State ex rel. Brison v. Lingo
| Citation | 26 Mo. 496 |
| Parties | THE STATE, ON RELATION OF BRISON, Respondent, v. LINGO, Appellant. |
| Decision Date | 31 March 1858 |
| Court | United States State Supreme Court of Missouri |
1. A proceeding by information in the nature of a quo warranto is a civil and not a criminal proceeding; consequently, in the county of St. Louis, the circuit court may entertain jurisdiction thereof.
2. A power to remove from office necessarily includes a power to suspend from office.
3. By the thirty-fifth subdivision of the second section of the third article of the amended charter of the city of St. Louis, of March 3, 1851, (Rev. Ord. 1856, p. 139,) the mayor and city council were empowered “to regulate the election of all the elective city officers, and provide for removing from office any person holding an office created by this act or by ordinance, not otherwise provided for.” The seventh section of the fourth article of said charter contained the following provision: “The mayor shall have power to nominate, and by and with the consent of the board of aldermen to appoint, all city officers not ordered by this act to be otherwise appointed; also, to suspend, and with the consent of the board of aldermen to remove, any city officer except those elected by the people.” (Rev. Ord. 1856, p. 142.) Held, that the city council might, by ordinance, confer upon the mayor the power to suspend a city officer elected by the people.
Appeal from St. Louis Circuit Court.
The facts sufficiently appear in the opinion of the court.
Bland & Coleman, for appellant.
I. The court erred in striking out the demurrer to the quo warranto. The demurrer was well taken and should have been considered and sustained.
II. The court below, by overruling the motion for judgment, interposed by the relator to the plea of appellant, adjudged and determined judicially that such plea was a good
answer to the proceedings on the part of the relator. That judgment and determination was in force at the time of the rendition of the judgment of ouster and is still in force. The judgment of ouster was subsequent to and in direct conflict with the judgment rendered upon the motion for judgment. It should not be allowed to stand. (See McAdams v. McHenry, 21 Mo. 413.)
This proceeding was an information in the nature of a quo warranto, prosecuted in the circuit court of St. Louis county by the circuit attorney of that circuit, in the name of the state, at the relation of Brison, against the defendant, for unlawfully exercising the office of superintendent of the work-house of the city of St. Louis. It was alleged that the defendant had been duly elected to said office, and the term for which he had been elected had not then expired, but that the mayor of the city had suspended him from office and appointed the relator in his stead pursuant to the provision of the charter and ordinances of the city; and that the defendant had refused to obey the order suspending him from office. The ordinances and acts of the mayor in the premises were set out at length.
It appears from the record that the defendant appeared and filed a demurrer to the information, to which there was a joinder, and the demurrer being heard by the court it was ordered that the same be stricken from the files, and leave was given defendant to plead. The defendant thereupon filed a special plea to the information and also an answer The plaintiff then filed a motion for judgment notwithstanding the plea and answer, and the answer being withdrawn by the defendant the motion was overruled and leave given to the plaintiff to reply or demur. A demurrer was then put in to the plea, which was sustained and judgment given on the demurrer.
The first objection made is to the jurisdiction of the court. The statute of 1845, concerning writs of quo warranto,confers jurisdiction on the circuit courts; but it is said that the jurisdiction in such cases is taken from the circuit court of this county by the act creating the criminal court (R. C. 1845, p. 318, § 3), which declares that “the circuit court of St. Louis shall not hereafter exercise original jurisdiction in any criminal case,” &c. and the inquiry then arises, is this a criminal case? Formerly a quo warranto information was a criminal proceeding, but for a great while it has been applied to the simple purpose of trying a civil right, and regarded as a remedy to try the right to an office; it is the nature of a civil proceeding, and is now so held, though criminal in some of its incidents.
We do not understand why the court, after considering the de...
To continue reading
Request your trial
-
The State ex rel. McEntee v. Bright
...necessarily includes the power to suspend pending the hearing of the charges. State v. Police Commission, 16 Mo.App. 48; State ex rel. v. Lingo, 26 Mo. 496; Westberge v. City of Kansas, 64 Mo. Blackwell v. City of Thayer, 101 Mo.App. 661. (7) The statute provides that the mayor and a majori......
-
The State ex inf. North Todd Gentry v. Toliver
...to the acts and judgments of all courts of record having jurisdiction of the subject-matter of such acts or judgment." In State ex rel. Brison v. Lingo, 26 Mo. 496, also cited Judge Ellison in the Simmons case, the mayor of the city of St. Louis had suspended Lingo from the office of superi......
-
State ex rel. Broatch v. Moores
... ... [N.Y.] 102, note; State v ... Hardie , 1 Ired. Law 42, 48; State Bank v ... State , 1 Blackf. [Ind.] 267, 272; State v ... Lingo , 26 Mo. 496, 498.) In some of the states, however, ... it has been treated as criminal in form, and matters of ... pleading and jurisdiction ... ...
-
State ex rel. Broatch v. Moores
...385;People v. Richardson, 4 Cow. 102, note; State v. Hardie, 23 N. C. 42, 48; State Bank of Indiana v. State, 1 Blackf. 267, 272;State v. Lingo, 26 Mo. 496, 498. In some of the states, however, it has been treated as criminal in form, and matters of pleading and jurisdiction governed accord......