State ex inf. Ellis ex rel. Patterson v. Ferguson

• Decision Date: 19 October 1933
• Docket Number: 32395
• Citation: 65 S.W.2d 97,333 Mo. 1177
• Parties: State of Missouri on the Information of Royle Ellis, Prosecuting Attorney of Barry County, at the Relation of Charles Patterson and Charles Vaughn, Relators, v. Dr. L. H. Ferguson, Mayor of the City of Monett
• Court: Missouri Supreme Court

65 S.W.2d 97

333 Mo. 1177

State of Missouri on the Information of Royle Ellis, Prosecuting Attorney of Barry County, at the Relation of Charles Patterson and Charles Vaughn, Relators, v. Dr. L. H. Ferguson, Mayor of the City of Monett

No. 32395

Supreme Court of Missouri

October 19, 1933

Writ of ouster issued.

A R. Dunn for relator.

(1) This court has held in a number of cases that, aside from the city of St. Louis, cities of this State are not political subdivisions of the State for the purpose of conferring appellate jurisdiction in the Supreme Court, citing Kansas City v. Neal, 122 Mo. 232; City of Tarkio v Loyd, 179 Mo. 604, and a number of other cases cited therein, but those cases have no application to cases of the nature of the present one. Outside of the jurisdictional question above referred to, this court has repeatedly held that cities, school districts, drainage districts, etc., are political subdivisions of the State. Morrison v Morey, 146 Mo. 543; State ex rel. v. Drainage District, 192 Mo. 517; Wilson v. King's Lake Drainage & Levee Dist., 237 Mo. 39, 139 S.W. 136; State ex rel. Stotts v. Wall, 153 Mo. 216; Carder v. Drainage Dist., 262 Mo. 556; Birmingham Drainage Dist. v. Railroad Co., 202 S.W. 407. It will also be noted that the language used in Section 12, Article VI of the Constitution, as it refers to political subdivisions of the State, is entirely different from that of the amendment relating to nepotism, the language in the former being as follows: "In cases where a county or other political subdivision of the State . . . is a party." While in the nepotism amendment, being Section 13, Article XIV, reads as follows: "Of this State or of any political subdivision thereof." It will be seen that there is a distinct difference in the reading of these two sections, the one section using the term, "other political subdivision," and the nepotism section using the term, "any political subdivision." (2) A city is only a political subdivision of the State. Jefferson City Gas Light Co. v. Clark, 95 U.S. 654; Worchester v. Railroad Co., 196 U.S. 549; Johnson v. San Diego, 109 Cal. 474, 42 P. 249; Guthrie v. New Viena Bank, 4 Okla. 197; Mount v. State, 90 Ind. 32; State v. Aberdeen, 34 Wash. 68; Commonwealth v. City of Covington, 128 Ky. 40, 107 S.W. 231; Wooster v. Plymouth, 62 N.H. 208; 43 C. J. 70, sec. 5, notes 88, 94.

L. W. Eubanks and D. S. Mayhew for respondent.

A relator's interest must be a private interest. If he has no special interest he is not entitled to maintain this action. State ex rel. Picket v. Carnies, 265 S.W. 527. The information in the above case was filed by the prosecuting attorney at the relation of a private individual and not ex officio. The proceeding therefor is controlled by statute. The two elements of that construction which exert a controlling influence in this case are, that the relator in such case must have an interest in the subject and the prosecution peculiar to him as it is to that of the general public. State v. Lawrence, 38 Mo. 536; State v. Boal, 46 Mo. 528; State v. Vale, 53 Mo. 97; State v. Berkeley, 140 Mo. 184; State v. McLain, 187 Mo. 409; State v. Heffernan, 243 Mo. 442. And leave of course must be obtained for the filing of the information for the institution of the suit. State v. Ins. Co., 8 Mo. 330; State v. Stone, 25 Mo. 555; State v. Stewart, 32 Mo. 379; State v. Buskirk, 43 Mo. 112; State v. Rose, 84 Mo. 198; State v. Railroad, 176 Mo. 687, 63 L. R. A. 761; State v. Becher, 160 Mo. 78; State v. Jobe, 205 Mo. 26; State v. Heffernan, 243 Mo. 442. When the relator is a proper person and will be allowed to file such proceeding is a preliminary inquiry for the court and on that inquiry, whether made before or after the information is filed, the court will ascertain what interest the relator has in the information.

