State ex rel. Johnston v. Badger , 90 Mo. App. 183 ( 1901 )

GOODE, J.

This action is an information in the nature of a writ of quo warranto filed by John T. Burgess, prosecuting attorney of Barry county, at the relation of James Johnston, against L. W. Badger, who is charged with usurping and illegally holding the office of treasurer of Monett, a city of the fourth class in said county. Section 5907, Revised Statutes 1899, empowers the mayor of such a city to appoint, with the consent and approval of a majority of the members elected to the board of aldermen, a treasurer, street commissioner, city attorney, and such other officers as he may by ordinance be authorized to appoint. Section 37 of the revised ordinances of' said city is as follows: “The mayor, with the consent and approval of a majority of the members elected to the board of aldermen, shall appoint, on the second Tuesday in April of each year, a street commissioner, a treasurer, city attorney, city engineer, superintendent of waterworks, and other regular officers that may be provided for by ordinance, who shall hold their offices until their successors are appointed and qualified; and iñ case of vacancy in any of said offices the mayor, by and with the advice and consent of the board of aldermen, shall fill such vacancy by appointment.”

On May 28, 1901, tbe mayor, J. S. Earrow, by a signed writing appointed the relator, James Jobnston, treasurer, for one year. Tbe council authorized tbe action before it was done and approved tbe record of it afterwards. Johnston was forthwith commissioned, and qualified by giving bond and taking tbe oath of office. On May 31, a notice was delivered to Badger, who bad theretofore been acting as treasurer, to turn over to Jobnston, as bis duly elected and qualified successor, all moneys, rights and credits belonging to tbe city of Monett, which notice was signed by tbe mayor and four aldermen. Badger refused to surrender tbe office or property, and this proceeding was therefore instituted.

Tbe trial went off on a demurrer to tbe respondent’s evidence. . Appellant stood on bis demurrer and final judgment was rendered, ousting Badger from tbe office and prohibiting him from using, exercising or meddling with its duties and franchises. He came to this court on frivolous exceptions and with no showing whatever against relator’s title or in favor of bis own. Tbe information is carped at but it was carefully drawn and is sufficient. A treasurer’s qualifications, as indeed those of all officials of cities of tbe fourth class, are prescribed by statute. R. S. 1899, secs. 5916 and 5974. Public laws need not be pleaded nor their provisions set out. . Tbe information alleged Jobnston possessed tbe requisite qualifications, and tbe testimony proved be did. That was enough. State ex rel. v. Oddle, 42 Mo. 210. Appellant introduced no ordinance prescribing other qualifications, and if be bad, we should doubt its validity. At any rate, it was bis place to prove such an ordinance, if there was one. State ex rel. v. Oddle, supra.

There is no merit in the point that relator was appointed in May instead of on tbe second Tuesday of April. "While the statute mentions tbe latter date, it is so far directory as to time that a subsequent appointment is good.

It is further contended respondent failed to prove Earrow was the duly elected, qualified and acting mayor when he appointed relator. Appellant says in his answer he was acting as mayor and the records and documents in evidence show he was. Acts of de facto officers are presumed to be valid against collateral attacks. If Earrow was de facto mayor, his appointment of a treasurer was no more subject to collateral impeachment than anything else he did, especially as his title to the office of mayor is in no way denied or challenged. State v. Holcomb, 86 Mo. 371; Wilson v. Kimmel, 109 Mo. 260.

On the day Johnston was appointed but prior to the act, the council, after reading and filing a protest lodged by Badger, declared the office of treasurer vacant. It seems Johnston was first appointed May 7, but on account of some informality was reappointed May 28. The argument that the office was not then vacant is fallacious. By the provisions of the ordinance, Badger’s term extended, at furthest, only until Johnston was appointed and qualified as his successor, unless his commission ran longer, which is not claimed.

It is strenuously urged that the minutes of the council proceedings were .improperly admitted in evidence because they were not signed by the city clerk. No statute has been .pointed out which requires them to be signed nor do we understand that to be a necessary condition of their reception as evidence. They became competent when a proper foundation for their admission was laid by the clerk’s testimony that they were records of council meetings as they purported to be, written by himself pursuant to his official duties. 1 Dillon on Municipal Corporations, (4 Ed.), sec. 293; Hutchinson v. Pratt, 11 Vt. 402.

Appellant’s behavior in this affair deserves severe censure and some punishment. It is no slight matter for an incumbent of an office to unlawfully and without color of right refuse to turn it over to Ms duly chosen successor. Such conduct is a flagrant defiance of law and disregard of the public will. No justification or excuse for appellant’s arbitrary usurpation was shown and he may consider himself fortunate that the trial court did not impose a fine against Mm as it might properly and justly have done.

The judgment is affirmed.

All concur.