139 W. Va. 327 | W. Va. | 1954
Lead Opinion
These proceedings were instituted in the Circuit Court of Harrison County upon informations in the nature of quo warranto, pursuant to the provisions of Code, 53-2-4. The circuit court sustained demurrers to the informations and, respondents having declined to amend, dismissed the proceedings. Questions involved upon the writs of error granted by this Court are identical and are considered together.
The relators are members of the city council of Clarks-burg, and the basis of their contention, upon which they would try the right or title of respondents to the offices involved, rests upon the provision found in Section 12 of the charter of that city, enacted by the 1921 Legislature, which reads: “No person shall be elected or remain a member of the city council who does not reside in the ward from which he is elected and who is not a freeholder of record in the city of .Clarksburg”. Relators allege that respondents were not freeholders of record in the City of Clarksburg at the time of the election.
The first ground of the demurrers of respondents, the ground upon which the circuit court sustained the demurrers, relates to the right of relators to maintain these proceedings, the contention being that relators are not persons “interested” within the meaning of Code, 53-2-4, which, in so far as material, reads: “In any case in which a writ of quo warranto would lie, the attorney general or prosecuting attorney of any county, at his own instance or at the relation of any person interested, or any person interested, may, in the name of the State of West Virginia, apply to any such court or judge thereof in vacation as is mentioned in the second section of this article for leave to file an information in the nature of a writ of quo war-
It may be noticed that the statute contains no language attempting to ascribe to the word “interested” any special or limited meaning. It is a word of common use but of wide and varied meaning, as shown by Webster’s definitions thereof. This Court, however, and we believe in accord with the great weight of authority of other jurisdictions having similar statutes, has limited the meaning thereof in some respects. In State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, it is held: “1. In a proceeding by way of an information in the nature of a writ of quo .warranto against a person who is claimed to have intruded into or usurped the office of sheriff of a county, such proceeding must be at the relation of some person interested, otherwise than as a citizen and taxpayer, unless such proceeding is instituted at the instance of the ATTORNEY GENERAL or the prosecuting attorney of the county.” This case is also authority for the proposition that a defeated candidate is not such an “interested person” within the meaning of the statute, where such defeated candidate has no claim to the office involved, such as the right to remain in office until a successor has been elected and qualified. In State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d 683, it is held that a de facto officer as such is not an “interested person” within the meaning of the statute. See Bryant v. Logan. 56 W. Va. 141, 49 S. E. 21.
It is contended that the decisions of this Court indicate that the “interest” required by the statute must be an interest in the office involved. We think, however, that the rule upon which the decisions rest, as indicated by the authorities cited therein, is that the Legislature could not have intended that an officeholder be subjected to litigation, as to his right or title to the office, at the hands of every citizen and taxpayer. This would not be in the public interest. It would not only tend to confuse and
The precise question to be determined here is whether members of a city council elected from certain wards have such an interest within the meaning of the statute to enable them to prosecute a proceeding in the nature of quo warranto, to have determined the right of another person to hold office as a member of that body from a different ward. We are cited no authority, and have found none, which seems directly in point. The charter of the City of Clarksburg provides for a city council of nine members. It also provides that five members thereof shall constitute a quorum, and that a majority vote of.the members shall be necessary for the transaction of business, including the enactment of ordinances under which the
In 44 Am. Jur., Quo Warranto, Section 76, we find this statement: “Where quo warranto is an available remedy to test the right to act as a director or other officer of a private corporation or association, the proceedings may be brought upon the relation of anyone having the necessary interest, such as a director, a trustee, or a stockholder.” The interest of a member of a city council would, it seems to us, be as substantial as that of a director of a private corporation, considered either from an individual or a public viewpoint. Undoubtedly, the Legislature, in making available a remedy upon an information in the nature of quo warranto, in addition to the statutory remedy of quo warranto provided by Code, 53-2-1, intended
Another ground of the demurrer is based on the contention that the informations are fatally defective, for the reason they do not allege that respondents were not freeholders of record in the City of Clarksburg at the time of the institution of these actions, the theory on which the contention is based being that respondents are entitled to hold their respective offices notwithstanding they were not freeholders at the time of their election if they had become such freeholders at the time of the institution of the actions. It may be noticed that the provision of Section 12 of the charter, quoted above, provides that no person shall be “elected” who is not a freeholder. The freeholder requirement has been held to be constitutional. See McMillin v. Neeley, 66 W. Va. 496, 66 S. E. 635; Kahle v. Peters, 64 W. Va. 400, 62 S. E. 691; State ex rel. Thompson v. McAllister, 38 W. Va. 485, 18 S. E. 770. In Daugherty v. Town of Mabscott, 131 W. Va. 500, 48 S. E. 2d 342, this Court held: “2. Under the provisions of Code, 8-3-11, a municipal officer is to be regarded as elected when the returns of the election have been duly canvassed to that effect and the result declared by order of the body authorized by law to do so, and not before.”
