State ex rel. McIlhany v. Stewart

• Decision Date: 31 March 1862
• Citation: 32 Mo. 379
• Court: Missouri Supreme Court
• Parties: THE STATE OF MISSOURI, ex rel. WILLIAM G. MCILHANY, &c., v. ELIAS C. STEWART et al.^a1

32 Mo. 379

THE STATE OF MISSOURI, ex rel. WILLIAM G. MCILHANY, &c.,

v.ELIAS C. STEWART et al.^a1

Supreme Court of Missouri.

March Term, 1862.

Application for leave to file an information in the nature of a quo warranto.

Attorney General, with Wood & Hunton, for relators.

E. A. Lewis, and Lackland, Cline & Jamison, for respondent.

NAPTON, Judge, delivered the opinion of the court.

This is an application for leave to file an information in the nature of a quo warranto.

The information proposed to be filed and acted on states, that at an election of directors of the St. Charles branch of the Southern Bank of St. Louis, on the 11th March, 1861, the relators were duly elected and afterwards took the oaths and qualified, according to law, for the performance of the duties of such directors; that the defendants, who were also voted for as directors, but who did not receive a majority of the votes cast, have usurped the office of directors, and are now illegally exercising the duties thereof. A judgment of ouster is prayed.

Without expressing any opinion upon the merits of the application, a summons was ordered to notify the defendants, with the understanding that the court, upon the coming in of the defendants, would pass upon the questions involved in the motion.

Upon the return of the summons, a motion was made to quash the return, and upon this motion the subject has been discussed generally on both sides. The question is, has this court jurisdiction? and if it has, ought leave to be granted?

The jurisdiction of this court in writs of quo warranto, and information in the nature of quo warranto, is almost entirely a new question in this court. It is true that as early as 1834 this court exercised jurisdiction in a case where an information was filed against a person who was alleged to have usurped illegally the office of mayor of St. Louis (see State v. Merry, 3 Mo. 278), and at a subsequent period, in the case of the State v. McBride (4 Mo. 302), the right of a circuit judge to his seat on the bench was heard and determined in this court, on a similar information. But in the first case there was no examination of the question, so far as the report shows; and the original papers, now on file, do not show what the character of the information was--whether it was filed by the attorney for the State on his own motion, or was an information in his name at the relation of another. In the case of Judge McBride, there seems to have been no question made of the jurisdiction of the court. So, at the last term of this court, we decided a case which was submitted upon an agreed state of facts. And in the case of the State v. Perpetual Insurance Company (8 Mo. 330), the subject was alluded to, but nothing determined in relation to the questions now involved; nor was it necessary that they should be settled.

A writ of quo warranto was an original writ out of chancery, directing the sheriff to summon the defendant to appear before the king, or his justices itinerant, when they should come into the county, and show by what warrant he claimed the franchise mentioned in the writ. This writ became obsolete in England with the cessation of the circuits of justices in eyre, and informations were substituted in its stead. These informations were criminal in their form and origin, but have long since been substantially and essentially civil proceedings.

There are in England three distinct classes of informations in the nature of a quo warranto: First, those filed by the attorney general, without leave of the court and without any relators; second, those filed with the leave of the court, by the clerk of the crown, by virtue of his common law power; and third, informations by the clerk of the crown, on the relation of some one, and by leave of the court, under the statute of 9 Anne, c. 20.

The information filed in this case falls within the last mentioned class. The name of the attorney general is substituted for that of the clerk of the crown office in England; but, in all other respects, the proceeding is one identical in form and purpose with that which is regulated, if not originated, by the statute of Anne.

The statute of Anne has never been in force here, nor has the statute of 4 and 5 W. & M. c. 18, which first imposed some restrictions upon the power of the clerk of the crown in filing these informations on the suggestion of private persons, by prohibiting them from being filed without an express order from the Court of King's Bench.

The statute of Anne has, however, been in substance enacted in this State as early as 1825, but the jurisdiction conferred and regulated by it is exclusively confined to the Circuit Courts. The statute seems to be designed, like the New York statute, of which it is essentially a copy, to cover the whole ground of informations in the nature of a quo warranto, where leave of the court was requisite. It is more comprehensive than the statute of Anne, which was confined to officers of municipal corporations, and embraces all officers and franchises.

The constitution has conferred upon this court the power to issue writs of quo warranto, and to hear and determine the same. The legislature cannot deprive this court of any jurisdiction conferred on it by the constitution. This court has already determined that the power conferred by the constitution extended as well to informations in the nature of a quo warranto as to the original writ, which was known as such in the common law. But it has never been decided, nor do the reports show, that there has ever been any occasion to decide, whether this court would exercise...