State ex rel. Folk v. Talty

• Decision Date: 04 February 1902
• Parties: THE STATE ex inf. FOLK v. TALTY et al
• Court: Missouri Supreme Court

66 S.W. 361

166 Mo. 529

THE STATE ex inf. FOLK v. TALTY et al

Supreme Court of Missouri, Second Division

February 4, 1902

Rule made absolute.

Edward C. Crow, Attorney-General, for informant.

(1) In 46 Mo. 529, the Supreme Court decided that an information in the nature of a quo warranto under the statute must show affirmatively that the relator has a title to the office if the defendant's title be defective, and therefore must show that the relator possessed all the requisite qualifications for the office. The petitioner, Buechner, did not state in the petition for a mandamus that he had taken the oath as prescribed by section 6 of article 3 of the charter of the city of St. Louis, Missouri, before the register and filed the same in his office, stating that he possessed all the qualifications required in this and the preceding section, and was not subject to any of the disqualifications therein named. It has been held in Missouri that a mere allegation in a quo warranto proceeding that a certain person was elected amounts to nothing, and a denial of that allegation makes no issue. 56 Mo. 112. Facts, and not conclusions of law, must be distinctly stated. 79 Mo. 272. The mere fact that the petitioner, Buechner, alleges in his petition that he received the highest number of votes and that he received a certificate of election gives him no right and title to the office unless he qualifies by taking the oath of office prescribed by section 6 of article 3 of the charter of the city of St. Louis. The failure to take the prescribed oath is legally deemed a refusal of the office. State ex rel. v. McCann, 88 Mo. 381; 91 Mo. 451; State ex rel. v. Phillips, 30 Fla. 589. The rule is that an alternative writ of mandamus must aver all the facts necessary to give the petitioner the right which he claims to justify the order sought. 36 Ala. 252; 22 Ohio St. 371; Merrill on Mandamus, secs. 255, 256; 93 Ill. 180. (2) The determination of the question of jurisdiction depends upon whether the circuit court was entirely wanting in jurisdiction to grant said writ of mandamus on the showing made in the petition therefor, or whether, granting it had jurisdiction in that class of cases, it has not exceeded its jurisdiction. State ex rel. v. Wood, 155 Mo. 445. Whether the circuit court was without jurisdiction altogether, or, having jurisdiction of the class of cases in which the mandamus was sought, it exceeded its jurisdiction is only ascertainable in this case by the averments in the bill filed in that court, and the order made thereon. A petition for a mandamus in this case must aver traversable facts sufficient to constitute a good information in the nature of a quo warranto proceeding under the statute. The statement of such essential facts is jurisdiction. State ex rel. v. Wood, 155 Mo. 447; State ex rel. v Boal, 46 Mo. 529; 30 Fla. 589; Merrill on Mandamus, sec 56; Supervisor of Culpepper v. Gorrell, 20 Gratt. (Va.) 484; High's Ext. Leg. Rem., sec. 709; Spelling on Ext. Rem. (2 Ed.), sec. 1625, p. 424; People v Railroad, 42 F. 638; 156 Mass. 403; 64 Hun 408; 149 U.S. 192. (3) The Circuit Attorney has a discretion to exercise as to filing quo warranto proceedings under the statute. 2 Johns. 184; 22 Barb. 116; R. S. New York, 1830, p. 581; R. S. 1835, p. 523; R. S. 1845, 1855, 1865; Laws 1872, pp. 66 and 67. (4) No private individual at common law had a right to use the name of the Attorney-General or the circuit attorney for the purpose of suing out a writ of quo warranto. 163 Mass. 448; 22 Barb. 116; Rex v. Sargeant, 5 T. R. P. 467; State ex rel. v. Stewart, 32 Mo. 382. When a person intrudes into an office it is the right of the State as sovereign to remove him. Individuals have no such rights. This is still the law, although officers are elected and not appointed. Hence, the State has a right to decide whether it will or will not remove the intruder. The right to make that decision must be vested in some one. It has been vested in the Attorney-General. The discretion of the Attorney-General will not be reviewed by the court in an application to compel the Attorney-General to institute quo warranto proceedings. 