In Dryden v. Swinburne, 20 W. Va. 89, the person receiving the majority vote for the office involved was an alien and ineligible to hold the office. The Court, in its ■opinion, stated at page 137: “It follows, therefore, as the
In the recent case of Slater v. Varney, 136 W. Va., 406, 68 S. E. 2d 757, this Court, after discussing the Dryden and other cases, as related to the question here involved, stated: “* * * Though the constitutional and statutory provisions dealt with in those cases related to the election or the nomination of the contestee, the difference between disqualification to be elected to or nominated for an office and the constitutional disqualification here involved of the contestee to hold an office until he accounts for and pays the public moneys which were collected by him, though apparent, is not controlling so long as the disqualification continues to exist. The election or the appointment of a person to public office is merely the means provided by law by which such person is enabled to obtain and discharge the duties of the office and it is manifest that an election to an office of a person who, by reason of a permanent disqualification or ineligibility, cannot legally hold or occupy the office is not a valid election. This is necessarily so. It would be absurd to say that a person who receives the highest number of votes for an office voted for at an election, but who cannot legally hold or occupy such office is or can be legally elected to the office merely because he received the greatest number of votes. That a valid election to a public office impliedly contemplates and embraces the right to hold the office is indicated by the decision of this court in Dryden v. Swinburne, 20 W. Va. 89 * *
We think the rule deducible from the authorities cited is clearly stated in 67 C. J. S., Officers, Section 26: “Where the legislature has fixed the qualifications for an office pursuant to its authority so to do, the electors may not select one not possessing the qualifications prescribed, and one who is not eligible is not regraded as elected to office,
It being clear that the freehold requirement of the statute under consideration prohibited the “election” to the offices involved, it was unnecessary for the relators to allege that respondents were not freeholders at any time subsequent to the ascertainment of the results of the election. As to respondents, the election was a nullity.
We have not failed to consider the contention that respondents may have qualified as freeholders between the time of the ascertainment of the results of the election and the time for the taking and subscribing of the oath of office, thereby making themselves qualified to hold the office at the commencement of their respective terms. That right, however, is clearly denied by the statute. It may be, and probably is, true that respondents could have become freeholders before the time for the taking of the oath, but it is just as true that other persons similarly elected probably would not be able to so qualify. One of the purposes of the Legislature in requiring the qualification to exist at the time of “election”, and not at some later time, no doubt, was to prevent abortive elections, as in this very case. The purpose would not necessarily be attained in many cases if the opportunity for qualification was left open after election.
