State ex rel. Fox v. Alt

• Decision Date: 04 June 1887
• Parties: THE STATE EX REL. EDWARD P. FOX, Appellant, v. HENRY ALT, Respondent.
• Court: Missouri Court of Appeals

26 Mo.App. 673

THE STATE EX REL. EDWARD P. FOX, Appellant, v. HENRY ALT, Respondent.

Court of Appeals of Missouri, St. Louis.

June 4, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

GIVEN CAMPBELL and WILLIAM B. THOMPSON, for the appellant: The tenure of the office of Speaker of the House of Delegates is one year. Charter of St. Louis, art. 3. The right to preside over the House is a franchise. Dillon Mun. Corp., sect. 272; Ang. & Ames on Corp., chap. 12, sect. 6, p. 416.

LEVERETT BELL, for the respondent.

OPINION

THOMPSON J.

This is an information in the nature of a quo warranto, requiring the respondent to show by what authority he claims to hold and exercise the office of Speaker of the House of Delegates of the city of St. Louis, and to show cause, if any he has, why judgment of ouster should not be rendered against him. The information is brought by the circuit attorney of the eighth judicial circuit, upon the relation of Edward P Fox, who claims to have been illegally ousted from the exercise of the functions of the office by the respondent. The circuit court overruled a demurrer to the respondent's return, and, afterwards, the petitioner filed an answer to the return, all of which, except so much as traversed the return, was, by the court, stricken out on motion. The relator excepted to this ruling, but the exception was not renewed in his motion for new trial, nor is it assigned for error in this court. The propriety of the ruling is, therefore, not presented for review upon this appeal.

After this ruling the cause went to trial upon the issue made by the return, and the traverse thereof contained in the answer. The court proceeded to try the cause without a jury according to the rule laid down in The State ex rel. v. Lupton (64 Mo. 415); heard a voluminous mass of evidence, refused three instructions tendered on behalf of the relator, and decided the case, upon conflicting evidence as to the facts, in favor of the respondent, dismissing the suit.

Although our supreme court, in the case just cited, held, contrary to the rule which generally prevails in other jurisdictions that a jury is not demandable as of right in this proceeding, it none the less remains that it is a proceeding at law, originally in the nature of a criminal proceeding, though now regarded as of a civil character (The State ex rel. v. Vail, 53 Mo. 97; The State ex rel. v. Lupton, 64 Mo. 415); and, it being in the nature of an action at law, we have no power to re-try the facts on this appeal, but must hold that the determination by the court of the issues of fact, raised by the return, and the answer traversing the same, is conclusive, there being substantial evidence to support the court's finding.

That finding, in substance, was a finding of the truth of the facts stated in the return; and, consequently, much of the argument presented in this court in behalf of the relator is directed against the sufficiency of the return. The facts thus found, substantially, were, that the House of Delegates being in session, with Mr. Fox, the relator, in the chair, exercising the office of Speaker, to which he had been duly elected, a motion was made to adjourn, which was, by the speaker, put to a viva voce vote, and by him declared to have been carried; whereupon he and some of the members left the hall, thus preventing an appeal from his decision, which was demanded; that the meeting was not adjourned in point of fact; that fourteen of the members remained in the hall, refusing to accede to the ruling of the Speaker; that another member afterwards came in, making fifteen members present altogether; that this number was a majority of all the members of the House of delegates, and constituted a quorum for the transaction of business; that this quorum thereupon proceeded to remove Mr. Fox, the relator, and elect Mr. Alt, the respondent, as Speaker of the House of Delegates, in the place of Mr. Fox. These facts show that the respondent was not usurping the office of Speaker, but that he was holding it in pursuance of the will of a majority of the members of the House of Delegates, expressed at an election at a regular meeting.

This election was valid and vested in the respondent a perfect title in the office, unless the position be a sound one, that the House of Delegates could not remove its...