State ex inf. Graham v. Hurley

• Decision Date: 13 September 1976
• Docket Number: No. 59330,59330
• Citation: 540 S.W.2d 20
• Parties: STATE of Missouri ex inf. Edward C. GRAHAM, Prosecuting Attorney in and for Mississippi County, ex rel. Carol Bishop, Resident of and Taxpayer in Mississippi County, Relator-Respondent, v. Lindsay HURLEY, Judge of the County Court of Mississippi County, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 20

540 S.W.2d 20

STATE of Missouri ex inf. Edward C. GRAHAM, Prosecuting

Attorney in and for Mississippi County, ex rel. Carol Bishop, Resident of and Taxpayer in Mississippi County, Relator-Respondent, v. Lindsay HURLEY, Judge of the County Court of Mississippi

County, Respondent-Appellant.

No. 59330.

Supreme Court of Missouri, En Banc.

Sept. 13, 1976.

Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for relator-respondent.

Marvin S. Wood, Clayton, for respondent-appellant.

SEILER, Chief Justice.

This is an information in the nature of quo warranto brought by the prosecuting attorney of Mississippi county, Edward C. Graham, at the relation of Carol Bishop, a citizen and taxpayer of Mississippi county, to oust appellant Lindsay Hurley from the office of county judge for violation of the nepotism provisions of Mo.Const. Art. VII, § 6. The trial court granted summary judgment for relator Bishop and ordered the ouster from which judgment Hurley appeals. We affirm.

On December 27, 1973, the county court of Mississippi county, including appellant Hurley, voted to establish a county ambulance service. This service was to be administered through the office of county Sheriff W. J. Simmons, who was to serve as its director. The county court authorized Sheriff Simmons to hire two additional deputies to serve as ambulance drivers and attendants. Sheriff Simmons subsequently hired William Woods, appellant Hurley's son-in-law, as one of the drivers.

On January 10, 1975, the county court, including appellant Hurley, decided to sever the operation of the ambulance service from the sheriff's office. After thanking Sheriff Simmons for his contributions to the ambulance service, the court considered the matter of appointing a new director. Judge Adkisson, the presiding judge, moved that William Woods be appointed the new ambulance service director. During discussion of this motion, Judge Bennett voiced an objection to this appointment, but relented, ¹ and Woods was unanimously appointed the new director with appellant Hurley participating in the vote.

Prosecuting Attorney Graham, after deciding to participate in this action and receiving leave to file by the circuit court, commenced this litigation by filing an information at the relation of Bishop. The circuit court also granted relator Bishop's counsel leave to file a written entry of appearance for her.

The issues presented by this appeal are (1) whether relator possesses a special interest in the subject matter of the litigation sufficient to entitle her to maintain an action in the nature of quo warranto, and (2) whether appellant Hurley's participation in the vote appointing his son-in-law, William Woods, to the directorship of the county ambulance service constituted a naming or appointing to public employment in violation of the nepotism provisions of Mo.Const, Art. VII, § 6.

An information in the nature of quo warranto adjudicates title to a public office or state franchise for the purpose of protecting the public against usurpers. Section 531.010, RSMo 1969; State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527, 530, 531 (banc 1941); State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 943--944 (banc 1938); State ex rel. Attorney General v. Vail, 53 Mo. 97, 109 (1873). Under English common law, quo warranto was a prerogative writ of the Crown to be filed only by the attorney general. This form of action persists in Missouri. The attorney general, prosecuting attorney, or circuit attorney may file an information ex officio, by virtue of the power of his office without leave of court when such an action would serve the public interest. State ex inf. Danforth v. Merrell, 530 S.W.2d 209, 214--215 (Mo. banc 1975); State ex inf. Wallach v. Beckman, 353 Mo. 1015, 185 S.W.2d 810, 813 (1945); State ex inf. McKittrick ex rel. City of Campbell v. Arkansas-Missouri Power Co.,339 Mo. 15, 93 S.W.2d 887, 892 (banc 1936); State ex inf. McAllister ex rel. Manion v. Albany Drainage Dist., 290 Mo. 33, 234 S.W. 339, 341 (banc 1921); State ex rel. Boyd v. Rose, 84 Mo. 198, 202 (1884).

Later in England, the Statute of Anne, 9 Anne c. 20 (1710), broadened the form of action to allow the attorney general to file an information in the nature of quo warranto at the relation of a private party. See generally, Note, Quo Warranto in Missouri, 1972 Wash.U.L.Q. 751. This action also exists in Missouri and is governed by § 531.010, RSMo 1969 and Rule 98.01. Our statute and rule provide:

'In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Attorney General of the state, or any circuit or prosecuting attorney of the county in which the action is commenced, shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil actions, an information in the nature of a quo warranto, at the relation of any person desiring to prosecute the same . . ..'

