State ex rel. Kempf v. Boal

Oct 15, 1870

Versions:46 Mo. 528

CüRRiER, Judge,

delivered the opinion of the court.

This is an information in the nature of a writ of quo war-ranto. It is brought at the relation of Kempf against the defendant, as an intruder into the office of school director for township 48, in St. Charles county. Kempf and the defendant were *531candidates for that office at the election, and the defendant, as the information shows, received a; majority of the votes, Kempf being the next in vote. Kempf had taken and filed the oath of loyalty as provided by the constitution, which the defendant had neglected to do. It is therefore claimed, and justly, that the defendant was ineligible to the office and wanting in the legal prerequisites qualifying him for the discharge of the functions of a school director. But was Kempf in any better condition ? The information shows that he took and filed the oath of loyalty as provided by law, but it fails to show that he possessed certain other indispensable prerequisites of elegibility, as that he was a “resident qualified voter” in the district. (Sess. Acts 1868, p. 165, § 2.) On that ground the information is demurred to as insufficient; and whether or noi the information is sufficient is the question for decision.

The enactment that informations of this character may be exhibited “ at the relation of any person desiring to prosecute the same,” means any person having an interest in the subject of the prosecution — in this case in the office of school director. (State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; Commonwealth ex rel. McLaughlin v. Cluley, 56 Penn. St. 270.) What interest had the relator in that office ? The information fails to show that he had any. It states that he received a minority of the votes, and filed the required oath, and there stops, so far as any attempt is made to set out his qualifications for the office is concerned. But it was necessary, in order to show title to the office in him, that it should further appear that he was a resident qualified voter in the district — that is, that he resided in the district; that he had resided in the State one year; and that he had registered, and thereby become a qualified voter. It was as necessary to show these facts as to show that he had taken the oath of loyalty. But there is no allegation, general or special, in the information averring elegibility or qualification for the office, except as to the question of loyalty. For aught the information discloses, the relator may have been a resident of some other State, and' so disqualified from holding the office. If disqualified in consequence of non-residence or other cause, he had no legal title *532to the office, and consequently no interest therein. The information might be well enough after verdict or judgment, but the question here arises upon demurrer, and the objection must be sustained.

As regards the votes cast for the defendant, they were nugatory. It was as though no such votes had been cast at the election. The constitution distinctly prohibited their being cast up or treated as votes at all, as it also prohibited the issuing of .a certificate of election because of them. The evident intention of the constitution is that the party receiving the majority of available votes should have the certificate of election; that is, the majority of votes that it was permissible for the canvassers to “cast up.”

The judgment will be reversed and the cause remanded.

The other judges concur.