State ex rel. Ing v. McSpaden
| Citation | 39 S.W. 81,137 Mo. 628 |
| Parties | The State ex rel. Ing, Prosecuting Attorney, v. McSpaden |
| Decision Date | 20 February 1897 |
| Court | United States State Supreme Court of Missouri |
Judgment of ouster entered.
S. R Durham for relator.
(1) The circuit court of Wayne county, Missouri, has acquired no jurisdiction of the person of respondent, McSpaden, as she has never been served with a writ and no writ has issued from said court for service upon her. The practice in quo warranto is governed by the civil code. R. S. 1889, sec. 2013; Fenwick v. Gill, 38 Mo. 525; Burton v Deleplain, 25 Mo.App. 376; State ex rel. Brison v Lingo, 26 Mo. 496. (2) If the criminal practice applies as contended by respondents, this information must supersede the case in the circuit court. R. S. 1889, sec. 4102; State v. Eaton, 75 Mo. 586; State v. Vincent, 91 Mo. 665; State v. Anderson, 96 Mo. 245. (3) The statute is not directory, but expressly provides that the persons elected as school directors shall be qualified voters of the district. R. S. 1889, secs. 8086 and 7988. And they must possess the qualifications at the time of their election. State ex rel. Walker v. Rebeneck, 135 Mo. 340. (4) The contention of respondents Lee, Clore, and Bates, that their appointment was made from sheer necessity to enable the school population to receive the benefits of the public school, is wholly unsupported by the testimony, but on the contrary it is plain that they were appointed for the purpose of forcibly taking the control and management of the school from the legally organized school board. If their contention were true, then why the necessity of camping in the schoolhouse with guns and clubs and barricading the doors, etc. Under such circumstances their plea of guilty should not entitle them to the mercies of the court, but the court should teach them a lesson by inflicting a fine upon them in addition to the judgment of ouster. See sec. 7394, R. S. 1889.
J. C. Carty for respondent.
(1) This action, so far as respondent McSpaden is concerned, should be abated. The circuit court of Wayne county has prior jurisdiction, and its jurisdiction should not be disturbed. The leading general principle, as to concurrent jurisdiction, is, that whichever court of those having jurisdiction first acquires possession of a cause, will retain it throughout. Wells on Jurisdiction of Courts, sec. 156; Winn v. Albert, 2 Md. Chan. Dec., p. 54; Conover v. Mayor, etc., 25 Barb., p. 513, see p. 524; Claywell v. Sudderth, 77 N. C., p. 287; McCarthy v. Peake, 18 How. (N. Y.) Pr., p. 138; City of Pilot Grove v. McCormick, 56 Mo.App. 530. (2) It is not essential that the parties in one cause should be the parties in the other. "The court will take notice of the real parties to the suit." Ex'rs of Tate v. Hunter, 3 Strobh. Eq., p. 139; Warfield v. Davis, 14 B. Mon., p. 42; Merriam v. Railroad, 136 Mo. 145. (3) It is not essential that the actions should be the same in character and form. If they are intended to remedy the same wrong, or to enforce the same right, and have that effect if enforced, one is a bar to the other. Conover v. Mayor, etc., 25 Barbour, p. 513; French v. Neal, 24 Pick. 61, and cases cited; Wells on Res Adjudicata, pp. 10, 11, 12, and 13. (4) The test is whether a final judgment in one case would be res adjudicata to the other; and according to Mr. Bishop, the test as to whether a criminal prosecution is res adjudicata is, whether, if what is set out in the second indictment had been proved under the first there could have been a conviction; when there could, the second can not be maintained. 1 Bishop's New Crim. Law, sec. 1051, subdivision (6). (5) The jurisdiction of the circuit court of Wayne county attached upon the filing of the information therein. The code of civil procedure does not apply. In this respect the proceeding is criminal. City of Pilot Grove v. McCormick, 56 Mo.App. 530. Section 7390, Revised Statutes 1889, says: * * * "And when such information has been filed and proceedings have been commenced, the same shall not be dismissed." (6) The election of respondent McSpaden was valid. Mere irregularities or informalities will not be permitted to defeat the popular will, especially when acquiesced in by all parties concerned or interested. The acts of Clark prior to and on election day, were tantamount to a resignation, an