State On Inf. Dearing, Prosecuting Attorney v. Berkeley

• Decision Date: 22 June 1897
• Citation: 41 S.W. 732,140 Mo. 184
• Parties: State on inf. Dearing, Prosecuting Attorney, v. Berkeley, Appellant
• Court: Missouri Supreme Court

41 S.W. 732

140 Mo. 184

State on inf. Dearing, Prosecuting Attorney, v. Berkeley, Appellant

Supreme Court of Missouri, Second Division

June 22, 1897

Appeal from Jefferson Circuit Court. -- Hon. James F. Green, Judge.

Reversed.

J. G Berkeley for appellant.

(1) The verdict of the trial court was against the law. Laws 1893 1894, art. 4, sec. 25, p. 70. (2) The statute will be construed in its ordinary plain meaning, with reference to the time fixed by it when one seeking an office shall have paid his taxes, etc. Laws 1893, art. 4, sec. 25, p. 70; R. S 1889, sec. 6570. (3) It was error of the court to grant the writ to show cause. 2 Dillon, Mun. Corp. [4 Ed.], sec. 900. (4) The relator as shown by the record had not sufficient interest to be entitled to sue out the writ. He was a stranger in interest to the action. 2 Dillon, Mun. Corp. [4 Ed.], sec. 901. (5) The law recognizes no parts of a day. Appellant being eligible the greater part of the day was clearly eligible throughout the whole day.

Jos. G. Williams for respondent.

OPINION

Sherwood, J.

On an ex-officio information filed in the circuit court, this proceeding in the nature of a quo warranto was instituted, and by the judgment of that court defendant was ousted from his office of city attorney of the city of DeSoto, and from such judgment of ouster he appeals to this court.

1. The prosecuting attorney has in the case at bar instituted this proceeding in the proper manner. "The title to all offices being derived from the State, and it having an inherent right at any time to call upon one who assumes to exercise the functions of a public office, to show his right to do so, it is evident that no specific allegations of right or title on the part of the State can be necessary; . . . . therefore, in such cases, . . . . a charge in general language that the respondent has intruded into, usurped and unlawfully exercised the functions of a certain office is all that is required to put him to his answer . . . . In all these cases, the State seeks to recover, not so much on the strength of its own title as upon the weakness or defects in the respondent's title, which it calls upon him to establish." Mechem's Pub. Off., sec. 491. "And when the information is filed in its name by the attorney-general (or other similar officer) it will be presumed that he does so in his official capacity and for the purpose of vindicating the rights of the State." Ib., sec. 490.

Not so, however, when the proceedings are begun at the instance of some private individual; in such case his interest in the question must be made to appear. Ib., sec. 490. And an information in quo warranto by the attorney-general, etc., may be filed without leave and as a matter of course. State ex rel. v. Rose, 84 Mo. 198, and cases cited. Short on Mand., Quo Warranto, etc., sec. 175.

2. The answer of the respondent to the rule to show by what authority he held the office of city attorney was in due form, and set up among other things, that: "At a special election, the same being legally held in and for the city of DeSoto, Missouri, for the purpose of electing a city attorney for said city, that he received a majority of the votes cast thereat. Defendant further says that on the tenth day of July,...