j cast for him were not only illegal and
I; void, but the only legal aud valiC
. votes were those cast for respondent
l who thereby, by reason of the prem
3 ises last aforesaid, was elected to sait
: Office of register aud ez oftcio treas
Q urer OF said city, and Is thereby tht
y now legal register and ez oficio treas
l ursr thereof.
Relator asks that the matter abov,
9 quoted be stricken out of respondent
. return and answer, for the reason
:, that the return and answer fails to alleg,
any facts that constitute relator do
!. faulter, 40 that term 10 defined BY tn,
= city charter. Section 4 OF article II, o
y the city charter, provides, That an,
. person shall be considered defaulte
" who has refused or neglected, or ma,
4 refuse or neglect for thirty days atte
= demand made to account for and pa,
= over to tho party authorized to recetv1
= the same. anv public money which ma,
- have come into his hands," There i
! no charge or allegation that relator tail
!, ed to pay over any public money whicl
q may have come into his hands, ant
4 hence he is not q defau,ter. and sal,
matter Is irrelevant aud redundant. Re
!. lator moves the court to strike out iron
a the respondents return the additiona
!, and further parts hereinafter copied, q
:, :, follows:
e And for further and separate auswe
r and return, the respondent states that b.
+ is in the possession of said Office by vir
tue of the judgment and decision OF th'
=. circuit court of Lafayette county, Mis-
:. souri,, which 10 unappealed from and un
:. reversed; that respondent, on the - da,
f OF December, 1880. filed his application
:. for a mandamus against James NJ
: Crowder, the city collector OF said city
= OF Lexington, to compel lhiml to pa,
to the respondent. as city treasurer. al
4 the city money IN his hands; that il
IS said SUIT relator appeared by permission
q OF court, by counsel and at bis instanc
,. and reqaest, the court went into an ex
d animation OF the rights of both relate
q and respondent to said Office. and to wht
;. Was the legal register and ez of,eil
n treasurer OF said city; and that upol
d such examination the court found an,
# declared that respondent was the lsga
/, registerI and treasurer OF said city
d legally entitled to discharg,: all the du
h ties OF said Office, and ordered that th,
# revenues oi the city be paid over to him
a which has been done; wherefore re
e spondent says tho circuit court havinI
is gone into an examination OF satd on th'
"a motion OF relator. as aforesaid, and th
n revenue of the city having been pai'
It over to respondent under said judg
4 ment, relat"r Turner Ia estopped iron
Y denying that respondent Clagett Is th
af legal register and treasurer OF said city