OPINION

Hays, J.

Royle Ellis, Prosecuting Attorney of Barry County, by information in the nature of a quo warranto, at the relation of two other individuals designated, invokes the original jurisdiction of this court and seeks thereby to oust the respondent from the office of mayor of the city of Monett, a city of the third class, and from the exercise of the franchises and privileges of said office. To our alternative writ the respondent for his return demurred. The cause was by stipulation of the parties submitted on said writ and return.

The charges in the information are that respondent is the duly elected, qualified and acting incumbent of said office and by virtue thereof has full charge and management of the city waterworks system of said city, with authority to employ and appoint the ordinary employees to operate said system; that by virtue of his said office respondent is authorized to vote for and appoint the city collector of said city and did, in the exercise of such authority, in April, 1932, employ and appoint to the position of pumper for said water system one Carrol Cox, who was at said time a first cousin of respondent; that said Cox has retained said position since the date of his appointment; and further that in connection with the commissioners of said city respondent did vote for and appoint one Milburn Walker, a second cousin to respondent by marriage, to the office of city collector; and that respondent has since such employments were made continued to hold and usurp the office of mayor of the city of Monett, a city of the third class operated under the commission form of government, and to exercise the functions and duties of said office without legal warrant, -- all in violation of Section 13 of Article 14 of the Constitution of the State. The information is signed by said Ellis, as prosecuting attorney, and to it is appended his oath.

The grounds of the demurrer are essentially (1) That the information fails to set forth any special interest in the persons named as relators; (2) that the information fails to show that the respondent is an officer of the State or any political subdivision thereof within the contemplation of Article 14, Section 13 of the Constitution. The demurrer otherwise admits the matters charged in the information.

The first objection stated is well taken. In the heading and opening statement of the information it appears that the proceeding was ostensibly instituted in behalf of persons designated as relators, but nothing is stated in the body of the information with reference to the purported relators and no facts tending to show that they have any special interest in the case. Elementary rules of pleading require that such facts be stated in the information before a purported relator can have any standing in court as a relator in a proceeding such as this. [State ex inf. v. Heffernan, 243 Mo. 443, 148 S.W. 90; State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527.] But it does not follow that the demurrer must be sustained on that ground. The words indicating that the proceeding was one upon relation and designating the relators as such may be treated as surplusage, and if enough remains in the information to state a cause of action the demurrer should be overruled. The information was signed by the prosecuting attorney in his official capacity, with jurat appended. It will be observed that after the elision of the matter just stated the information contains sufficient allegations to state a cause of action in the nature of quo warranto and to show that it was brought by the prosecuting attorney in his official capacity as the representative of the State and for the protection of a public interest. [State ex rel. Attorney-General v. Railroad, 240 Mo. 35, 144 S.W. 1088.] The information is therefore sufficient in form and substance, and filed by a proper official, to invoke our original and constitutional jurisdiction to issue writs of quo warranto. [Constitution, Art. VI, Sec. 3; State ex rel. Brown, Prosecuting Attorney, v. McMillan, 108 Mo. 153, 18 S.W. 784; State ex rel. Brown, Prosecuting Attorney, v. Town v. Westport, 116 Mo. 582, 605, 22 S.W. 888; State ex rel. Weed v. Meek, 129 Mo. 431, 435 (bottom), 31 S.W. 913.]

We cannot agree to the second contention of the respondent, viz., that it is not shown that respondent is an officer of a political subdivision of the State.

Respondent grounds this phase of his demurrer upon Article VI, Section 12 of the Constitution, citing in support Smith v. City of Sedalia, 228 Mo. 505, 128 S.W. 735, and City of St. Joseph v. Georgetown Lodge, etc., 8 S.W.2d 978. In the first of which cases it was decided that the city of Sedalia, and in the second the city of St. Joseph was not a political subdivision within the constitutional provision aforesaid. Both those cases involved appeals to this court. In them the question of the jurisdiction of this court on appeal was involved and that question was dependent upon the construction of the phrase "title to an office under this State" as contained in said constitutional provision. With respect to the meaning of the phrase our court en banc in the case of State ex inf. Otto, Atty Gen., ex rel. Bales v. Hyde, 317 Mo. 714, l. c. 716, 296 S.W. 775, said: "This clearly means a case where the party holds the...