State v. Duncan

• Citation: 175 S.W. 940,265 Mo. 26
• Decision Date: 02 April 1915
• Docket Number: No. 18659.,18659.
• Parties: STATE ex inf. BARKER, Atty. Gen., v. DUNCAN et al.
• Court: United States State Supreme Court of Missouri

175 S.W. 940

265 Mo. 26

STATE ex inf. BARKER, Atty. Gen., v. DUNCAN et al.

No. 18659.

Supreme Court of Missouri.

April 2, 1915.

In Banc. Information in the nature of quo warranto by the State, on the relation of John T. Barker, Attorney General, against H. I. Duncan and others. Writ of ouster awarded.

This is an original proceeding by information in the nature of quo warranto, brought by the Attorney General for the purpose of determining the rights of the respondents to the several offices of collector of the revenue of Butler county and of collectors of the several townships in said county. The matter is before us on the pleadings; such issues having been made up thereby as concede the facts upon which the case turns. Briefly stated, these facts are as follows: At the general election held in Butler county in November, 1912, that county adopted the provisions of the statute relating to township organization. Following such adoption respondents herein, except H. I. Duncan and I. H. Barnhill, were elected collectors of the several townships in said county. The respondent Barnhill is the treasurer of Butler county, and, pursuant to the statutes governing township organization, is ex officio collector of the revenue thereof. Upon the presentation of a sufficient petition to the county court, the proposition to discontinue township organization was properly submitted to the voters of Butler county at the general election held therein in November, 1914. At this election some 1,300 votes were cast in favor of the proposition to discontinue and some 800 votes against the discontinuance thereof. While of those actually voting upon the proposition of discontinuing some two-thirds majority concurred in voting township organization out, yet the number of voters voting for a discontinuance was not a majority of the whole vote cast at said election; since the total number of votes cast at the general election in Butler county in 1914 amounted to some 4,200 or more. We do not give the exact figures, since they are in no wise material, there being no contention upon the facts; the issues being upon the law.

Upon the canvass of the votes cast for and against township organization, the county court found that such organization had been discontinued by the result of the election held, and said court thereupon proceeded to appoint respondent H. I. Duncan as collector of the revenue of Butler county to fill the vacancy which said court deemed to have ensued by reason of the result of the election aforesaid. There is no contention made that all of the respondents are not in every way qualified to hold the disputed offices. This fact is conceded by all adversary parties. A. controversy arose after the appointment by the county court of respondent Duncan as to the right of said court to appoint county officers, particularly to fill the office of collector of the revenue in a county which had voted out township organization. Thereupon one Carl C. Abington, likewise in every way qualified, as is conceded, to fill the office, applied to the Governor of Missouri for the appointment as collector, who thereupon appointed and commissioned him as such.

If, therefore, in order to discontinue township organization in a given county, it be sufficient for a majority only of those voting upon the proposition to vote in favor of discontinuing such organization, then a vacancy exists in the office of collector of the revenue of said county, and likewise in the several offices of collectors of the several townships of that county, and respondents, unlawfully assuming to fill these offices, should be ousted. If such vacancy exist, as between the county court and the Governor of Missouri, in whom is the power vested by the Constitution and the statutes to fill this office? These are the points which we are called upon to discuss upon the facts set out, and toward these points the subjoined discussion will be directed.

John T. Barker. Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen. (Ed. L. Abington and Sam M. Phillips, both of Poplar Bluff, of counsel), for informant. David W. Hill, of Poplar Bluff, for defendant Harry I. Duncan. L. M. Henson and Sheppard, Green & Sheppard, all of Poplar Bluff, for other defendants.

FARIS, J.

I. As a foreword of no vital importance to the case, but in order to settle a minor matter of practice which is causing useless confusion, we observe that this case comes to us styled "State of Missouri ex Informatione John T. Barker, Attorney General, Informant, versus H. I. Duncan et al. [naming all of them], Defendants." No objection on account of thus styling the cause has been lodged with us, but the lack of uniformity prevailing makes the moment fitting for a brief discussion touching its correctness. We can see no reason, and can find none sufficient among the authorities, for styling the complainant an "informant." Such use of the word to designate a plaintiff or complainant is wholly local and indigenous to this state. The dictionaries do not so recognize the word; likewise neither the encyclopedias nor the law dictionaries so use it. To be logical we ought to say, "State of Missouri upon the Information of the Attorney General, Informant, Plaintiff;" for, strictly speaking, the state of Missouri is not the informant, but the Attorney General is the one who informs us; the state of Missouri is the one aggrieved, and in whose action for redress the information is conveyed to us by the chief law officer. In criminal prosecutions either the prosecuting attorneys of the several counties or the Attorney General informs the criminal court, but the state of Missouri is nevertheless simply a plaintiff.

