State ex rel. Norton v. Lupton

• Decision Date: 30 April 1877
• Parties: STATE OF MISSOURI, ex rel., U. S. NORTON, Respondent, v. J. U. LUPTON, Appellant.
• Court: Missouri Supreme Court

64 Mo. 415

STATE OF MISSOURI, ex rel., U. S. NORTON, Respondent,

v.J. U. LUPTON, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jasper County Court of Common Pleas.

Crow & Hess, for Appellant, cited: K. C., St. Jo. & C. B. R. R. vs. Nelson, 62 Mo. 585; State to use vs. Lingo, 2 Mo. 500; High Leg. Rem., 437, 606, 676; State ex rel. vs. Stewart, 32 Mo. 381-382; State vs. Vail, 53 Mo. 107; State ex rel. vs. Lawrence, 389; Dil. Corp. Ed. 72, § 772; People vs. Scrugham, 20 Barb. 302.

W. H. Phelps, with Walser & Cunningham, for Respondent.HOUGH, Judge, delivered the opinion of the court.

This was an information in the nature of a quo warranto, brought at the relation of W. S. Norton against the defendant, Lupton, for an alleged intrusion into and usurpation of the office of city marshal of the town of Joplin.

It appears from the record that the defendant was in October, 1873, elected city marshal of said town of Joplin, and soon thereafter duly qualified and entered upon the discharge of his duties. In the following April an order was made by the city council, removing him from office for some alleged official misconduct, and the relator was appointed to fill his place. In pursuance of a provision in the city charter authorizing the city council to provide by ordinance for the removal from office of all city officers, for neglect of duty or misconduct in office, an ordinance was passed declaring that any officer who should fail or refuse to obey any ordinance, resolution or order of the board of councilmen, should be deemed guilty of a neglect of duty, and that any officer who should willfully violate any ordinance, resolution or order of the city council, or any provision of the original or amended charter, or who should be guilty of habitual drunkenness, should be deemed guilty of misconduct in office. The following record was read in evidence to establish the amotion of the defendant: “Charges were preferred and filed by Judge Jacob Hogle, affiant, against J. W. Lupton, defendant, for misconduct in office and neglect of duty. Signed: Lee Taylor, Mayor, J. W. Ried, Clerk. April 15th, 1874. The case of the city of Joplin vs. J. W. Lupton was taken up and some additional evidence taken in behalf of the defendant; the board then retired for a few minutes, and returned the following verdict, viz: The board of councilmen find J. W. Lupton guilty of neglect of duty and misconduct in office, and, on motion, it was resolved that he be discharged from the office of city marshal and said office is hereby declared vacant.”

The defendant demanded a jury which was refused, and the cause was tried by the court and a judgment of ouster was rendered against the defendant, from which he has appealed to this court.

Some doubt has been expressed by the courts of last...