The State ex Informatione Crow v. Bland

• Court: Missouri Supreme Court
• Writing for the Court: Marshall, J. --
• Citation: The State ex Informatione Crow v. Bland, 46 S.W. 440, 144 Mo. 534 (Mo. 1898)
• Decision Date: 14 June 1898
• Parties: The State ex informatione Crow, Attorney-General, Rombauer, Applicant, v. Bland, Judge

46 S.W. 440

144 Mo. 534

The State ex informatione Crow, Attorney-General, Rombauer, Applicant, v. Bland, Judge

Supreme Court of Missouri

June 14, 1898 ^[*]

Demurrer sustained.

John M Wood, R. L. Goode, Adiel Sherwood and John H. Overall for respondent.

(1) The information does not state facts sufficient to constitute a cause of ouster of respondent under the act of March 31 1893, admitting everything alleged to be true. And the demurrer should be sustained because: First. It is necessary for the Attorney-General to make a case by the allegations of his information as much so as for any other pleader. Inasmuch as the Attorney-General has undertaken to set out the grounds of disqualification, he must set out sufficient grounds. Besides, as this is a proceeding under the statute to oust the incumbent, the causes must be stated therein, and inasmuch as the statute prescribes the mode in which this must be done and the causes therefor there can be no reference to the common law to aid in the task. Further, this is not a common law proceeding for the reason that the Attorney-General can not act of his own motion, but must await the pleasure of the defeated candidate. Hence, the information is bad because it does not allege facts which show that respondent is disqualified or that the election was not a legal election. The information is not one at common law for the additional reason that Rombauer is in as a party plaintiff under the provisions of the act. Statutory causes and methods are exclusive. Anderson v. Gould, 6 Mass. 40; Franklin Co. v. White, 14 Mass. 286; Dudley v. Mayhew, 3 N.Y. 15; Vestry v Batterbury, 2 C. B. (N. S.) 486; Edwards v Davis, 16 Johns. 281; Almy v. Harris, 5 Johns. 175; Smith v. Lockwood, 13 Barb. 209; Brown v. Grover, 6 Bush (Ky.), 1; Com. v. Sutherland, 3 Serg. and R. (Pa.) 145. A private relator can not be joined in quo warranto with the Attorney-General. State v. Summer's Point, 46 N. J. L. 515. Specific facts and illegal acts are not alleged. Rex v. Pinney, 3 B. and Ad. 947; Mayor v. Shaw, 16 Ga. 187; King v. Mashiter, 6 Adolph. & E. 153; State v. Lupton, 64 Mo. 415. No facts to show election illegal. Inhabits, Etc., v. Stearns, 21 Pick. 154; In re McCullough, 12 Phila. 570; Trustees v. Gibbs, 2 Cush. 39; Rex v. Jefferson, 2 N. and M. 487; State ex rel. v. Humphries, 74 Tex. 466; Queen v. Cousins, L. R. 8 Q. B. 216; State ex rel. v. Bruggemann, 20 A. 731; People ex rel. v. Thornton, 25 Hun. 456. Second. The first, second, third and fourth counts of the information do not show that voters were corrupted or that any money, reward or influence was promised to the voters. Lehlbach v. Haynes, 45 N. J. L. 81; Griffin v. Wall, 32 Ala. 149; Preston v. Culbertson, 58 Cal. 211; People v. Glenn County, 100 Cal. 419; Todd v. Stewart, 14 Col. 286; State v. Krueger, 134 Mo. 271; State v. Miller, 132 Mo. 300. Third. In view of our other statutes punishing bribery at elections with forfeiture of office upon conviction of the offense (R. S. 1889, sec. 3734) with which the "corrupt practices act" is in pari materia, a prior conviction is necessary before a judgment of ouster of respondent for bribery can be entered under the latter act. The two statutes must be so construed as to make a harmonious, consistent system of election laws. Hence, the information must by certain and specific averments show such a prior conviction or in lieu thereof a change of sufficient votes by corrupt practices prohibited by the terms of the act, to change the result of the election. Prior conviction necessary. State ex rel. v. Humphries, 74 Tex. 466; Com. v. Jones, 10 Bush, 725; Huber v. Reiley, 53 Pa. St. 112; State v. Symonds, 57 Maine, 148; Burkett v. McCarthy, 10 Bush (Ky.), 758; Page v. Hardin, 8 B. Mon. (Ky.) 648; Curry v. Stewart, 8 Barb. (N. Y.) 560; Hyde v. State, 52 Miss. 665; Honey v. Graham, 39 Tex. 1; Pitts v. Pitts, 52 N.Y. 593; Schiffer v. Pruden, 64 N.Y. 47; Blanfus v. People, 69 N.Y. 109; Barber v. People, 20 John. 457; Royal v. Thomas, 28 Gratt. (Va.) 130. Sufficient votes to change result. Rex v. Jefferson, 2 N. & M. 487; State ex rel. v. Pritchard, 36 N. J. L. 106; Inhabits., Etc., v. Stearns, 21 Pick. 154; In re McCullough, 12 Phila. 570; Trustees v. Gibbs, 2 Cush. 39; State ex rel. v. Humphries, 74 Tex. 466; Queen v. Cousins, L. R. 8 Q. B. 216; State ex rel. v. Bruggemann, 20 A. 731; People ex rel. v. Thornton, 25 Hun. (N. Y.) 456. Even admitting that section eleven applies. Stine v. Berry, 27 S.W. 809. In pari materia. Porter's Dwarris on Stat. 189; State v. Klein, 116 Mo. 264; Sedgwick Const. and Stat. Law, 209; Sutherland, Stat. Const., secs. 283, 284, 350; St. Louis v. Howard, 119 Mo. 41; Rex v. Loxdale, 1 Burr. 147; 1 Kent. Com. 463, 464; Ex parte Joffer, 46 Mo.App. 360; Pitt v. Bishop, 53 Mo.App. 600; State v. Daily, 49 Mo.App. 184; Kansas City v. Barker, 54 Mo.App. 60.