While it is but little more logical to style the complainant in a prosecution by information in the nature of quo warranto a "relator," yet the practice of so styling the one standing in the place of a plaintiff is well-nigh universal. 2 Spelling on Extraordinary Remedies, 1788, 1848; High, Extraordinary Remedies, 6292; Burrill's Law Dictionary; Black's Law Dictionary; Bouvier's Law Dictionary; 34 Cyc. 1038. "A relator," says Burrill, "is an informer; a person in whose behalf certain writs are issued, such as * * * informations in the nature of quo warranto." Black says that "a relator is the person upon whose complaint, or at whose instance, an information, or writ of quo warranto is filed, and who is quasi the plaintiff in the proceeding." Moreover, our statute plainly recognizes as proper the designation of the complainant as a relator. Sections 2631, 2632, R. S. 1909. Our Missouri cases, except a negligible few only, also denominate the one complaining a relator. State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Lupton, 64 Mo. 415, 27 Am. Rep. 253; State ex rel. v. Claggett, 73 Mo. 388; State ex tel. v. Francis, 88 Mo. 557; State ex rel. v. Meek, 129 Mo. 431, 31 S. W. 913; State ex rel. v. Lawrence, 38 Mo. 535; State ex inf. v. Lindell Ry. Co., 151 Mo. 162, 52 S. W. 243; State ex rel. v. Pearcy, 44 Mo. 159; State ex inf. v. Kansas City, 233 Mo.loc. cit. 171., 134 S. W. 1007; State ex rel. v. McSpaden, 137 Mo. 628, 39 S. W. 81; State ex inf. v. Corcoran, 206 Mo. loc. cit. 10, 103 S. W. 1044, 12 Ann. Cas. 565; State ex inf. v. Amick, 247 Mo. loc. cit. 280, 152 S. W. 591; State ex rel. v. Wright, 251 Mo. 325, 158 S. W. 823. After a somewhat exhaustive search we have been able to find only some eight or ten cases wherein the Attorney General, filing of his own initiative informations in the nature of quo warranto, has styled the complainant an "informant," and but two only in which this court in its opinion has so designated the complainant. There may be otters of both classes, but we have not found them. Further illustrating this useless confusion, we note that in the style of the case of State ex rel. Atty. Gen. v. Bland, 144 Mc. 534, 46 S. W. 440, 41 L. R. A. 297, the complainant is called an "applicant"; in the case of State ex rel. Atty. Gen. v. Steers, 44 Mo. 223, complainant is called a "petitioner"; in the two cases of State ex rel. Atty. Gen. v. Fleming, 158 Mo. 558, 59 S. W. 118, and State ex inf. Atty. Gen. v. Standard Oil Co., 218 Mo. 1, 110 S. W. 902, the complainant is referred to as the "informant"; while, as stated, in the cases first supra in this paragraph and a full score or more of others not cited, the complainant is called the "relator."

If it be said that the word "informant" is used to distinguish the cases brought by a prosecuting officer upon his sole initiative from those cases which are brought by a private person through the official aid of such prosecuting officer, then the distinction is wholly useless, since it is fully and sufficiently connoted by the use of the words "ex informatione," even granting for argument's sake such use is any more necessary in this sort of case than it is in a criminal prosecution, which in a precisely similar way is often brought by a prosecuting officer upon his sole initiative. Practically all other states of the Union use the designation relator, and the use of the word "informant" is unknown in these other jurisdiction". State ex rel. v. Price, 50 Ala. 568; People ex rel. v Woodberry, 14 Cal. 43; State ex rel. v. North, 42 Conn. 79; People ex rel. v. Riordon, 73 Mich. 508, 41 N. W. 482; State ex rel. v. Smith, 55 Tex. 447; State ex rel. Atty. Gen. v. McCullough, 20 Nev. 154, 18 Pac. 756; People ex rel. v. Wilson, 72 N. C. 169; Com. v. Heilman, 241 Pa. St. 374, 88 Atl. 666. The case of State ex rel. v. McMillan, 108 Mo. 153, 18 S. W. 784, does not, as we read it, require any such practice; the point held in judgment, there being as to the right of the Attorney General to bring such a proceeding at all, absent a private interested relator, and not the form of his bringing action. State ex rel. v. Rose, 84 Mo. 198; State ex rel. v. Loan Association, 142 Mo. 325, 41 S. W. 916.

So also the practice is to style him who is called to answer the...