Hunter v. Chandler

• Decision Date: 28 February 1870
• Citation: 45 Mo. 452
• Parties: JAMES HUNTER, Appellant, v. JEFF. CHANDLER, Respondent.
• Court: Missouri Supreme Court

45 Mo. 452

JAMES HUNTER, Appellant,

v.JEFF. CHANDLER, Respondent.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Bassett, Hunter & Gilbert, for appellant.

I. The plaintiff being entitled to the office, and the defendant, a stranger, taking its fees by usurpation, plaintiff is entitled to recover damages in an action at law. (Powell v. Millbank, 1 T. R. 399; Boyten v. Dodsworth, 6 T. R. 681; Allen v. McKean, 1 Sumn. 317; Glasscock v. Lyon, 20 Ind. 1; 3 Blackst. 102, ¶ 5; 1 Chit. Pl. 100; Chit. on Cont. 640; Oliver's Precedents, 105.)

II. If the defendant, by his resignation, could prevent a judgment of ouster, and if the consequence of that prevention is a defeat of this action, the rights of the plaintiff might be defeated at the will of the wrong-doer. (Boyten v. Dodsworth, supra;Allen v. McKean, supra; Powell v. Millbank, supra; 1 Tanner, 113; Howard v. Wood, 2 Lewis, 245; 20 Ind. 1; 1 S. N. P. 81; 23 U. S. Dig. 429; 1 Chit. Pl. 112.)

Hall & Vories, for respondent.

I. Plaintiff's right can not be established except by direct proceeding in the nature of a quo warranto. (21 Pick. 148-155; 6 Cow. 23; 17 Iowa, 525; 17 Conn. 585; 9 Johns. 147; 42 Mo. 180; 38 Mo. 544; 35 Mo. 146; 36 Mo. 71; 34 Mo. 395.)

II. A writ of quo warranto, brought within the time of an office, may be tried after the term has expired. (24 U. S. Dig. 545, §§ 6, 9; 8 Wend. 396; 12 Mich. 508; 45 Penn. St. 59.)

III. An information in the nature of a quo warranto will not lie, except brought by the government. (4 Curtis, 632; Wallace v. Anderson, 5 Wheat. 291.)

WAGNER, Judge, delivered the opinion of the court.

As this case was determined in the case below on demurrer, it will be necessary to look into the petition to see whether it sets out a cause of action. The plaintiff states in his petition that during the most of the year 1865, and also in the year 1866, up to the first of April, he was city attorney for the city of St. Joseph, duly elected and qualified, so as to be entitled to the accustomed fees and emoluments of the office for the whole time mentioned; that about the first day of April, 1866, the defendant, without plaintiff's leave or authority, usurped and intruded himself into said office, and from the time last mentioned until about the last of March, 1867, defendant continued to usurp and intrude himself into said office, during all of which time he continued to receive the accustomed fees and emoluments thereof, to and for the use of the plaintiff; that plaintiff was the only lawful city attorney during the time last before mentioned, and the only person entitled to discharge the duties and receive the emoluments of the office.

It is further averred that at the March term, 1867, of this court, the attorney-general of the State exhibited an information in the nature of a quo warranto, in the name of the State and upon his own relation, charging the defendant with usurping and intruding into the said office, and asking that he be ousted therefrom; that thereupon the defendant, in order to avoid a judgment of ouster, did immediately vacate the office and resign all right to the same; and that when the case came on to be heard, defendant disclaimed that he was holding said office, or was in possession thereof, and presented his resignation, duly approved by the mayor of St. Joseph; and that in consequence of said resignation, the attorney-general took no further steps with the case.

The petition then alleges that the defendant, whilst so exercising the duties of the office, received fees and emoluments accruing therefrom to the amount of $3,000, and judgment is asked for that sum. This petition was demurred to, and demurrer sustained. Whether the defendant resigned and vacated the office to avoid a judgment of ouster, at the instance of the State, is not material as regards the rights of the plaintiff. The information was by the attorney-general, on behalf of the State, to protect the public against usurpation and intrusion; and in such a proceeding the private rights of a third party claiming the office are not determined or passed upon. The State, acting through its law officer, does not establish the rights of private persons to an office; it only maintains its own dignity and protects the public interests by ousting those who usurp or intrude into office and unlawfully exercise its franchises. Where a private person wishes to have his right to an office adjudicated, the statute points out the course to pursue. It provides that the information shall be prosecuted at his relation, and shall be proceeded upon in such manner as is usual in cases of a quo warranto. (2 Wagn. Stat. 1133, § 2.) As the proceedings generally raise questions of fact, and the parties have an ample remedy in the Circuit Court, and this court being chiefly an appellate tribunal, it will refuse, except under peculiar circumstances, to allow an information to be filed to inquire into the title of a private person to an office. (State v. McIlhanay, 32 Mo. 379; State v. Lawrence, 38 Mo. 535; State v. Buskirk, 43 Mo. 111.) Had the attorney-general proceeded with the information filed by him to a final determination, the judgment would have fixed the rights of the defendant to the office, but not those of the plaintiff. The plaintiff was no party to the record, the information was not at his relation, and his title could not have been passed upon.

But the resignation of the incumbent, or even the termination of the office, would not prevent the information from being prosecuted to a final judgment if the proceedings were commenced prior to the resignation or the expiration of the term. (Commonwealth v. Smith, 45 Penn. St. 59; People v. Hartwell, 12 Mich. 508.) The law will not permit the ends of justice to be defeated at the mere volition of a party who seeks to elude its judgments by changing his condition for his advantage. I think, therefore, that an information in the nature of a quo warranto, to try the right to a public office, may be tried after the term has expired, or the officer holding has resigned, if the information was filed or proceedings begun before the resignation took place or the term had expired. The question has been mooted whether an action of this character was maintainable. About this I have no doubt. The authorities abundantly establish the principle that an action for money had and received will lie in favor of a person really entitled to an office, against one who has usurped and intruded into the same, for the recovery of the known and fixed fees that such intruder may have received. (Glasscock v. Lyon, 20 Ind. 1; Powell v. Millbank, 1 T. R. 399, note; Boyten v. Dodsworth, 6...