State ex rel. Downs v. Kimberlin

• Decision Date: 13 July 1953
• Docket Number: No. 43465,43465
• Citation: 260 S.W.2d 552,364 Mo. 215
• Parties: STATE ex rel. DOWNS, Pros. Atty., v. KIMBERLIN et al.
• Court: Missouri Supreme Court

Page 552

260 S.W.2d 552

364 Mo. 215

STATE ex rel. DOWNS, Pros. Atty., v. KIMBERLIN et al.

No. 43465.

Supreme Court of Missouri, en Banc.

July 13, 1953.

Rehearing Denied Sept. 14, 1953.

John E. Downs, Pros. Atty., St. Joseph, Frank D. Connett, Jr., St. Joseph, for relator.

Louis Kranitz, Theodore M. Kranitz, St. Joseph, for respondents.

LEEDY, Judge.

Division No. 1 of the Buchanan Circuit Court (Hon. Sam Wilcox, Judge) having sustained defendant's motion to quash the indictment in the case of State of Missouri, plaintiff v. A. M. Olmsted, defendant (No. 68), the prosecuting attorney, claiming the right under a statute, Sec. 545.300--this and all other statutory references are to RSMo 1949 and V.A.M.S., unless otherwise expressly noted, sought to substitute an information for the indictment so quashed, but this the judge refused to permit; and so, to compel such substitution, the prosecutor, in his official capacity, brought this original proceeding in mandamus as relator, and joined as parties respondent the (then) judge and the clerk of the court. The term of office of Judge Wilcox has since expired, and, under Sec. 507.100, subd. 5, Judge William H. Kimberlin, his successor, has been substituted in his stead.

We will not lengthen this opinion by undertaking a resume of the anomalous pleadings from which the issues in this case have been gleaned. It is sufficient to say that the facts are not in dispute and that the issues are, in essence, these: (1) Relator's right or authority to sue; and (2) whether his petition (attached to and by reference made part of the alternative writ under prevailing practice) states a claim upon which relief can be granted. Contentions with respect to the sufficiency of the petition are developed by respondents under a variety of heads, substantially all of which go to matters other than the merits of the ultimate question for determination, i. e., the prosecutor's right and authority in the premises.

Turning to the first issue, it is respondents' contention that under Sec. 27.060 of the statutes, relator is without authority to sue or maintain this action; and that, if such an action lies at all (which they deny), the Attorney-General is the proper party to bring it. The statute thus invoked provides, in pertinent part, that the 'attorney general shall institute, in the name and on the behalf of the state, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the state,' etc. It is argued that the only interests affected by any injury flowing from the court's refusal to permit substitution would be those of the state, and, if they be of a protectable nature at all, then under the statute, it is solely the province of the Attorney-General to institute the proceeding. But another section, Sec. 56.060, makes it the duty of the prosecuting attorneys of the several counties to 'commence and prosecute all civil and criminal actions in their respective counties in which the county or state may be concerned,' etc.

Legislation concerning the duties of attorneys authorized to institute proceedings in behalf of the state, and out of which the sections just referred to have emerged, is reviewed at great length in State ex rel. Thrash v. Lamb, 237 Mo. 437, 448-453, 141 S.W. 665, 668-669. See, also, State ex rel. Missouri Pac. R. Co. v. Williams, 221 Mo. 227, 261, 120 S.W. 740, 749. The rule as deduced from these cases was thus epitomized in State ex rel. Westhues v. Sullivan, 283 Mo. 546, 569, 224 S.W. 327, 331: That the prosecuting attorney of a county 'cannot proceed in the name of the state, save and except the matters involved are matters arising within and pertaining to the jurisdiction of such prosecuting officer. In other words, they must be matters which concern the state in the limited territory over which such officer has control or in which he has power to act. His limit is the county for which he was elected. Westhues, as prosecuting attorney of Cole county, can use the name of the state in such matters in which the state is interested within the confines of the said county of Cole. The real question is whether or not the things pleaded are matters localized to Cole county or whether the state's interest in the proceeding is one of broad expanse, and covering a matter having a state situs rather than a county situs. If the latter, the state must proceed through the Attorney General; if the former, it may proceed through the local prosecuting officer. Upon this point nothing can be added to the learning of the two recent [Lamb and Williams] cases cited supra. In addition, the statutes fix their respective lines of action. That of the Attorney General is state wide, whilst that of the prosecuting attorney is local. Whether the one or the other can act must be determined from the nature of the subject-matter of the action. This is made clear in both of the cases cited supra.'

Exercise of the function of substitution in Olmsted's case was a matter clearly localized to Buchanan County, affected a single prosecution instituted within and confined to that venue, and had no state situs, so that under the doctrine of the cases just mentioned the present action must be held to have been properly brought ex officio by the prosecuting attorney.

In the same connection, it is also urged that the 'petition is not verified according to law, in that said verification is on information and belief, which is insufficient in the premises.' Conceding there is no Missouri authority for this position, respondents rely on and cite the following statement appearing as the last sentence in 35 Am.Jur., Mandamus, Sec. 346: 'An allegation on information and belief that the relator has no other adequate remedy may not suffice.' This derives from Clement v. Graham, 78 Vt. 200, 63 A. 146, Ann.Cas.1913E 1208, an examination of which will disclose that the question of verification was not there involved.

The general statute with respect to verification of pleadings, Sec. 509.030, which came into our statutory law as Sec. 34 of the new Civil Code of Missouri, Laws 1943, p. 353, provides: '* * * Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.' Our attention has not been directed to any rule or statute such as is contemplated by this section which is applicable in mandamus actions, nor have we been able to find one. We hold this section controls, notwithstanding the fact that mandamus proceedings are in general governed by special procedural statutes, Chapter 529, Secs. 529.010-529.100, which were not supplanted by the new Civil Code, there being no provision in such special statutes requiring verification of the petition. See, also, S.Ct. Rule 3.02(c).

The attack upon the sufficiency of the petition for want of material and indispensable averments includes that of relator having 'failed to plead a demand upon either of respondents to permit, in the one case, and accept, in the other, the filing of the substitute information.' Relator's answer admits that no demand was ever made upon the clerk, and avers that he 'was made a party because, as circuit clerk, he was under the supervision and control of the respondent judge.' The joinder of the clerk would seem to have been unnecessary, but, for reasons presently to be noticed, it does not follow that he is entitled to quashal of the alternative writ at this stage of the proceedings. The petition alleges that relator 'offered and attempted to file a substitute information in lieu of the aforesaid quashed information,' and that the respondent judge 'refused to permit the relator to file the substitute information.' It is not pointed out in what particulars these allegations are insufficient as an averment of a demand as against the judge. In one of the joint pleadings filed by respondents, it was averred that it appears from an exhibit accompanying the petition (and hence 'a part thereof for all purposes' under the statute, Sec. 509.130) 'that the filing of said substitute information was refused after judicial hearing and in the judicial discretion of respondent Wilcox; that said judicial determination was at the request and upon the motion of relator.' Throughout the whole proceeding the clerk has adopted the position of the respondent judge, thus tacitly admitting that if manually tendered to him he would have refused to file the substitute information. In this situation, and in view of the allegations to which reference has been made, respondents will not be heard to complain of any supposed want of an averment of a demand upon them, or either of them.

On the merits, respondents' principal contentions are: (1) That the judge held the indictment to be a nullity, in consequence of which substitution of an information therefor does not lie; and (2) that 'permitting or refusal of permission to file a substitute information lies in the sound discretion of the trial judge,' to interfere with, or control which, mandamus does not lie.

The statute...