8 Hun (N.Y.), 335; 67 N.Y. 336; Endlich on Int. of Statutes, secs. 378, 380, 381; Law Rep. Chan. Div. 30; 4 D. Ad. 78; 7 Barb. 191; Taylor v. Delancy, 2 Caines' Cases in Error, 151. Where the law antecedently to the revision was settled either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law unless such phraseology evidently purports an intention in the Legislature to work a change. Taylor v. Delancy, 2 Caines' Cases in Error 150; Douglas v. Douglas,, 5 Hun (N.Y.) 145; Burnham v. Stevens, 33 N.H. 256; Conyer v. Barker, Arbitrator, 11 Ohio St. 13; 1 Metc. (Ky.) 624; 6 Tex. 35. The Supreme Court of this State has decided in construing the quo warranto act of our State that it is of a like nature with the same proceeding at common law, and that our quo warranto proceedings are controlled by the common law. 129 Mo. 435; State ex rel. v. Westport, 116 Mo. 582; State ex rel. v. McMillan, 108 Mo. 153. That the primary and fundamental question in a proceeding by quo warranto is whether the defendant is legally entitled to hold the office and not as to the rights of any other person who may claim it. State ex rel. v. Rose, 84 Mo. 198; State ex rel. v. Townley, 56 Mo. 113. From which it appears that the proceeding under our statute is of a like nature with the same proceeding at common law. It is not primarily a proceeding between individuals to try the right as between them to the possession of an office, although such right may be incidentally decided therein, but an inquiry by the State or one of her citizens by what right he holds or executes an office, in which his title to the office which he claims is tried. At common law, it was the right of the Attorney-General of England to exercise his discretion with reference to filing an information in the nature of a quo warranto proceeding. State v. Ins. Co., 8 Mo. 240; High on Extraordinary Legal Remedies, sec. 45; 17 Enc. of Pleading and Practice, p. 428; 19 Enc. of Law (2 Ed.), p. 781; People v. Fairchild, 67 N.Y. 234; Everding v. McGinn, 23 Ore. 15; People v. Attorney-General, 22 Barb. (N.Y.) 114; 14 Fla. 256. (5) In construing this statute the court must presume that the Legislature was informed of the previous legislation and knew that this had always been considered a public prosecution. This is a statutory rule of construction. Sutherland on Statutory Construction, sec. 33; 54 Pa. St. 182; 70 Pa. St. 344; 14 Barb. 531; 20 Bevan, 278; 18 A. 297; Sutherland on Statutory Construction, secs. 333, 139, 140 and 400. This court must also indulge the presumption in construing the law of 1872 as amending the former statute, that the Legislature did not intend to amend the statute in any manner other than that expressly set out. 13 N.J.Eq. 420; Hawson v. Young, 9 Ga. 359; United States v. Green, 4 Mason, 427; 4 Mass. 522; Cole v. White County, 32 Ark. 425; Jones v. Tathan, 20 Pa. St. 398; Green v. United States, 9 Wall. 655. The law is that no public rights can be taken away by mere inference or legal construction. 13 N. J. Ch. 425. Statutes which strip a government of any portion of its prerogatives should receive a strict construction. 22 Pa. St. 496; 98 Pa. St. 54; 66 Pa. St. 84; 2 W.Va. 441; 22 Barb. 117. Mandamus to compel the Attorney-General, or district or prosecuting attorney to institute and prosecute legal proceedings has generally been refused either upon the ground that the matter was discretionary with the officer, or because of the impossibility of compelling him to prosecute it properly to a final determination. 19 Enc. of Law (2 Ed.), p. 781; Boyne v. Ryan, 100 Cal. 265; Yates v. Attorney-General, 41 Mich. 728; People v. Attorney-General, 22 Barb. (N.Y.) 114; People v. Fairchild, 67 N.Y. 334; Everding v. McGinn, 23 Ore. 15; Coon v. Attorney-General, 42 Mich. 65. This doctrine has been applied to proceedings to try the title to an office. 22 Barb. 114; 23 Ore. 15. This doctrine has been applied to suits to recover public money unlawfully paid out. Boyne v. Ryan, supra. And the same principle to suits for the forfeiture of the charter of a corporation. State v. Attorney-General, 30 La. Ann. 954. The right to institute a quo warranto proceeding is a matter in the discretion of the Attorney-General. 14 Fla. 256; 2 Spelling on Extraordinary Remedies (2 Ed.), p. 1196, sec. 1384. While the general proposition is true that mandamus can not be employed to control the exercise of discretion, yet it is often used to correct abuse of discretion when it has been made to clearly appear that the officer refusing to do the act is either not exercising his discretion at all, or has willfully chosen to act in manifest disregard of duty and the legal rights of individuals. In other words, an officer can not, in these matters, act merely in a capricious and arbitrary manner. 2 Spelling on Extraordinary Remedies (2 Ed.), p. 1196, sec. 1384; 79 Mich. 384; 81 Cal. 542; 41 Mo. 226.

C. W. Rutledge for respondents.

(1) The House of Delegates, in installing Mr. Buechner in the office at its organization, exhausted whatever authority it may have had under article 3, section 8, of the charter, and could not thereafter open the matter up for further consideration. Kendall v. Cambden, 47 N. J. L. 64; Hadley v Mayor, 33 N.Y. 603; Morgan v. Quackenbush, 22 Barb. 72; State ex rel. v. John, 81 Mo. 17; State ex rel. v. Giovanoni, 59 Mo.App. 41 (overruled by the Vogel case, 83 Mo.App. 657); Aldermen v. Darrow, 13 Colo. 460. (2) Relator's construction of article 3, section 8, of the charter, which says "each house shall be sole...