Edward C. Crow, Attorney-General, for the State, and Chester H. Krum for applicant.

(1) Taking the grounds of the demurrer in the order in which they are stated by the defendant it is submitted, on the part of the State, that the several charges contained in the information do constitute grounds within the provisions of the act of thirty-first of March, 1893, for ousting the defendant from office. Section 1 of the act provides, first that every person who shall directly or indirectly, by himself or by any other person on his behalf, give, lend or agree to give or lend, or shall offer or promise to procure or endeavor to procure any money or valuable consideration to or for any other person in order to induce any voter to vote or refrain from voting, or shall corruptly do any such act, as aforesaid, on account of such voter having voted or refrained from voting at any election, shall be ousted, etc. Second. That every person who shall directly or indirectly by himself, or by any other person on his behalf, give or procure, or agree to give or procure, or offer or promise to procure, or endeavor to procure any office, place or employment, public or private, to or for any voter or to or for any person on behalf of any voter, or to or for any other person, in order to induce such voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid on account of any voter having voted or refrained from voting at any election. Third. Every person who shall directly or indirectly, by himself or any other person on his behalf, make any such gift, loan, offer, promise, procurement or agreement, as aforesaid, to for any person in order to induce such person to procure or endeavor to procure the election of any person to a public office, or the vote of any voter at any election. Fourth. Every person who shall upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procure or engage, promise, or endeavor to procure the election of any person to a public office or the vote of any voter at any election. Fifth. Every person who shall advance or pay or cause to be paid any money to or for the use of any other person, with the intent that such money or any part thereof shall be expended in bribery at any election, or who shall unlawfully pay or caused to be paid any money wholly or in part, expended in bribery at any election; and any such person so offending shall be guilty of a felony. (2) Section 11 of the statutes provides that such action shall be deemed to be and shall be conducted according to the rules prescribed by law for an action against the usurper of an office or franchise. Accordingly the information recites or alleges the fact that the defendant at the election for judge of the court of appeals, where he was a candidate, received, according to the official count, the highest number of votes, but that Roderick E. Rombauer received the next highest number, and the information recites that the said Rombauer filed with the Attorney-General the complaint required by the statutes accompanied by the requisite bond and specifying certain violations of the act of March 31, 1893, which are set forth in the present complaint. (3) For the purpose of answering the first ground of demurrer, which is general in its nature, it will be sufficient to say that the various charges as laid in the information, constituted a violation of the provisions of section 10 of the act. It is proper to observe in this connection, however, that independently of any other consideration the information sufficiently, in a general way, states a complete cause of action, or constitutes in itself a formal information at common law, which is sufficient for the purpose of a quo warranto. It is submitted on the part of the State that these averments in themselves constitute a sufficient information for the purposes of procedure by quo warranto. So that for the purposes of the general demurrer now being considered, all of the information which undertakes to specify grounds of proceeding against the defendant could be rejected as surplusage and still enough would remain to make a good information under the law. It seems to be well settled that an ex officio information need only be general in its character and no averments, further than general averments, are required. The information is not required to show the title of the relator; it is enough to allege in general terms that the incumbent of the office is in possession thereof without legal authority. People v. Miles, 2 Mich. 348; People v. Abbott, 16 Cal. 358; People v. Ins. Co., 16 Johns. 358; People v. Woodbury, 14 Cal. 43; People v. Richardson, 4 Cow. 97. (4) The point that a judge of the court of appeals can be removed from office only by impeachment or address, and that his title to his office can be inquired into only by contest of election will hardly be seriously insisted on. The...