State ex rel. Kemper v. Beecher ( 1846 )

Wood, C. J.

The question raised in this case, is upon the sufficiency of the defendant’s answer. All the facts which are well pleaded in it, are admitted by the demurrer. Does it, then, coyer all the material averments in the information ? If not, that averment which is not sufficiently answered, being admitted, as a legal consequenc e, judgment of ouster follows.

A legal appointment to the professorship of theology in the institution, due qualifications, and a legal entry on the duties of the office, are, in our opinion, well pleaded. There was, then, no usurpation. But the averment is, that the defendant does now, without legal warrant or qualification, exercise the said office, &c., and the defendant answers this charge by the averment to which I have before alluded, of a legal appointment, qualification, and entry upon the duties of the office, and then states what he claims as a legal conclusion, that he has ever since held and exercised the same, as he has a legal right to do!

It appears to us, this is not enough. The third section of the charter provides, that all the professors shall be members of the Presbyterian Church, in good standing, under the care of the General Assembly of that Church, in the United States. While professors, they must he members, &fC., with the qualifications required by the charter. Whenever they cease to possess the qualifications, the office is forfeited, and they may be ousted. And if once qualified, in a case and upon a charge like this, the defendant cannot rely upon the presumption of the continuance of such qualification, and demand of the State proof of the negative. But the authorities require of him to set out all the facts necessary to constitute a good title specifically to hold on to the office. He must aver, that he is now a member, fyc., in good standing, fyc., or he shows no right to continue .to exercise the office, though his qualification and warrant may have been sufficient in the beginning.

Charles Fox, and Wrights 8f Miner, for the Relator. Henry Starr, for the Defendant.

The demurrer to the answer is sustained, and the défendant may have leave to amend his answer.