State ex rel. Schneider's Credit Jewelers v. Brackman

• Decision Date: 15 September 1953
• Docket Number: No. 28671,28671
• Citation: 260 S.W.2d 800
• Parties: STATE ex rel. SCHNEIDER'S CREDIT JEWELERS, Inc. v. BRACKMAN.
• Court: Missouri Court of Appeals

Page 800

260 S.W.2d 800

STATE ex rel. SCHNEIDER'S CREDIT JEWELERS, Inc. v. BRACKMAN.

No. 28671.

St. Louis Court of Appeals, Missouri.

Sept. 15, 1953.

Motion for Rehearing or to Transfer to Supreme Court

Denied. Oct. 16, 1953.

Meyer Blocher, St. Louis, Kerth & Schreiber, Clayton, Joseph Nessenfeld, St. Louis, of counsel, for relator.

Albert E. Schoenbeck, St. Louis, for respondent.

RUDDY, Judge.

This is an original action in prohibition, filed in this court, wherein relator seeks to prohibit the respondent, Judge of the Circuit Court of St. Louis County, from further exercising jurisdiction in a quo warranto proceeding brought against relator in this prohibition action.

An information in the nature of quo warranto was filed in the St. Louis County Circuit Court by Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri, at the relation of 'George A. Winterer, Joseph L. Moseley, Dale P. Summers, Thomas J. McWay and Angelo P. George as members of and constituting and composing the Missouri State Board of Optometry,' and 'John N. Betz, Bernard Jander, Edward Schwarz and Lawrence P. Feigenbaum, as individuals and as representatives of other optometrists similarly situated,' against Schneider's Credit Jewelers, Inc., a corporation, relator herein. The information in the quo warranto proceeding alleged it was 'filed, exhibited and prosecuted pursuant to Sections 531.010 et seq., Revised Statutes of Missouri, 1949 [V.A.M.S.], and other statutory law of the State of Missouri.' It further alleged that the members of the Missouri State Board of Optometry were appointed and empowered pursuant to Chapter 336, Revised Statutes of Missouri, 1949, and that said Board was a legal entity in the nature of a quasi-public corporation; that the individual relators acting for themselves and as representatives of other optometrists similarly situated were all duly registered and licensed to practice optometry in the State of Missouri, and that all were engaged in the practice of optometry in St. Louis County, Missouri. It is further alleged in said information that they are acting as representatives of all other optometrists and persons similarly situated because it was impracticable for all of them to join as relators therein and that there are common questions of law and fact affecting the several rights of the numerous persons represented and that common relief is sought.

The information further alleged that the Schneider's Credit Jewelers, Inc., is a corporation organized under the laws of the State of Missouri and is doing business in St. Louis County and in the City of St. Louis; that said corporation 'has been and is guilty of usurping and exercising privileges, franchises, rights, powers and authorities not granted by the State of Missouri to it or permitted by the law of said State,' in that said Schneider's Credit Jewelers, Inc., 'has been since January 1, 1951, and now is wrongfully and illegally engaging in the practice of optometry by and through agents and employees who are not registered optometrists and by and through agents and employees who are registered optometrists.' The information specifies the alleged illegal acts, which specifications we need not recite.

It is further alleged in said information that the members of the State Board of Optometry have 'the official duty and obligation of preventing, stopping and prohibiting the unauthorized practice of optometry in Missouri by any person, firm or corporation'; that by reason of the duty imposed on them they have the requisite special interest necessary to act as relators in the quo warranto proceeding. It is further alleged that the individual optometrists acting for themselves individually and as representatives of all other optometrists and persons similarly situated are engaged in the practice of optometry within the immediate neighborhood and vicinity of one or more of the locations at which the Schneider's Credit Jewelers, Inc., is allegedly engaging in the practice of optometry, and that such conduct and practice by said corporation is 'adversely affecting, impairing, harming, damaging and destroying the professional practices, reputations and livelihoods of said' individuals and of other optometrists similarly situated and that by reason thereof they have the requisite and special interest necessary to prohibit the unauthorized practice of optometry by said corporation in St. Louis County and in the City of St. Louis, Missouri.