Another contention of respondents, raised by their demurrers, relates to the failure of relators to allege that respondents, at the time of their election, were not honorably discharged veterans of World War II, or that they were such veterans but had been discharged from service more than two years prior to the date of the election. Chapter 120 of the Acts of the 1947 Legislature provides, in effect, that the eligibility of veterans of World War II to hold office in any municipality for two years
Respondents further contend that the circuit court was without original jurisdiction of these proceedings for the reason that the city council of Clarksburg was vested with exclusive original jurisdiction to judge of the qualifications and eligibility of its own members. They rely on cases like Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; Price v. Fitzpatrick, 85 W. Va. 76, 100 S. E. 872; Martin v. White, 74 W. Va. 628, 82 S. E. 505; State ex rel. Thompson v. McAllister, 38 W. Va. 485, 18 S. E. 770. In the Evans case it was held that “The jurisdiction of the common council of a municipality * * * to hear and decide a contested election involving the selection of municipal officers is original and exclusive”, and that “A court of equity does not have inherent jurisdiction of a suit to determine the legality of an election involving the selection of officers of a municipality”. In. the Price case a contest of an election was determined by action of a tribunal attempted to be created by the old city council. The procedure was removed to the circuit court upon certiorari, where it was tried de novo. This Court held that the new council was the proper forum to try the contest. Therefore, the action of the old council being void, the circuit court was without jurisdiction upon, certiorari. In the Martin case plaintiffs attempted to have action of a city council reviewed by the circuit court upon mandamus. This Court stated that “Mandamus will not be allowed to usurp the function of appellate process. It can never be employed in the absence of statute for the correction of errors of inferior tribunals acting judicially”. In the McAllister case the holding is: “2. Certiorari and not mandamus, is the proper remedy to review the proceed
What has been said, we think, sufficiently answers other . questions raised by the demurrers of respondents, and requires that the judgment of the Circuit Court of Harrison County, in each proceeding, be reversed, and the proceedings remanded to that court.
Judgments reversed; proceedings remanded.
Dissenting Opinion
dissenting:
I respectfully but emphatically dissent from the holding of the majority as expressed in point 1 of the syllabus in these cases. In my opinion the legal proposition there enunciated is manifestly unsound in principle and is completely unsupported by any applicable convincing text or case authority.
Though the precise question whether a public officer who is a member of a municipal council or other administrative board or tribunal composed of, several members, all of whom are public officers but each of whom holds or occupies a separate public office, may, as a person interested, under Section 4, Article 2, Chapter 53, Code, 1931, maintain a proceeding by an information in the nature of a writ of quo warranto to determine the right of another member, holding a separate and distinct office, to hold
In State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, cited in the majority opinion, the petitioner, a defeated candidate, as an interested person under the statute which was incorporated in an earlier code as Section 9 of Chapter 109, sought to maintain a proceeding by an information in the nature of a writ of quo warranto to remove from the office of sheriff the opposing candidate who had been elected to that office. This Court held in points 1 and 2 of the syllabus, that “In a proceeding by way of information in the nature of a writ of quo war-ranto against a person who is claimed to have intruded into or usurped the office of sheriff of a county, such proceeding must be at the relation of some person interested, otherwise than as a citizen and taxpayer, unless such proceeding is instituted at the instance of the Attorney general or the prosecuting attorney of the county.”, and that “Where two parties are opposing candidates for the office of sheriff, and the one receiving the highest number of votes for the office disqualifies himself from holding the same by contracting to farm or sell the office or a portion thereof, such fact does not confer any interest in the office on the party receiving the minority of the votes cast at the election.” (Emphasis supplied). The opinion in that case indicates clearly that the interest of a person entitled to maintain such proceeding must be a peculiar or special private interest, different from that of a citizen and taxpayer or of the public in general, and that such interest must be an interest in the office itself. This is manifest from this statement. “The relator, in his petition, does not assert any claim to the office of sheriff, or interest in the office, but does state that he was candidate, and that W. B. Matthews was the opposing candidate, and received a majority of the votes cast at the election, and was declared elected. The petition claims and seeks to show that said Matthews was disqualified from holding said
In State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d 683, in which the relator, who had been appointed to the Clarksburg Water Board by the necessary vote of a de facto member, sought to establish his right to that office in a proceeding by an information in the nature of a writ of quo warranto against a respondent also occupying the office under color of right, was held not to be a person interested within the meaning of the statute and the judgment of the circuit court in sustaining a demurrer to the information and dismissing the proceeding was affirmed. In the opinion, with reference to the status of the relator, this Court said: “As we have said, he is not a de juré officer and, under the authorities which we have just cited, if the allegations of the information are taken as true, and on a demurrer they must be so taken, he is not a de facto officer. Does he then have such interest in the office in question that he can maintain this information? Certainly not. If he is not a de jure or de facto officer, his interest does not rise higher than that of the relator in the case of State ex rel. Depue v. Matthews,
In Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757, an election contest instituted by a defeated candidate challenging the eligibility of the elected opposing candidate to hold the office of circuit clerk of Mingo County, in discussing and denying the contention of the contestee that an information in the nature of a writ of quo warranto was the proper remedy to be invoked by the contestant instead of an election contest, this Court used this language: “As the contestant is not an interested person, and has no right to the office, he can not resort to an information in the nature of a writ of quo warranto, which can not be maintained by a person who has been defeated in the election at which he was a candidate. Section 4, Article 2, Chapter 53, Code, 1931; State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994.” (Emphasis supplied).
