
    The State of Missouri upon Information of Circuit Attorney, Appellant, v. Alfred C. Bernoudy, Respondent.
    
      Constitution — Officers—Quo warranto. — Under the new Constitution, officers failing to take and file the oath prescribed, forfeit their offices, and upon a proper information judgment of ouster will be entered.
    Bernoudy was elected recorder for St. Louis county in 1860. An ordinance of the Convention assembled in 1865, removed from office all the judges, clerks, recorders, &e., and authorized the Governor to fill the vacancies thus created. The Governor appointed J. C. Conrad to the office held by Bernoudy, who, refusing to quit, an application was made to the St. Louis Circuit Court for a quo warranto. The Circuit Court held, that the Convention had exceeded its powers, and that the office was not vacant, from which judgment an appeal was taken. After the new Constitution went into effect, Bernoudy having failed to take and file the oath therein prescribed, application was made to the Supreme Court for an information in the nature of a quo warranto,- alleging that Conrad had been appointed recorder and had taken the oath.
    The defendant appeared and moved for a change of venue, for the reasons that the judges were prejudiced against him, and were also interested in the question at issue. The motion was overruled.
    Defendant then demurred to the petition, because the petition did not name any person at whose relation it was filed. The demurrer was overruled.
    Defendant then answered, alleging that the Constitution was to take effect when it should appear that at the election held June 6, 1865, a majority of the votes were cast in favor of its adoption, and denying that it did appear that a majority of the votes cast were in favor of the new Constitution— denying Conrad’s appointment to fill any vacancy — setting up also the appeal pending from the judgment of the St. Louis Circuit Court, and alleging also, that, by a special agreement between Conrad and himself, said Conrad was estopped from asserting that there was any vacancy caused by the respondent’s failure to take and file the oath, which respondent admitted he had not taken, but that the whole matter was to be decided by the appeal.
    The respondent also moved to dismiss the information, because the St. Louis Circuit Court only had jurisdiction, and the St. Louis County Court alone could fill the vacancy if any existed in the office, and because there was another action pending in this court on appeal. This motion was overruled.
    The circuit attorney moved for judgment, because the answer upon its Face showed that the respondent was not entitled to retain the office.
    
      G. Von Deutch, for appellant.
    
      Wm. C. Lackland, for respondent.
   Holmes, Judge,

delivered the opinion of the court.

This is an ex-officio information in the nature of quo warranto, filed in this court by the circuit attorney of the county of St. Louis against the defendant, for usurpation of the office of recorder of said county, and praying judgment of ouster and costs. The defendant filed his answer or plea, on which the circuit attorney on behalf of the State now asks judgment by motion in the nature of a demurrer. The plea or answer of the defendant contains nothing which constitutes any valid defence in law or fact to the information.

The motion is sustained; and the court further considering that no evidence is offered to charge the defendant with any evil intent, and it being probable that he acted from mistaken views only, will not avail itself of the power given by law to impose a fine on him, and will condemn him to pay the cost only of this proceeding.

The other judges concur.  