State ex Inf. McKittrick v. Murphy, 37454.

Citation148 S.W.2d 527
Decision Date28 February 1941
Docket NumberNo. 37454.,37454.
PartiesSTATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator, v. ANDREW J. MURPHY, SR., EDWARD C. CROW and HARRY P. DRISLER, Members of the Unemployment Compensation Commission of Missouri, and THE UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI.
CourtUnited States State Supreme Court of Missouri
148 S.W.2d 527
STATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator,
v.
ANDREW J. MURPHY, SR., EDWARD C. CROW and HARRY P. DRISLER, Members of the Unemployment Compensation Commission of Missouri, and THE UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI.
No. 37454.
Supreme Court of Missouri.
Court en Banc, February 28, 1941.

[148 S.W.2d 528]

Quo Warranto.

OUSTER OF RESPONDENTS AND A FINE OF ONE DOLLAR AND COSTS ORDERED.

Roy McKittrick, Attorney General, and J.E. Taylor, Assistant Attorney General, for relator.

(1) Quo warranto is a proper remedy to prevent the members of the Unemployment Compensation Commission from removing its office and headquarters from the seat of government at Jefferson City, Missouri, Sec. 1618, R.S. 1929; 51 C.J., sec. 10, p. 314; Cochran v. McCleary, 22 Iowa, 75; State ex rel. Allen v. Dawson, 284 Mo. 434, 224 S.W. 824; State ex inf. Walsh v. Thatcher, 340 Mo. 865, 102 S.W. (2d) 938; High on Extraordinary Remedies (3 Ed.), p. 557; Arts. IV, V, Secs. 56, 1, Mo. Const.; Sec. 4 (a), Unemployment Comp. Laws, Laws 1939, p. 926; State ex inf. Crow v. Fleming, 147 Mo. 1, 44 S.W. 758; 23 Am. & Eng. Encyc. of Law (2 Ed.), p. 639, sec. (c), pp. 640-641, and p. 644, sec. (8); State ex inf. Walker v. Equitable Loan & Inv. Co., 142 Mo. 341, 41 S.W. 916; Orchard v. Board of Commrs. of Sierra County, 76 Pac. (2d) 41; Poole v. Dallas County Levee Dist. No. 9, 128 S.W. (2d) 502; State ex rel. Harrington v. Pompano, 188 So. 610. (2) Under the provisions of Section 56 of Article IV, and Section 1 of Article V of the Constitution of Missouri, the office and headquarters of the Unemployment Compensation and the public records, books and papers pertaining thereto must be kept and maintained at the seat of government in the City of Jefferson. Secs. 56, 1, Arts. IV, V, Mo. Const.; State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1010; Bush v. State Highway Comm., 329 Mo. 843, 46 S.W. (2d) 854; Murphy v. Hurlbut Undertaking & Embalming Co., 142 S.W. (2d) 449; 59 C.J., sec. 41, p. 76. (3) Under the provisions of Section 4(a) of the Unemployment Compensation Law (Laws 1939, p. 926), the office of the Unemployment Compensation Commission must be maintained in the City of Jefferson. Sec. 4(a), Unemployment Comp. Law, Laws 1939, p. 926; Lamar Township v. Lamar, 261 Mo. 189, 169 S.W. 12; Brown v. Patterson, 224 Mo. 658, 124 S.W. 1; Joplin Supply Co. v. Smith, 182 Mo. App. 212, 167 S.W. 649; Artophone Corp. v. Coale, 133 S.W. (2d) 343. (4) If Section 4(a) of the Unemployment Compensation Law should be construed to authorize the Unemployment Compensation Commission to remove its office from Jefferson City, it would be unconstitutional and void. Gist v. Construction Co., 224 Mo. 388, 123 S.W. 892; Sec. 28, Art. IV, Mo. Const.; State v. Sloan, 258 Mo. 314, 167 S.W. 500; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W. (2d) 1162.

Edward C. Crow and Harry G. Waltner, Jr., for respondents.

(1) A demurrer is a legally proper way to determine whether or not an ex officio information in quo warranto charging usurpation of a franchise and setting forth in detail the facts constituting such usurpation states a cause of action. State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Railroad, 240 Mo. 48. (2) The information herein does not challenge the power of the Commission to make contract for use of a building as a central office. There is and can be no challenge of respondents' claim that it is the duty of respondents under the Missouri statutes to procure for the Commission a suitable central office. The whole claim is, the authority of the Commission is wrongly exercised in locating the office and therefore the Commission is merely charged with errors of law in the construction of a statute. Error of law in construction of a statute by an officer in the performance of duties of his office is no basis for judgment against respondents in a quo warranto proceeding. Quo warranto proceeding is not a writ of correction and review. Quo warranto is not a proper remedy. State ex inf. Walsh v. Thatcher, 102 S.W. (2d) 937; State ex rel. Adams v. Lee, 171 So. 333, 109 A.L.R. 319; Attorney General v. Barstow, 4 Wis. 773; State ex rel. v. Fleming, 158 Mo. 558, 59 S.W. 118; People ex rel. v. Whitcomb, 55 Ill. 72. (3) The original Unemployment Compensation Act of Missouri imposed the duty on respondents and gave respondents full power to lease a building anywhere in the State of Missouri to be used as a central office of respondents. Sec. 5 of the original Unemployment Compensation Act of 1937, Laws 1937, p. 580; Amended Unemployment Compensation Act, Sec. 5, Laws 1939, p. 895; Amended Unemployment Compensation Act of Missouri, Secs. 4 (a) 5, Laws 1939, pp. 895, 926; Laws 1939, p. 119; Laws 1937, p. 104.

HAYS, J.


Original action in quo warranto against the Unemployment Compensation Commission of Missouri, hereinafter referred to as the commission, and the individual members thereof. [1] To the information, filed by the Attorney General ex officio, the respondents have jointly demurred upon the ground, among others, that it does not state facts sufficient to entitle relator to the relief sought. For the purpose of ruling the demurrer, all of the facts well pleaded in the information must be taken as true. Hence we summarize the material allegations of that pleading.

[2] The commission is a subordinate branch of the executive department of the State government. As such it is charged with the administration of the Unemployment Compensation Act of 1937 and acts amendatory thereto. [Laws of Mo., 1937, p. 574 et seq.; Laws of Mo., 1939, p. 887 et seq.]

Immediately after the original act went into effect, the commission set up its central office at Jefferson City, Missouri. This was at first located in the State Capitol Building, but was later removed to a building which had formerly been used as a...

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