(dissenting).
We respectfully dissent from the conclusion just announced.
Without discussing other features of the case, or •attempting elaborate argument of our propositions, we desire to place on record two of the reasons which seem to us to present barriers to the judgment of the majority of the court.
1. As the statutes governing election contests authorize the holder of a certificate of election to retain his office “until the contest shall be decided,” and per-: mit an appeal from a circuit judgment in such cases, we consider that a duly perfected appeal (with statutory *597bond) is plainly intended to produce a stay until the contest can be decided in the appellate court. Eevised Statutes, 1889, sections 4707, 4744, and 8611. We hold that the contest is not “decided” while such an appeal is pending and undetermined. Our reasons for that opinion are stated in State ex rel. Craig v. Woodson, (1895), 128 Mo. 497 (31 S. W. Rep. 104), a prohibition proceeding, growing out of the same contest. We need not repeat them.
2. The sufficiency of the facts on which a commitment for contempt is founded may be tested by the writ of' habeas corpus in this state, as our statute has given that summary mode to review proceedings of that nature. Eevised Statutes, 1889, section 5378.
It appears that the petitioner, on the day his application was denied by a majority of the supreme court, was cited by the circuit court to appear at 2 p. m. to show cause why, pending his appeal in the main case, he should not be punished for contempt in failing to ■deliver to Mr. Nash, contestant, the office in controvery, together with all the records of that office.
The petitioner was allowed two and one half hours to make return to the citation. He did so, stating the facts as to the condition of the prohibition proceeding, and claiming that as the supreme court had allowed him a definite time (not then expired) to file a motion for rehearing, its decision in that case was not yet a finality.
He further returned, as a reason why he should not be punished, that Mr. Nash had not qualified to take the office, as required by section 1966, Eevised Statutes, 1889.
The circuit court held his return insufficient, and, after some discussion, upon petitioner’s declining to voluntarily surrender possession to Mr. Nash, the court adjudged petitioner to be guilty of contempt, fined him *598$100, and ordered Mm committed to the county jail for ten days.
The court further ordered the sheriff to eject the petitioner from the office in question, to take possession of the office, to put Mr. Nash into possession thereof,, and to make immediate return to that order.
It is against the warrant issued on this order that petitioner complains. He seeks to be set at liberty from the imprisonment to which the order condemns, him.
The material parts of the section relied on by petitioner, on this branch of the controversy, are as follows:
“Sec. 1966. Clerk to give bond — conditions of bond. — Every clerk, before he enters on the duties of his. office, shall enter into bond, payable to the state of Missouri, with good and sufficient securities, who shall be residents of the county for which the clerk is appointed or elected, in any sum not less than $5,000, the amount to be fixed and the bond.to be approved by the court of which he is clerk, or by a majority of the judges of such court, in vacation. The bond shall be conditioned that he will faithfully perform the duties of his office, and pay over all moneys which may come to his hand by virtue of his office, and that he, his executors, or administrators, will deliver to his successor, safe and undefaced, all books, records, papers,, seals, apparatus, and furniture belonging to his office.”'
It appears from the record before us, and the fact is not denied, that Mr. Nash had not given the approved bond required by this section preliminary to his entering the office.
The county court had refused to accept or approve his proffered bond. Why it refused does not appear. It may have considered, as do we, that the pending appeal precludes a change of officers “until the contest shall be decided;” that is to say, “decided” by the *599court having final authority to decide it, and whose jurisdiction has attached to the cause by virtue of the appeal, with bond.
It may have considered the sureties insufficient.
Whatever the grounds for the county court’s refusal, its action can not correctly be held to amount to an approval of the bond, or to justify Mr. Nash in taking possession of the office without a bond, in the teeth of the statute'above quoted. Sec. 1966,
In the absence of proof to the contrary, we should presume that the action of the county court was induced by a sound discretion. It will not do to assume, as our learned brother Gantt appears to intimate, that the county court acted “without reason or law,” and “arbitrarily refused to pass upon the bond.” If such was the fact, the remedy would not be found in pushing Mr. Nash into the office without any bond to secure to the public the faithful performance of his duties.
Legal steps might be taken to compel a proper approval of the bond, but that approval could not be dispensed with merely to hasten a change of incumbents of the office.
It appears to us that until Mr. Nash has given bond, approved as required by law, he is not in position to demand of Mr. Craig immediate possession of the office. In that state of the case, Mr. Craig could not properly be held guilty of contempt in not giving the office and its public documents to Mr. Nash. On the contrary, Mr. Craig, in such circumstances, was entitled to remain in the office by virtue of his commission, until, at least, Mr. Nash, the contestant, had fully qualified according to law to enter on his duties. Under the constitution and the law, until Mr. Nash qualified, Mr. Craig was rightfully in the office. Const. 1875, art. 14, sec. 5.
*600We are, therefore, of opinion, that the petitioner is not guilty of any contempt, and should be discharged from imprisonment.
Brace, C. J., and Robinson, J., join in this dissent.