The State ex inf. Sutton v. Fasse

• Decision Date: 15 June 1905
• Citation: 88 S.W. 1,189 Mo. 532
• Parties: THE STATE ex inf. SUTTON, Appellant, v. FASSE
• Court: Missouri Supreme Court

88 S.W. 1

189 Mo. 532

THE STATE ex inf. SUTTON, Appellant, v. FASSE

Supreme Court of Missouri, First Division

June 15, 1905

Transferred from St. Louis Court of Appeals.

Affirmed.

Robert L. Sutton for appellant.

(1) The information was filed by the prosecuting attorney ex officio and therefore the burden is on respondent to show that he rightfully and lawfully holds and uses the office of school director. State ex inf. v. Vallins, 140 Mo. 527; State ex inf. v. Berkely, 140 Mo. 184; State ex inf. v. Hogan, 163 Mo 52; State ex rel. v. McCann, 88 Mo. 386. When the State by quo warranto calls upon an individual to show title to an office, he must show the continued existence of every qualification necessary to the enjoyment of the office People v. Mayworm, 5 Mich. 146; State v. Beecher, 15 Ohio 723; State v. Gleason, 12 Fla. 265; Clark v. People, 15 Ill. 217; State v. Aldermen of Pierce City (Mo.), 3 S.W. 849. If the respondent fails in his proof, judgment of ouster may follow. People v. Bartlett, 6 Wend. 422; People v. Pease, 30 Barb. 588. (2) It is not shown by the evidence nor admitted by the pleadings that respondent is a citizen of the United States, a qualification prescribed by the statute. Sec. 9759, R.S. 1899. (3) It is not shown by the evidence or admitted by the pleadings that respondent ever qualified as director by subscribing the oath required by the statute and the Constitution. Sec. 9760, R.S. 1899; Const., sec. 6, art. 14; State ex rel. v. McCann, 88 Mo. 391; High, Ex. Leg. Rem., sec. 627; State v. Dierberger, 90 Mo. 374. (4) Respondent was not a resident taxpayer of the district. Sec. 9759, R.S. 1899. A taxpayer is one who pays taxes regularly assessed. State ex rel. v. Rebenack, 135 Mo. 341. Furthermore, the payment of the delinquent tax in Warren county in February, 1901, does not fill the requirement of the statute for the payment of a State and county tax within one year prior to his election. Such tax must be paid in the county where the director is elected and holds office. Sec. 9759, R.S. 1899.

Martin & Woolfolk for respondent.

(1) The plaintiff does not give as grounds for a new trial, in its motion for a new trial herein, that the proof did not show respondent a citizen of the United States or that there was a failure of proof that respondent took and subscribed the oath of office as member of the board of directors of said district; and having failed to call attention of the trial court specifically to the alleged error, it is too late to raise the question at this late hour -- granting that there was such failure of proof, which we do not. R.S. 1899, sec. 864; Sweet v. Maupin, 65 Mo. 65; Standard Milling Co. v. Railroad, 122 Mo. 258; Vineyard v. Matney, 68 Mo. 105; Hall v. Harris, 145 Mo. 619; Bartlett v. Veach, 128 Mo. 91; Land Company v. Bretz, 125 Mo. 419; Baker v. Railroad, 122 Mo. 598. (2) Respondent was a resident taxpayer within the meaning of the statute. [R.S. 1899, sec. 9759.]

OPINION

LAMM, J.

Quo warranto on the information of the prosecuting attorney of Lincoln county, ex officio, to try the title of Fasse to the office of school director of district 1, township 48, range 2, of Lincoln county.

Judgment was rendered below for respondent and relator appealed to the St. Louis Court of Appeals, where, on January 20, 1903, the judgment of the lower court was affirmed, the St. Louis Court of Appeals speaking through Goode, J. A rehearing was granted on the suggestion that the St. Louis Court of Appeals had no jurisdiction, and that this court under section 12 of article 6 of the State Constitution has exclusive appellate jurisdiction "in cases involving title to an office under this State." The St. Louis Court of Appeals under the authority of State ex rel. v. Hill, 152 Mo. 234, 53 S.W. 1062, rightly concluded that the office of school director was an office under this State and that it was without jurisdiction; wherefore, it granted a new hearing and transferred the cause here for our determination.

We have examined the bill of exceptions, the briefs of counsel and the opinion handed down, and being persuaded that the opinion of Goode, J., correctly construed the statutes involved and applied the law to the facts, so that ultimate justice was attained, we adopt it as our own. That opinion is as follows:

"This is a quo warranto proceeding instituted at the relation of Robert L. Sutton, prosecuting attorney of Lincoln county, against the respondent, to oust the latter from the office of member of the board of directors of a school district in Lincoln county, to which office the evidence shows Fasse was elected on the first Tuesday in April, 1901.

"The information charges the respondent with unlawfully usurping the office, exercising the powers and performing the duties thereof since said date.

"An answer was filed alleging the lawful election of Fasse on said date by his receiving twenty-six out of the thirty-eight votes cast by the qualified voters of the district voting at the election and stating also his qualifications for the office.

"For a person to be eligible to the office of director of a school district in this State he must be a citizen of the United States, a resident taxpayer and a qualified voter of the district, and must have paid a State and county tax within one year next preceding his election. It is also prescribed that he must take and subscribe to the oath of office within four days after his election. [R.S. 1899, secs. 9759 and 9760.]

"Respondent's title to the office was assailed on the ground that he was not a resident taxpayer in the district in which he was chosen, and in support of that position appellant points to the fact, testified to by Fasse himself, that he paid no tax in the year 1900. His omission to do so was likely due to the circumstance that he had moved into Lincoln county the preceding year, to-wit, 1899, from Warren county, where he had been residing since the year 1894. Previous to the last-mentioned year he had resided and paid taxes in Lincoln county and in the very school district in which he was elected director. Fasse was a man in humble circumstances having only some household goods, a mule, a cow and a one-half interest in a 'saw outfit' and engine. The testimony, however, shows that he had continually paid taxes on the small property he owned, for years, in Lincoln and Warren counties, according to his residence; but in the year 1900, the assessor of Lincoln county overlooked him, presumably on account of his recent return there. That he had paid a State and county tax in Warren county within one year preceding his election was...