The State ex rel. Weed v. Meek

• Decision Date: 25 June 1895
• Citation: 31 S.W. 913,129 Mo. 431
• Parties: The State ex rel. Weed v. Meek, Appellant
• Court: Missouri Supreme Court

31 S.W. 913

129 Mo. 431

The State ex rel. Weed v. Meek, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from DeKalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

S. G Loring for appellant.

(1) The court erred in overruling defendant's demurrer to the plaintiff's petition. State, etc., v. Lawrence, 38 Mo. 538; Ex rel. Kompf, 46 Mo. 529. (2) The court erred in permitting relator's pretended commission to be read in evidence. (3) The court further erred in finding the issues for the relator.

Frank Costello, Prosecuting Attorney, and J. F. Harwood for respondent.

(1) The information was sufficient. (2) The law required defendant in order for him to be qualified for the office of county school commissioner, to hold a teacher's certificate at the time of the election. R. S. 1889, sec. 8028.

Brace P. J. Barclay, J., in the result.

OPINION

Brace, P. J.

This is a proceeding in the nature of quo warranto, by the prosecuting attorney of DeKalb 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 afterward on the fourteenth 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, certificate 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 twenty-one 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 the 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 necessary in the course of the opinion) and judgment of ouster rendered against the defendant, from which he appeals, and assigns the following errors for reversal, to wit: That the court erred in overruling his demurrer, in admitting incompetent evidence for the plaintiff; and in finding the issues for him on the evidence.

I. The objections urged to the information are that it does not allege that the relator was ever commissioned, or that he has been ousted from the office of school commissioner by the defendant, or that defendant ever used or exercised any of the powers or duties of that office, and did not possess the qualifications required for the office.

The demurrer was a general one. The defendant did not stand on it, and can not now urge any objection to the information that does not go to the cause of action. The information sufficiently shows the relator's interest in, and relation to, the office, as commissioner holding the same over after his term expired until his successor should be duly elected and qualified, if that were necessary, but which is not conceded, and expressly charged "that on or about April, A. D. 1893, the 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 on the first Tuesday in April, 1893," at which time it is alleged, in substance, that he did not hold a certificate "entitling him to teach in the public schools of DeKalb county," a qualification required by statute law for that office. A sufficient foundation for the inquiry was thus laid in the information, and the court committed no error in overruling the demurrer thereto.

II. The objections to the action of the court in admitting evidence are purely technical, not well founded, do not affect the merits of the cause, and need not be specially noticed.

III. The only evidence of possession and user of the office of school commissioner of De Kalb county by the defendant is the claim of the defendant in his answer that he was duly elected school commissioner thereof on the second Tuesday in April 1893, and his action on the fourteenth of April in accepting a commission duly issued in pursuance of such election, taking the oath of office required by law, and thereafter demanding the books and other effects of the office from the relator, and subsequently furnishing the county court with a list of names of persons from whom to...