The prayer of the information asks for a forfeiture of the corporate charter of Schneider's Credit Jewelers, Inc.; for an order forbidding it to engage in the practice of optometry in Missouri and particularly in St. Louis County and the City of St. Louis, Missouri, and for an order forbidding said corporation from engaging in misleading, false and unlawful advertisements of optometric services in said city, county, and state, and for such other and further orders as to the court may seem meet and proper.

Schneider's Credit Jewelers, Inc., respondent in the quo warranto proceeding and relator herein, filed its motion to dismiss the information, setting up as grounds therefor the following: (1) Improper venue, in that the corporation has its principal office and its registered agent in the City of St. Louis. (2) Want of jurisdiction to render a judgment of ouster at the suit of the prosecuting attorney of St. Louis County, because the corporation is authorized to transact business throughout the State of Missouri and only the attorney general has the legal capacity to bring an action in quo warranto for ouster of a corporate franchise. (3) Lack of special interest on the part of the relators in the quo warranto proceeding. (4) The Missouri State Board of Optometry has no authority to act as relator in a quo warranto proceeding. This motion to dimsiss the information was overruled by Honorable Amandus Brackman, Judge of the Circuit Court of St. Louis County, respondent herein.

In the petition for prohibition filed in this court relator alleges that the respondent intends to exercise further jurisdiction in the case, unless he is restrained from doing so in this proceeding. It is the contention of relator herein that the respondent lacks jurisdiction to require relator herein to plead to said information in quo warranto and to hold and conduct the trial and render a judgment on such trial and gives numerous grounds in support thereof, which we will take up and answer in their order.

In the answer and return of respondent herein it is conceded that the information in the quo warranto proceeding and the motion to dismiss contain the allegations and grounds set out hereinbefore.

Relator herein and respondent have stipulated that Schneider's Credit Jewelers, Inc., is a Missouri corporation organized February 14, 1930, under the provisions of the Missouri law governing the organization of business and manufacturing companies and has its principal office in the City of St. Louis, which is also the location of its registered office; that its charter permitted it to do business throughout the State of Missouri and at the time of the filing of the quo warranto action was actually doing business in the City of St. Louis and the County of St. Louis with places of business in both said city and county.

Relator herein has filed its motion for judgment on the pleadings.

The first point briefed and relied on by relator is that the subject of the quo warranto proceeding is the corporate charter and franchise of Schneider's Credit Jewelers, Inc.; that the charter is a contract between the State of Missouri and the corporation, and is state-wide in scope and situs and that only the State of Missouri, through the Attorney-General, may bring an action that has for its purpose the forfeiture of the corporate charter. Relator contends that the object of the quo warranto proceeding is to forfeit the corporate charter of Schneider's Credit Jewelers, Inc., and to oust it from its corporate franchise, and by reason thereof the subject of the action is in fact the corporate charter and franchise. In support of this contention relator cites the following cases: State on inf. of McKittrick v. American Insurance Co., 346 Mo. 269, 140 S.W.2d 36; State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185, 98 S.W. 539; and State ex inf. Gentry v. American Can Co., 319 Mo. 456, 4 S.W.2d 448.

In the case of State on inf. of McKittrick v. American Insurance Co., 346 Mo. 269, loc. cit. 277, 140 S.W.2d 36, loc. cit. 40, the Supreme Court pointed out that, 'in quo warranto against a corporation, 'the state proceeds for a violation of the company's private contract'; namely, 'the corporation's implied contract not to violate the franchise granted by the state', which means that it will comply with the general laws of the State as well as with express conditions of the grant of the right to carry on its business as a corporation.' Relator concludes from this statement that the Supreme Court held the subject of the proceeding was the corporate charter and franchise. The court used this language in discussing the character of judgment that could be entered in a quo warranto proceeding. The court in its quest for an answer to the question whether it had jurisdiction of the subject matter of the information that formed the basis of the quo warranto proceeding before it, gave the following as the subject of inquiry in the proceeding, when it said, 140 S.W.2d loc. cit. 37: 'This is an original proceeding in the nature of quo warranto on information of the Attorney General. The question now to be decided is whether this court has any jurisdiction of the subject matter of this information. * * * As to the first proposition, we think it is clear that, if we disregard the allegations concerning the merits of the 16 2/3% increase and the ownership of the impounded funds, ...