State ex rel. Kempf v. Boal

• Decision Date: 31 October 1870
• Citation: 46 Mo. 528
• Parties: THE STATE OF MISSOURI ex rel. KEMPF, Respondent, v. WILLIAM BOAL, Appellant.
• Court: Missouri Supreme Court

46 Mo. 528

THE STATE OF MISSOURI ex rel. KEMPF, Respondent,

v.WILLIAM BOAL, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Orrick & Emmons, and King, for appellant.

I. This information, although exhibited by the circuit attorney, is not in the nature of a criminal proceeding, but is brought at the relation of a private person for the purpose of determining a matter of private right between two persons claiming the same office, and is therefore essentially a civil proceeding. (State ex rel. Hequembourg v. Lawrence, 38 Mo. 535.) And being a civil proceeding, it is not sufficient for the relator to aver that the defendant in the information might by some possibility not be entitled to hold the office in question, but he must also aver that the relator possesses all the qualifications required by law, and that he was duly elected to the office. Eligibility and election are necessary to establish title to the office. In the present case the relator has made no averment of eligibility to the office in question. He simply avers that he possessed one of the requisites; that is, that he had taken the oath of loyalty. “Relators, on application for a quo warranto against intruders into office claimed by relators, must show title in themselves.” (Miller v. English, 1 N. J. 317.)

II. The enactment that writs of quo warranto may be issued on the suggestion of any person desiring to prosecute the same, means any person having an interest to be affected. (Common-wealth ex rel. McLaughlin v. Cluley, 56 Penn. St. 270.) The proceeding by information in the nature of a quo warranto, at the relation of a private person claiming an office, contemplates a judgment in favor of the relator as well as against the defendant, where title is shown in the relator. (State ex rel. McCune v. Ralls County Court, 45 Mo. 58.) The petition or information fails to show any title in the relator, and the demurrer, therefore, ought to have been sustained.

Bruere & Kingsbury, for respondent.

I. The whole scope and end of these proceedings is to ascertain by what warrant the defendant occupies the office of director in said school district, and, if that is found insufficient, to oust him. The proper incumbent, if there is one in existence, will then find the path unobstructed to the attainment of his right for the office. The relator might just as well be merely a citizen of that school township, or any person claiming any interest in the government of the public schools in that township, and laying no claim to the office in controversy. The only way in which the qualification of the relator to appear as such can be questioned is upon the application for leave to file the information. No exception was taken to the action of the Circuit Court permitting such information to be filed, nor was there a motion filed to set aside the order granting such leave. It is not a subject for demurrer, because the interest of the relator need not and rarely does appear in the information. If a suitable interest is not shown in the subject-matter, leave to file the information will be refused. (Tancred's Quo Warranto, 45-6; Cole's Quo Warranto, 172; Hequembourg v. Lawrence, 38 Mo. 535.)

II. Our statutes do not require that the relator must have the right to or be entitled to the office. (R. C. 1855, p. 633, §§ 1, 3; State ex rel. Washington County v. Stone, 25 Mo. 555.) A writ of quo warranto is a writ of right, and issues as a matter of course upon demand of the proper officer.

III. The petition states that said relator, Quirin Kempf, was the legally-elected school director at said election.

CURRIER, Judge, delivered the opinion of the court.

This is an information in the nature of a writ of quo warranto. It is brought at the relation of Kempf against the defendant, as an intruder into the office of school director for township 48, in St. Charles county. Kempf and the defendant were candidates for that office at the election, and the defendant,...