In Newman v. United States of America ex rel. Frizzell, 238 U. S. 537, 35 S. Ct. 881, 59 L. Ed. 1446, the relator, a citizen and taxpayer of the District of Columbia instituted, by leave of court, in the Supreme Court of the District, a proceeding in quo warranto for the purpose of ousting thé respondent from the office of civil commissioner to which he had been appointed by the President of the United States. An Act of Congress relating to a proceeding in quo warranto provided in part that “The Attorney General or the district attorney may institute such proceeding on his own motion, or on the relation of a third party.”, and that: “If the Attorney General and the District Attorney shall refuse to institute such proceedings on the request of a person interested, such person may apply to the court by verified petition for leave to have said writ issued; and if in the opinion of the court the reasons set forth in said petition are sufficient in law, the said writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of said interested person, on his compliance with the condition prescribed in the last section as to security for costs.”
In the opinion in the Newman case, discussing the requisite interest of a private citizen to maintain such proceeding, the court said: “Considering the ancient policy of the law and the restrictions imposed by the Code, it is evident that in passing this statute Congress used the words ‘third person’ in the sense, of ‘any person’ and the phrase ‘person interested’ in the sense in which it so often occurs in the law — prohibiting a judge from presiding in a case in which he is interested; preventing a juror from sitting in a case in which he is interested; and permitting interested persons to institute quo warranto proceedings. In the illustrations suggested, the interest which a judge has as a member of the public would not disqualify him from sitting in a case of great public importance and in which the community at large was concerned. The interest which disqualifies a juror from serving, as well as the interest which would authorize this plaintiff to sue, must be some personal and direct interest in the subject of the litigation. The same definition has often been given in quo warranto cases. The interest which will justify such a proceeding by a private individual must be more than that of another taxpayer. It must be ‘an interest in the office itself and must be peculiar to the applicant.’ Demurest v. Wickham, 63 N. Y. 320; Commonwealth v. Cluley, 56 Pa. St. 270; State v. Taylor, 208 Missouri, 442; Robinson v. Jones, 14 Florida, 256; In re Stein, 39 Nebraska, 539; State ex rel. Depue v. Matthews, 44 W. Va. 372, 384; Com. ex rel. Butterfield v. McCarter, 98 Pa. St. 607; State v. Boal, 46 Missouri, 528; Brown v. Alderman, 82 Vermont, 529; Mills v. Smith, 2 Washington, 572; Antrim v. Reardan, 161 Indiana, 250; Harrison v. Greaves, 59 Mississippi, 455; Andrews v. State, 69 Mississippi, 740(3), 746; Toncray v. Budge, 14 Idaho, 639; Hudson v. Conklin, 73
In a previous passage in the same opinion, the court also used this pertinent language: “In a sense — in a very important sense — every citizen and every taxpayer is interested in the enforcement of law, in the administration of law, and in having only qualified officers execute the law. But that general interest is not a private but a public interest. Being such, it is to be represented by the Attorney General or the District Attorney who are expected by themselves or those they authorize to institute quo warranto proceedings against usurpers in the same way that they are expected to institute proceedings against any other violator of the law. That general public interest is not sufficient to authorize a private citizen to institute such proceedings; for if it was, then every citizen and every taxpayer would have the same interest and the same right to institute such proceedings and a public officer might, from the beginning to the end of his term, be harassed with proceedings to try his title.”