When proceeding under the statute, as all private relators must, it is required that the government attorney exercise his discretion in the public interest when deciding whether to lend his name to the action. State ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023, 1026--1027 (1907); State ex rel. Smith v. Gardner, 204 S.W.2d 319, 322 (Mo.App.1947). Similarly, an action pursuant to the statute requires that the court in its discretion grant the government attorney leave to file the information. State ex inf. Berkley v. McClain, 187 Mo. 409, 86 S.W. 135, 136 (1905); State ex rel. Hequembourg v. Lawrence, 38 Mo. 333, 334--335 (1866); State ex rel. Attorney General ex inf. Lawrence v. Balcom, 71 Mo.App. 27, 28 (1897). The discretion of the government attorney is complete. State ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023, 1026--1027 (1907). Unless both agree, the private relator can proceed no farther.

An additional requirement for the successful maintenance of a quo warranto action at the relation of a private party is that the relator have an interest in the subject matter of the litigation apart from that of a member of the general public. State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation, 309 Mo. 587, 274 S.W. 413, 415 (banc 1925); State ex inf. Killam ex rel. Clare v. Consolidated School Dist., 277 Mo. 458, 209 S.W. 938, 941 (1919); State ex inf. Burges ex rel. Marbut v. Potter, 191 S.W. 57, 58 (Mo.1916); State ex inf. West ex rel. Thompson v. Heffernan, 243 Mo. 442, 148 S.W. 90, 92 (1912); State ex rel. Kempf v. Boal, 46 Mo. 528, 531 (1870); State ex rel. White v. Small, 131 Mo.App. 470, 109 S.W. 1079, 1082 (1908). The purpose of this requirement is to prevent the harassment of public officials at the whim of private persons. State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527, 528--529 (banc 1924); State ex inf. West ex rel. Thompson v. Heffernan, 243 Mo. 442, 148 S.W. 90, 92 (1912). This is a valid purpose, but appellant's contention in this regard does not warrant dismissal of this action.

The appellant relies upon two cases for the proposition that a private relator must possess a special interest in order to bring an action in the nature of quo warranto. The first case so relied upon is State ex rel. Schneider's Credit Jewelers, Inc. v. Brackman, 260 S.W.2d 800 (Mo.App.1953) which did not concern a public office, but rather a challenge to the right of a corporation to do business under a state charter brought by a county prosecuting attorney upon the relation of private parties. The case was transferred to this court, where it was treated as if it had originally been brought here, State ex rel. Schneider's Credit Jewelers, Inc. v. Brackman, 272 S.W.2d 289 (Mo. banc 1954). It is crucial to recognize that we specifically declined at that time to discuss the special interest of the relators. Id. at 294. Rather, our decision turned upon the view that the authority of a county prosecuting attorney to bring an action in the nature of quo warranto is limited to matters concerning the state found within his jurisdiction, namely, the county. Consequently, the county prosecuting attorney had no authority to challenge a state-wide charter authorization, and any such challenge must be left to the attorney general proceeding ex officio or under the statute. As such, Schneider's offers appellant's position no support.

The second case relied upon by appellant is State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527 (banc 1924). In Pickett leave of court was not expressly given to prosecute the action in the nature of quo warranto, and the court stated:

'It is clear that the circuit court did not pass upon either the respondent's title or his eligibility with respect to the office in question. The dismissing of the proceeding . . . was tantamount to the quashing of the writ on the ground that it was improvidently issued. The propriety of the court's action in so doing is the matter presented by the record for consideration.

'. . .

'But leave of court to file the information is essential to the maintenance of the action. . . .

'It is also well settled that leave to file the information at the instance of a private relator will not be granted as a matter of right, even though the title in question may be defective. The court should exercise a sound discretion in accordance with the principles of law and the circumstances in each particular case.' Id. at 528.

In support of the above, the court cited State ex rel. Haines v. Beechner, 160 Mo. 78, 60 S.W. 1110 (1901), where the court quoted at length from State ex rel. McIlhany v. Stewart, 32 Mo. 379 (1862) discussing the historical development and expansion of the writ, saying as follows: ". . . (I) nformations at the relation of private persons, whether under the statute of Anne or under our statute, or exhibited at the common law, can be filed only by leave of the court. The information is not granted as of course, but depends upon the...