State v. Meek

• Decision Date: 25 June 1895
• Citation: 129 Mo. 431,31 S.W. 913
• Parties: STATE ex rel. WEED v. MEEK.
• Court: Missouri Supreme Court

31 S.W. 913

129 Mo. 431

STATE ex rel. WEED v. MEEK.

Supreme Court of Missouri, Division No. 1.

June 25, 1895.

QUO WARRANTO PROCEEDING — RIGHT TO SCHOOL COMMISSIONERSHIP — SUFFICIENCY OF INFORMATION — JUDGMENT OF OUSTER.

1. Where, in proceedings in the nature of quo warranto, defendant fails to stand on his demurrer, which was general, he can, on appeal, only urge objections to the information going to the cause of action.

2. An information in proceedings in the nature of quo warranto to test defendant's right to the office of school commissioner, which shows relator's interest in the office as one holding over until the qualification of his successor, and charges that defendant "unlawfully intruded himself into and usurped said office of school commissioner, and now claims to legally hold said office and to rightfully perform the duties of the same by virtue of his election" at a time at which "he did not hold a certificate entitling him to teach in the public schools" of the county, — a qualification required by statute, — is sufficient to sustain a judgment for relator, where defendant failed to stand on his general demurrer thereto.

3. Error in the admission of evidence purely technical, and not affecting the merits of the case, is not ground for reversal.

4. Under a statute authorizing the institution of quo warranto proceedings "in case any person shall usurp, intrude into or unlawfully hold or execute any office," evidence that defendant accepted a commission as school commissioner, issued in pursuance of an election, that he demanded the books and other effects of the office from the incumbent, and that he furnished the county court a list of names from which to select teachers, together with the fact that he claimed to legally hold the office in his answer, sufficiently shows a user of the office to warrant a judgment of ouster against him, if he is disqualified to hold the office.

5. Under Rev. St. 1889, § 8028, providing that "there is hereby created the office of county school commissioner of public schools, who shall be at least 21 years of age, a resident of the county when elected, for at least one year prior to such election, and shall hold a certificate entitling him to teach in the public schools of such county," to qualify one to hold the office, he must have held a certificate to teach in the schools when elected.

Appeal from circuit court, De Kalb county; C. H. S. Goodman, Judge.

Proceedings in the nature of quo warranto on the relation of Samuel W. Weed against Benjamin F. Meek. There was a judgment for relator, and defendant appeals. Affirmed.

S. G. Loring, for appellant. Frank Costelio and J. F. Harwood, for respondent.

BRACE, C. J.

This is a proceeding in the nature of quo warranto by the prosecuting attorney of De Kalb county at the relation of Weed, instituted by leave in the circuit court of that county at the June term, 1893, thereof, against the defendant, Meek. On the first Tuesday in April, 1891, the relator was duly elected school commissioner of said county for the term of two years from that date, duly qualified and entered upon the discharge of his duties as such, and since has continued in the discharge thereof. At the next school election, held on the first Tuesday in April, 1893, the defendant was returned as elected school commissioner, and afterwards, on the 14th of April, 1893, received a commission under that election, and thereafter qualified as such, and demanded of relator that he turn over to him all books, papers, certificates, stub books, and records in his (relator's) possession as such commissioner, which the relator refused to do, and thereafter caused this proceeding to be instituted; the information alleging the election and qualification of the relator, as aforesaid, and the continuance of his qualification to hold said office, and charging that the defendant was not duly elected to said office on the first Tuesday in April, 1893, "and has no lawful right or authority to hold said office, for the reason that on said first Tuesday in April, A. D. 1893, said defendant did not hold a certificate authorizing and qualifying him to teach a public school in said De Kalb county, Missouri," but by virtue thereof "unlawfully intruded himself into and usurped said office of school commissioner, and now claims to legally hold said office, and to rightfully perform the duties of the same," under and by virtue of said election. The defendant treated the information as a petition in an ordinary civil suit, demurred thereto, on the ground that the petition did not state facts sufficient to constitute a cause of action against him. The demurrer being overruled, the defendant answered, admitting that relator is acting as school commissioner of De Kalb county; denies that the defendant unlawfully or otherwise intruded himself into or usurped said office; but avers that on the first Tuesday in April, 1893, he was a resident of said county, more than 21 years of age, and for more than one year prior thereto had been a resident of said county, and then held a certificate entitling him to teach in the public schools of said county, and that at the election held on that day he was duly elected school commissioner of said county for the term of two years from said date; that he thereafter qualified as such commissioner, demanded of relator possession of the books, etc., of said office, as hereinbefore stated; but that he was never inducted into his said office, nor has he exercised any of the duties thereof. Issue was joined on the answer by a reply, and the case submitted to the court upon the evidence (which will be noticed, as far as...