It is manifest, from the holdings and the statements of this Court in the cited cases of State ex rel. Depue v. Matthews, State ex rel. Scanes v. Babb, and Slater v. Varney, and the holding and the quoted passages in the Newman case, that the interest of a private citizen or 'a public officer, other than the Attorney General, the district attorney, or the prosecuting attorney, to entitle him to maintain an information in the nature of a writ of quo war-ranto must be a personal, peculiar, and direct interest as distinguished from a general or public interest in the subject of the litigation, and that this Court and the Supreme Court of the United States in respectively considering and deciding the cases just cited had in mind and were speaking of an interest by the relator, in an information in the nature of a writ of quo warranto, in the office involved in such proceeding instead of an interest in the manner in which the duties of the office are performed or conducted or in the qualification of the officer to hold the office. The one is a personal, peculiar, or direct interest of a private citizen or a public official, other than the At
The fundamental error in the principle expressed in point 1 of the syllabus and the intolerable consequences likely to emanate from it stem from the failure or the refusal of the majority to differentiate between a personal, private or peculiar interest, in a particular public office, of a private citizen or a public officer, and the general interest of the public, including citizens, taxpayers and public officials alike, in the manner in which the office is administered or conducted and in the selection of qualified persons to hold public office.
I assume that it can not be seriously contended that any of the relators in each of these proceedings could legally be elected to or could hold or occupy the office of councilman which either respondent now claims or presently occupies. Section 7 of the charter of the City of Clarks-burg provides that the council shall be composed of nine members, one such member to be elected from and to be a resident in each ward of the city; and under the charter no councilman from one ward can claim or hold or occupy the office of councilman from any other ward of the city. For that reason none of the relators has any claim to or interest in the office of councilman from the ward from which either respondent, according to the election returns, was elected at the municipal election in April, 1953, and none of them satisfies or complies with the essential requirement indicated in the cases of State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994; State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d 683; and Newman v. United States of America ex rel. Frizzell, 238 U. S. 537, 35 S. Ct. 881, 59 L. Ed. 1446, that a relator, other than the
The holding in point 1 of the syllabus is contrary to the weight of authority as established by the decisions in other jurisdictions under statutes substantially similar to the statutes of this State relating to a writ of quo war-ranto, Code, 1931, 53-2-1, 2, and 3, and an information in the nature of a writ of quo warranto, Code, 1931, 53-2-4.
In the leading case of Mills v. The State of Washington ex rel. Smith, Mayor, 2 Wash. 566, 27 P. 560, the Mayor of the City of Vancouver, in his official capacity, instituted a proceeding by information in quo warranto to oust the respondent from the office of councilman of the city to which he was appointed and in which he was confirmed by the council upon the nomination of a mayor pro tern in the absence from the meeting of the mayor who, if present, was authorized to make the nomination. The statute provided in part that the information may be filed by the prosecuting attorney upon his own relation, whenever he shall deem it his duty to do so, or by any other person, on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information. The Supreme Court of Washington held that the mayor of a city did not have such an interest in the office of city councilman as entitled him to maintain, on his own relation, an information in the nan ture of a writ of quo warranto to oust an alleged usurper of such office; that the usurpation affected the public generally; and that the remedy was by a proceeding on the part of the state. In the opinion the Court said: “It is difficult to see what interest the mayor has in the office of a city councilman that any other citizen has not. He is interested in the rightful administration of the laws, but so is every other citizen. If he be a taxpayer he is interested in an economical administration, but so is every other taxpayer in the city.”
