State v. McMillan

Decision Date01 October 1891
Citation108 Mo. 153,18 S.W. 784
PartiesSTATE ex rel. BROWN, County Attorney, v. McMILLAN et. al.
CourtMissouri Supreme Court

Quo warranto on the relation of Marcy K. Brown, as county attorney, against Frank W. McMillan, Day K. Smith, Percy Thompson, and John Dornseif. Respondents demur to the information. Demurrer overruled.

Wash Adams and Marcy K. Brown, for relator. W. A. Alderson, for respondents.

GANTT, P. J.

This is a proceeding upon information of the prosecuting attorney of Jackson county ex officio to test the right of respondents to exercise the powers and discharge the duties of members of the board of aldermen of the city of Westport, in Jackson county. It is alleged that said city was and is a city of the fourth class, under the laws of this state; that prior to May 11, 1891, said city included certain territory, which was divided into two wards; that by an ordinance of said city duly passed by the board of aldermen, entitled "An ordinance to extend the corporate limits of the city of Westport over territory lying adjacent thereto," approved April 14, 1891, and taking effect from its approval, and by virtue of an election held for that purpose by the qualified voters of said city, in pursuance of said ordinance, on 11th of May, 1891, the corporate limits of said city were extended so as to take in certain additional territory described in the information; that afterwards, on 22d day of June, an ordinance was duly passed dividing said city, within its now extended limits, into four wards; that by said ordinance the two old wards Nos. 1 and 2 comprised the same territory they occupied prior to the extension, and the Third and Fourth wards were made up entirely of new territory taken in by said extension. It is then charged that on the 29th June, 1891, the city council passed an ordinance providing for the filling of vacancies in the board of aldermen, which ordinance is set out in full; that on 30th June, 1891, the mayor of the city, in pursuance of said ordinance, issued his proclamation declaring vacancies existed in said board on the ground that there were no representatives in said board from said new Third and Fourth wards, and called a special election to fill said alleged vacancies on July 11, 1891. It is then alleged that the election was held, and respondents, two each, were elected in said wards; that subsequently they took the oath of office, and are now exercising all the rights of aldermen of said city. Relator charges that said election was illegal and void on two grounds: First, that in contemplation of law there were no vacancies in said board such as there was any authority to fill; and, secondly, if there were vacancies, the election was void because it was not held under the Australian ballot law, adopted in this state in 1889, and amended in 1891. To this information respondents interpose a demurrer, assigning the following reasons why the writ of ouster should not go: (1) That the information discloses on its face that respondents are the duly elected and qualified members of the board; (2) that the information does not state facts sufficient to authorize the relief prayed; (3) that there is a defect of parties plaintiff.

1. We are met at the threshold with the technical objection that the prosecuting attorney is not permitted by the laws of this state to prosecute a writ of quo warranto "without the intervention of some third person as relator." This contention is more plausible than sound. By section 637, Rev. St. 1889, it is provided: "The prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or state may be concerned." That the state is interested in preventing any person usurping or intruding himself into an office created by its laws is now firmly settled. This is a proceeding by the prosecuting attorney ex officio. It has been ruled uniformly since State v. Merry, 3 Mo. 278, that the writ of quo warranto is a writ of right, and that the attorney general need not ask leave to file his information. In State v. Rose, 84 Mo. 198, the precise point raised by the demurrer here was made, and it was ruled that "informations by the attorney general or prosecuting attorney ex officio may be filed without leave as a matter of course." This court has never been disposed to deny the state the right to inquire, through her properly constituted officers, into the right of any person to one of its public offices. It is conceded by respondents that this court has often entertained and determined like proceedings, brought and prosecuted, in which the prosecuting attorney was the sole relator. This is certainly true; and it does seem to us that it is peculiarly appropriate that the prosecuting attorney should represent the state in such cases, and we see no reason for departing from this well-established practice. State v. Frazier, 98 Mo. 426, 11 S. W. Rep. 973.

2. Having determined that the relator may maintain this proceeding, we are next led to inquire into his complaint. He charges, first, that the respondents are usurpers, because there were no vacancies in the board of aldermen to be filled. Section 1585, Rev. St. 1889, provides that "the board of aldermen may, by ordinance, divide the city into not less than two wards, and two aldermen shall be elected from each ward." It clearly appears that, acting under this authority, the board divided the city of Westport into four wards, and that from the time the Third and Fourth wards were established, until the election of respondents, these wards had no representation in the board. That each of these wards, under the law, is entitled to two aldermen is perfectly clear; but relator claims they are not entitled to this representation until the next general city election in April, whereas respondents claim that, as soon as the wards were lawfully created, they became entitled to representation, and there were four vacancies in the board. To meet this claim relator relies upon section 1887 of the Revised Statutes, which provides that, "whenever new wards shall be established, there shall be no election of a representative to the municipal legislature for such ward until the general election for corporation officers." If this section was a portion of the charter of cities of the fourth class, or if it did not so clearly appear that it was peculiar to cities of the second class, there might be some force in relator's position; but from an examination of its history and its position in our laws we are satisfied it pertains to cities of the second class only. This section was originally section 48, page 50, of the Session Acts of 1887, "An act providing that cities of more than 100,000 inhabitants might frame their own charter." When the revising committee arranged the present statutes this section was carried forward into them with a reference to the date of its adoption, and it is placed among those provisions having reference to cities of the second class alone. We think this is quite evident. The language of the section, moreover, is not such as is usual in referring to an alderman in cities of the fourth class. Leaving out of view, then, this section, we recur to the proposition of relator, that there were no vacancies. Relator contends that, inasmuch as section 1581 fixes the official term at two years from the first Tuesday in April, save when two aldermen are elected from the same ward, in which case the one receiving the smallest number of votes shall hold one year only, these terms must begin at the general election, and run together. We agree with him fully as to the regular terms, but we are now considering whether there is a vacancy. We think that both authority and the spirit of our institutions favor the view that when an office is created, and no restrictions for filling the vacancy are imposed, a vacancy arises ipso facto. "The word `vacant' aptly and fitly describes the condition of an office when it is first...

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