State ex inf. Anderson v. Moss

• Decision Date: 01 February 1915
• Docket Number: No. 11367.,11367.
• Citation: 187 Mo. App. 151,172 S.W. 1180
• Parties: STATE ex inf. ANDERSON, Pros. Atty., ex rel. BOOTHE v. MOSS.
• Court: Missouri Court of Appeals

172 S.W. 1180

187 Mo. A. 151

STATE ex inf. ANDERSON, Pros. Atty., ex rel. BOOTHE v. MOSS.

No. 11367.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

1. MANDAMUS (§ 74) — QUO WARRANTO (§ 10) — CANVASS OF RETURNS OF ELECTIONS — FAILURE OF OFFICERS TO ACT — REMEDY.

The remedy of one elected to the office of alderman of a city of the fourth class for the failure of the board of aldermen to meet in special session and canvass the returns and certify the result, pursuant to an ordinance authorized by Rev. St. 1909, § 9302, is by mandamus to compel the board to act, and not by quo warranto to oust the incumbent.

2. QUO WARRANTO (§§ 10, 48) — NATURE OF REMEDY.

The office of quo warranto is to oust a usurper from a public office, and an information at the instance of a private person to oust an incumbent and obtain possession of an office must state facts showing that he is entitled thereto.

3. MANDAMUS (§ 74) — PERFORMANCE OF "MINISTERIAL DUTY" — CANVASS OF RETURNS OF ELECTION.

The duty of the board of aldermen of a city of the fourth class to meet in extra session, canvass the returns of an election, and certify the result, as required by an ordinance enacted under Rev. St. 1909, § 9302, is ministerial, and mandamus lies to compel its performance.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Quo warranto by the State, on the information of E. C. Anderson, Prosecuting Attorney, at the relation of P. A. Boothe, against T. D. Moss. From a judgment for defendant, relator appeals. Affirmed.

Fry & Rodgers, of Mexico, Mo., for appellant. Arthur Bruton, of Centralia (Don C. Carter, of Sturgeon, of Counsel), for respondent.

JOHNSON, J.

This is a proceeding in the nature of quo warranto prosecuted in the name of the state, on the information of the prosecuting attorney of Boone county, and at the relation of P. A. Boothe. The object of the proceeding is to oust respondent from the office of alderman in Sturgeon, a city of the fourth class in Boone county, and to install relator in that office. A demurrer to the information was sustained on the ground that quo warranto is not the remedy available to the relator under the pleaded facts, and, on the election of relator to stand on the information, judgment was rendered for respondent.

The alleged facts are as follows: Boothe and Moss were rival candidates at a regular city election held April 7, 1914, for the office of alderman, of which Moss was the incumbent, entitled to hold over until his successor was elected and qualified. The returns of the election certified by the judges to the mayor disclosed that Boothe had received 44 and Moss 42 votes. The ordinances of the city made it the duty of the mayor, immediately after receiving the certified returns, to call an extra session of the board of aldermen, which consisted of four members, and the duty of the board at such session was to canvass the returns and certify the result to the city clerk, who then was required to issue a certificate of election, signed by the mayor to the candidate certified as having received the highest number of votes. The mayor called the extra session for April 11, 1914, at 7:30 p. m., and had notice thereof duly issued and served on the members of the board, but three of the members, including respondent, failed to appear, and there was no quorum at the meeting. The mayor and one member attended, and, proceeding as though a quorum were present, canvassed the returns certified by the judges of the election, and certified the result to the city clerk, who thereupon issued a certificate of election to relator. After taking the oath of office, relator attempted to take his seat, but the board refused to receive him as a duly elected and qualified member, and permitted respondent to continue in the discharge of the duties of the office. It is alleged that this situation was the result of a conspiracy among the three members who failed to appear at the extra session, and who constituted a majority of the board, to keep respondent in office by preventing a canvass of the election returns by the board and a certification of the result to the clerk.

For the purposes of the present inquiry, the truth of the allegations we have stated is confessed by the demurrer, and it is proper to observe that the facts thus admitted show beyond question that relator is entitled to relief. The question for our solution is whether or...