In the Illinois case of People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 17 N. E. 2d 629, two separate petitions for leave to file and prosecute a complaint in quo warranto were filed in the circuit court under a statute which provided that any citizen “having an interest in the question, on his own relation” may file a complaint in quo warranto, if the state’s attorney or the attorney general fails or refuses, and the court grants leave, to file such complaint. The prayer of the petitions was denied by the trial court and on review by the Appellate Court of the Fourth District of Illinois the cases were consolidated and heard together. Both plaintiffs were citizens, residents and legal voters of a certain township. One plaintiff was also the clerk of the township and the other plaintiff was a justice of the peace and, by virtue of that office, a member of the
In the opinion the court pointed out the distinction between the personal and peculiar interest required of a person to enable him to maintain a complaint in quo war-ranto on his own relation and the interest possessed by him in common with other members of the general public, and emphasized the intolerable consequences which would result to public officials if the proceeding could be maintaned by a citizen, a taxpayer, or other public official, whose only interest in the proceeding was an interest possessed by him in common with the general public. In discussing these questions the court used this presently pertinent and applicable language:
“Under the allegation of plaintiffs’ petitions and complaints their interests may be grouped in two classifications. First, as citizens and residents of the township they have an interest in having the office of supervisor filled by one who has been duly elected and has qualified by filing the bond required by statute. If the misfeasance and misconduct alleged in the petitions, complaints and affidavits amount to a forfeiture of the rights to hold the office, upon which we express no opinion, the plaintiffs are interested as citizens and residents of the township in having the office filled by one who will properly perform his official duties. The interest which plaintiffs have as citizens and residents of the township is not peculiar to them but is common to every citizen and resident of the
“The other classification of plaintiffs’ interest would be that interest they have as public officials of the township in having one hold the office of supervisor that will perform his duties that they may properly perform theirs. It is apparent that such interest attaches only to the performance of the duties of the office. If the defendant has failed to perform the duties of the office and such failure amounts to statutory grounds for forfeiture and he was ousted by reason of such failure then plaintiffs’ interest as township officials terminates when he is ousted. Under this classification of interest the office of supervisor might be occupied by an usurper yét if he performed the duties of the office in such a way that plaintiffs could perform their official duties then plaintiffs would have no interest. The interest must he in the office itself and not merely in the performance of the duties of the office. If plaintiffs’ theory, that their interest as public officials is sufficient to entitle them to file a complaint in quo warranto, was adopted it would make it possible for one public official
The interest of the plaintiffs in People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 17 N. E. 2d 629, as indicated by the foregoing quotations from the opinion in that case, is legally identical with the interest possessed by the relators in the instant proceeding. Their interest as members of the council of the City of Clarksburg is not an interest in the office of any other member of the council but is an interest “merely in the performance of the duties of the office.” It is not an interest personal and peculiar to them but is an interest that is possessed by citizens, taxpayers, public officials and members of the general public alike and is clearly not such an interest as entitles a relator to maintain an information in the nature of a writ of quo warranto within the meaning of the applicable statute of this State.
That the interest of the relators is an interest which they share and possess in common with the general public, though it may affect them in greater degree than it does the public generally, is made clear, by the labored effort of the majority to show that it is an-interest different from that of the members of the general public, in this passage in the majority opinion: “The charter of the City of Clarksburg provides for- a city council of nine members. It also provides that five members thereof shall constitute a quorum, and that a majority vote of the members shall be necessary for the transaction of business, including the enactment of ordinances under which the municipality will be operated. Thus it will be seen that the vote of any member may often determine the success or failure of any motion before that body. This being true, can it be said, by any process of reasoning, that each member of the council is not interested, as an individual and as an officer, in having only properly elected officers participate
Despite the statements to the contrary in the foregoing quotation, the effect of the holding that the relators are entitled to maintain these proceedings is that any public official, citizen, taxpayer or member of the public generally, who claims no right or title to an office held by any other public official may, contrary to the holding of this Court in State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, and State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d 683, maintain an information in the nature of a writ of quo warranto to oust any public official from.office when any such member of the general public is dissatisfied with the manner in which such official performs or discharges the duties, of his office. The effect of such holding is also to broaden the scope of the statute, to render unnecessary any proceeding in behalf of the public by the Attorney General, or the prosecuting attorney, and to emasculate the statute by removing the clearly recognized limits to the scope of its operation which until
Although the manifest purpose of the majority in employing the above quoted language is to discover a personal, peculiar and direct interest of the relators in the office of councilman presently occupied by each of the respondents instead of an interest possessed by the relators in common with every citizen, taxpayer, public officer and member of the general public of the municipality, the language used in the majority opinion clearly and distinctly shows that the interest of the relators is merely an interest which they possess in common with the members of the general public of the municipality who are also interested in the manner in which the respondents vote and discharge the duties of their respective offices and in their qualifications to hold such offices. The interest of the relators, as delineated in the foregoing quotation from the majority opinion, is a public interest identical in character with the interest of the plaintiffs as described in" portions of the opinions in the cases of Newman v. United, States of America ex rel. Frizzell, 238 U. S. 537, 35 S. Ct. 881, 59 L. Ed. 1446; Mills v. The State of Washington ex rel. Smith, Mayor, 2 Wash. 566, 27 P. 560; and People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 17 N. E. 2d 629, heretofore quoted in this opinion; and in each of the cases just cited an interest of that nature was held to be not such an interest as entitled the relator to maintain an information in the nature of a writ of quo warranto.
