State ex rel. Bornefeld v. Kupferle

Currier, Judge, delivered the opinion of the court. This is an information in the nature of a writ of quo warranto, the writ itself having long since fallen into obsoleteness and disuse. The information initiates a civil proceeding to try the right to an office, although in its origin and form it partakes of a criminal character, and is a substitute for the original writ of quo warranto. But the proceeding is essentially civil, and that is the established doctrine in this State. (Brison v. Lingo, 26 Mo. 496; McElhany v. Stewart, 32 Mo. 379; Hequembourg v. Lawrence, 38 Mo. 535.) The information, answer, and reply are subject to the rules governing corresponding pleadings in strictly civil causes — the information, in this regard, answering to the petition in civil suits. The question whether, in a given suit, the onus of proof is shifted from the complaining party to his antagonist, must be determined upon an examination of the pleadings, and not by reference to the form and history of an obsolete writ. Apply these principles to the pleadings in the present suit. The relator initiates the proceeding, and alleges in the information that he ivas duly appointed secretary of the German Insurance Company, and assumed the duties of that office; that on the second day of June, 1868, a minority of the board of directors of the insurance company held an illegal meeting, assuming to be a quorum, and without warrant of law appointed two associate directors, who thereupon assumed to act as such directors; that the board thus composed, illegally and without notice to the lawful secretary, in violation of the by-laws of the company, removed that officer and declared the office of secretary vacant, and thereupon appointed the respondent to fill the vacancy; that the respondent, without any legal appointment or authority, assumed the place, and unlawfully continues therein, excluding the relator — the legal secretary — therefrom. This is the substance of the information, although it contains various other recitals and averments, and sets out in full certain by-laws which are supposed to have been violated by the proceedings complained of. [158] The answer denies the material averments of the information, and then proceeds to allege affirmatively a state of facts substantially negativing the allegations of the information, and asserting the entire regularity and lawfulness of the proceeding of the directors in declaring the office of secretary vacant, and in the appointment of the respondent thereto. The relator replies, denying the affirmative allegations of the answer. In that state of the pleadings, on whom is the burden of proof ? That is the material question in the case. Aside from an admission on the part of the respondent that the relator was legally in office prior to the second day of June, 1868, and until the office was declared vacant on that day, neither party introduced any testimony at the hearing — each claiming that the burden of proof was on the other. The court held that the onus was upon the relator, and gave judgment accordingly. This is a civil proceeding, as already shown; and unless it is to be taken out of the category of other civil causes, in respect to the form and methods of trial, the judgment of the Circuit Court was clearly right. The answer denies everything, and the legal presumptions are all against the relator, and yet it is claimed that the affirmative is on his adversary. We hold differently. Every reasonable intendment is to be made in favor of the regularity of the proceedings complained of. They were the acts of a private corporation, and are to be presumed regular until the contrary appears. (22 Verm. 274.) It is alleged that two of the parties who acted were illegally put upon the board of directors. But they acted as directors notwithstanding, and were directors de faclo. (Ang. & A. on Corp. § 759.) In State ex rel. Danforth et al. v. Hunton et al., 28 Verm. 594, which was a quo warranto proceeding, it was held that although the form of the issue required the defendants to show causo, and would therefore seem to indicate that the defendants should go forward, still the onus was on the rélators; that the form of the issue did not correctly define the true position of the parties in regard to the presumptions of right. The court said: “The defendants are in possession of the office in question, and should be presumed regularly elected and entitled to [159] hold until the contrary be shown. The plaintiffs, then, are bound to make a case against them, and they should go forward in the proof and in the argument." This puts the matter on clear and reasonable ground, and there is nothing in our statute to require a different and less reasonable practice. The New York Court of Appeals, in a late case, held the same doctrine announced in the case from Vermont. ( See The People v. Lacoste, 37 N. Y. 192; State v. Brown, 34 Miss. 688.) This view of the subject substantially disposes of the motion in arrest. The proceedings of the board of defacto directors are to be presumed regular until irregularity is shown. They are not to be presumed irregular. The twenty-second by-law, set out in the information, provides that “officers, except the president and vice-president, shall hold their offices until removed by the majority of the board of directors on a charge of disability, violation of duty, or any other sufficient cause.55 Under this rule the secretary was removable when the directors should consider there was sufficient cause for it, and they were the judges of the sufficiency of the cause. No formal notice of charges or trial was requisite. A majority of the defacto board of directors considered that a sufficient cause of removal had arisen, and accordingly removed the secretary, as the information shows, and put another man in his place. Until their action is impeached by proof, it is to be presumed that they acted on sufficient grounds. Let the judgment be affirmed. The other judges concur.