State ex rel. Boyd v. Rose

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEWING
Citation84 Mo. 198
PartiesTHE STATE ex rel. BOYD, Prosecuting Attorney, Appellant, v. ROSE et al.
Decision Date31 October 1884

84 Mo. 198

THE STATE ex rel. BOYD, Prosecuting Attorney, Appellant,
v.
ROSE et al.

Supreme Court of Missouri.

October Term, 1884.


[84 Mo. 199]

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Goode & Cravens and W. D. Hubbard for appellant.

(1) A private relator was not necessary, nor could one have properly been named. This is not a contest between two persons claiming title to an office, but a proceeding against defendants for pretending to exercise the duties of an office not in esse. An information ex officio and not ex relatione, is the proper procedure, and the circuit court had jurisdiction. State ex. rel. Hequembourg v. Lawrence, 38 Mo. 535; Hunter v. Chandler, 45 Mo. 452; State ex rel. Kempf v. Boal, 46 Mo. 528; State ex rel. Att'y Gen'l v. Vail, 53 Mo. 97; State ex rel. Att'y Gen'l v. Miller et al, 1 Mo. App. 48. (2) The facts stated in the information authorize the relief sought. One district can be merged in another. Thompson v. Bd., &c., 61 Mo. 176; Inhabitants, &c. v. Taft, 4 Gray 250; Alden v. Romesville, 17 Met. 218; Thompson v. Beaver, 63 Ill. 353; School Directors v. Trustees, &c., 66 Ill. 247; State ex rel. v. Searle, 50 Mo. 268; State ex. rel. v. Appleton, 53 Mo. 127.

Price & Travers for respondents.

(1) The facts of this case show that this proceeding is but a cover to a civil contest between adverse claimants to the office of school director in the territory referred to, and is not a proceeding in defence of the prerogative rights of the state by the constitutional writ

[84 Mo. 200]

of quo warranto, the territory involved being admitted to be organized, whether by the nominal designation of district number one, or of district number five; the proceeding should, therefore, have been instituted and prosecuted by a private relator under the provisions of chapter 60, Revised Statutes, entitled “Of Quo Warranto,” for the purpose intended, the object of the state being to decide between adverse claimants, but not lend her aid to one side or the other. See, also, State v. St. Louis Perpetual Insurance Company, 8 Mo. 330; State ex rel. Brison v. Lingo, 26 Mo. 496; State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; State ex rel. Young v. Briskirk, 43 Mo. 111; Hinton v. Chandler, 45 Mo. 452; State ex rel. Kempf v. Beal, 46 Mo. 528. High's Extraordinary Legal Remedies, section 591, p. 424; section 600, p. 432; section 603, p. 435; section 612, pp. 443, 444, and note 1. There being no proper relator for the object intended, the proceeding must be dismissed. (2) Our school law makes sub-school districts corporations, with usual powers for the purposes intended. It cannot be true, then, as a legal conclusion, that section 7023, Revised Statutes, authorizing the change of lines of school districts by their concurrent action intends that one district by the co-operation of the county school commissioner, can so extend its lines as to embrace and absorb another even with the consent of such other. School districts are...

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19 practice notes
  • State ex Inf. McKittrick v. Wiley, No. 37532.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1942
    ...General. State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. McCam, 81 Mo. 497; State v. Rose, 84 Mo. 198; State ex rel. v. Stafford, 97 Mont. 275, 34 Pac. (2d) 372; High on Extraordinary Legal Remedies (3 Ed.), secs. 712, 718; State ex rel. Harris v. M......
  • State ex Inf. Shartel v. Mo. Utilities Co., No. 31441.
    • United States
    • United States State Supreme Court of Missouri
    • October 5, 1932
    ...The Attorney-General has no right to maintain this action. State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; State ex rel. Boyd v. Rose, 84 Mo. 198; State ex inf. Killam v. Cons. School District, 277 Mo. 458, 209 S.W. 938; State ex rel. Otto, Attorney-General, v. Hyde, 296 S.W. 775; State ......
  • State ex rel. Young v. Kent
    • United States
    • Supreme Court of Minnesota (US)
    • November 17, 1905
    ...36 Mo. 279;State v. McAdoo, 36 Mo. 452;State v. Steers, 44 Mo. 223;State v. Bishop, 44 Mo. 229;State v. Townsley, 56 Mo. 107;State v. Rose, 84 Mo. 198;State v. McMillan, 108 Mo. 153, 18 S.W. 784. See, also, Short, Mand. 175; High, Ex. Rem. (2d Ed.) § 45, and cases cited. This has been the r......
  • State v. Duncan, No. 18659.
    • United States
    • Missouri Supreme Court
    • April 2, 1915
    ...to bring such a proceeding at all, absent a private interested relator, and not the form of his bringing action. State ex rel. v. Rose, 84 Mo. 198; State ex rel. v. Loan Association, 142 Mo. 325, 41 S. W. So also the practice is to style him who is called to answer the information in the na......
  • Request a trial to view additional results
19 cases
  • State ex Inf. McKittrick v. Wiley, No. 37532.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1942
    ...General. State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. McCam, 81 Mo. 497; State v. Rose, 84 Mo. 198; State ex rel. v. Stafford, 97 Mont. 275, 34 Pac. (2d) 372; High on Extraordinary Legal Remedies (3 Ed.), secs. 712, 718; State ex rel. Harris v. M......
  • State ex Inf. Shartel v. Mo. Utilities Co., No. 31441.
    • United States
    • United States State Supreme Court of Missouri
    • October 5, 1932
    ...The Attorney-General has no right to maintain this action. State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; State ex rel. Boyd v. Rose, 84 Mo. 198; State ex inf. Killam v. Cons. School District, 277 Mo. 458, 209 S.W. 938; State ex rel. Otto, Attorney-General, v. Hyde, 296 S.W. 775; State ......
  • State ex rel. Young v. Kent
    • United States
    • Supreme Court of Minnesota (US)
    • November 17, 1905
    ...36 Mo. 279;State v. McAdoo, 36 Mo. 452;State v. Steers, 44 Mo. 223;State v. Bishop, 44 Mo. 229;State v. Townsley, 56 Mo. 107;State v. Rose, 84 Mo. 198;State v. McMillan, 108 Mo. 153, 18 S.W. 784. See, also, Short, Mand. 175; High, Ex. Rem. (2d Ed.) § 45, and cases cited. This has been the r......
  • State v. Duncan, No. 18659.
    • United States
    • Missouri Supreme Court
    • April 2, 1915
    ...to bring such a proceeding at all, absent a private interested relator, and not the form of his bringing action. State ex rel. v. Rose, 84 Mo. 198; State ex rel. v. Loan Association, 142 Mo. 325, 41 S. W. So also the practice is to style him who is called to answer the information in the na......
  • Request a trial to view additional results

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