In support of its conclusion that the relators may maintain these proceedings the majority invokes this quotation from 44 Am. Jur., Quo Warranto, Section 76: “Where quo warranto is an available remedy to test the right to act as a director or other officer of a private corporation or •association, the proceedings may be brought upon the relation of anyone having the necessary interest, such as, another director, a trustee, or a stockholder.” The quoted principle of law has no present application. A! stockholder, a director who is also a stockholder, and a trustee of a
The difference between the personal and peculiar property interest of a director, a trustee, or a stockholder, in a private corporation and the interest of any person, whether he be a public officer, a citizen, a taxpayer or a member of the general public, in a public office is so conspicuous and substantial that any attempted analogy between such interests with respect to the right of any member of either group to maintain an information in the nature of a writ of quo warranto is utterly lacking in per-tinency, force, and effect, and lends no support to the decision of the majority in sustaining the right of the relators to' maintain these proceedings.
I emphatically disagree with the statement in the majority opinion to the effect that, as the Legislature in enacting Section 7, Article 6, Chapter 6, Code, 1931, established a separate remedy for the removal of disqualified municipal officers before or after their induction to office, and authorized “any other officer” to maintain the proceeding created by that statute, there is no sufficient reason for denying such officer the right to maintain an information in the nature of a writ of quo warranto to accomplish the same result. It by no means follows that a person who is not entitled to invoke the intentionally restricted remedy of an information in the nature of a writ of quo warranto may invoke that remedy because
If the Legislature, in enacting Section 7, Article 6, Chapter 6, Code, 1931, which provides for the removal from office, by the circuit court, of any pérsons holding certain county, magisterial district, independent school district, and municipal offices, upon designated grounds and 'for enumerated causes, and authorizes the county court in connection with county offices or designated officers, or five or more voters, in connection with county, district or municipal offices, to maintain a proceeding for that purpose, had intended to permit the'county court or the designated officers, or five or more voters, to maintain an information in the nature of a writ of quo warranto, it would have amended or changed the statute relating to that proceeding in the manner and to the extent necessary to effectuate that result. That it has not done so clearly signifies its lack of any such intention.
By énacting'Section 7, Article 6, Chapter 6, Code, 1931, the Legislature merely intended to provide a more com
By the principle enunciated in point 1 of. the syllabus, any member or members, singly or collectively, of,a .court, a board, a. commission, a municipal council or other public tribunal composed of two or more members, who questions the qualifications of any of'his associates to hold his
I am fearful of the intolerable consequences which may result from the holding in point 1 of the syllabus and my apprehension of their future occurrence impels me to register this dissent.
I accept as correct the principles stated in points 2, 3 and 4 of the syllabus; but, as in my opinion the relators are not entitled to maintain an information in the nature of a writ of quo warranto, those principles can not be applied or enforced in these proceedings.
For the reasons stated I would deny the motion of the relators to reverse and would affirm the judgment of dismissal rendered by the circuit court in each proceeding.
I am authorized to say that Judge Browning concurs in the views expressed in this dissent.