abandonment of the office by him, and taken with the acts of the board, cured all defects, apparent from the record, in the title of respondent McSpaden to the office. Clark's acts would clearly estop him from asserting or claiming to be director, and the state is estopped to the same extent and with like effect as Clark. (7) Respondent McSpaden is eligible to the office of school director. Unless prohibited by the constitution, or the express terms of some statute, women are eligible for school directors. Opinion of Justices, 115 Mass. 602; In re Hall, 50 Conn. 131; Wright v. Noell, 16 Kan. 601. (8) No prohibition exists in the constitution, and no express mandatory provision of the statute renders women ineligible for school directors of city, town, or village districts. The statute relied on by relator (sec. 8086, R. S. 1889), is directory in its language, terms, and import. See sec. 8086; also, sec. 8085. (9) All statutes using affirmative language and having reference to the time, formality, or method of doing some public acts required to be done, will generally be regarded as merely directory, unless there be words making the thing done void, if not done in accordance with the prescribed requirements. 23 Am. and Eng. Ency. of Law, p. 471, and cases cited; City of Cape Girardeau v. Riley, 52 Mo. 424; West v. Ross, 53 Mo. 350; Sedgwick on Con. of Stat. and Con. Law, pp. 316, 317, and 318; State ex rel. v. Railroad, 113 Mo. 297. Statutes similar in language, terms, and import to section 8086, have been held to be directory. Foot v. Prowse, Major de Truro, 1 Strange, 625; St. Louis County Court v. Sparks, 10 Mo. 117, see p. 121. (10) The statute should be construed strictly in favor of respondent. The courts will, if they can, give effect to the verdict of a popular election. They are anxious rather to sustain than to defeat the popular will. 1 Dillon on Mun. Corp. [4 Ed.], sec. 168, and cases cited. (11) Municipal corporations should not be interfered with in their internal police and administrative government unless some clear right has been withheld, or wrong perpetrated. They are the germs of popular government. State v. Swearingen, 12 Ga. 23. (12) If strictly construed, and as to respondent McSpaden the statute should be strictly construed, section 8086 only applies to directors elected for a term of three years. This proceeding is criminal in its origin and no inference or liberal construction should be indulged in against the respondents. Exceptions, privileges, and exemptions are not favored by the law. State ex rel. v. Fisher, 119 Mo. 344. (13) Constitutional and statutory provisions should be construed, as far as possible, in favor of equality of rights, with a view to promote the public interests which are benefited by every legitimate use of individual ability. 19 Am. and Eng. Ency. of Law, p. 404.
Quo Warranto.
This is a proceeding, original in this court, to ascertain by what warrant defendants assume to act as directors of a school district in the city of Piedmont, in Wayne county. The action was begun by an information exhibited by Mr. Ing, the prosecuting attorney of that county. The defendants are Mrs. Lillie McSpaden and Messrs. Lee, Clare, and Bates. The defendants are charged with having taken forcible possession of a schoolhouse in Piedmont by virtue of their pretended offices, and to be usurping generally the powers of said offices.
The history of the unfortunate difference that gave rise to these proceedings need not be given at any great length. The defendants' counsel at the bar concedes that all of the defendants (except Mrs. McSpaden) are not entitled lawfully to act as directors; so the case is narrowed to a consideration of the official standing of Mrs. McSpaden.
We shall assume for the purposes of this hearing (though there is an issue on that point in the pleadings) that she was duly elected to the office of school director. The serious objection interposed to her exercise of the duties of the office is that she can not be permitted to hold the office, because of her sex.
On her part there is an earnest and able argument to show that the objection just mentioned is not valid. A further defense is based on the fact that a prior information in quo warranto was filed in the circuit court of Wayne county (long before the proceeding in this division of the supreme court was...
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