State v. Taylor

• Citation: 106 S.W. 1023,208 Mo. 442
• Parties: STATE ex rel. BLACK v. TAYLOR et al.
• Decision Date: 24 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 1023

208 Mo. 442

STATE ex rel. BLACK v. TAYLOR et al.

Supreme Court of Missouri. Division No. 1.

December 24, 1907.

1. QUO WARRANTO — PARTIES — PRIVATE PERSONS.

In the absence of a statute conferring authority, a private person cannot proceed by quo warranto in his own name without the interposition of a proper state officer.

2. SAME — PUBLIC OFFICERS.

Under Rev. St. 1899, § 4457 [Ann. St. 1906, p. 2442], providing that, in case any person shall usurp any office, the Attorney General or a prosecuting attorney shall exhibit an information in the nature of quo warranto, etc., the Attorney General or a prosecuting attorney is charged with the duty of exhibiting an information, and where an information has been filed by either officer he cannot discontinue the proceeding without the consent of the relator.

3. SAME — DISCRETION OF PUBLIC OFFICERS.

The power to determine whether or not a quo warranto proceeding shall be instituted is vested in the Attorney General or prosecuting attorneys by Rev. St. 1899, § 4457 [Ann. St. 1906, p. 2442], providing that, in case any person usurps any office, the Attorney General or prosecuting attorneys "shall" exhibit an information in the nature of a quo warranto, and the officers have discretion whether to proceed or not: the word "shall" not being mandatory.

4. SAME — SIGNATURE.

The exercise by a prosecuting attorney of his official discretion in exhibiting an information in the nature of quo warranto need not be evidenced by an information based on his oath of office or authenticated by a jurat, but is evidenced by his signature to an information in due form and its exhibition in court, and the prosecuting attorney cannot permit others to use his name.

5. SAME.

The common-law power of a prosecuting attorney to file an information praying for a prerogative writ is inherent in the office, and in its exercise he performs functions which cannot be taken away except by clear terms of the statute, and he cannot give away such power through caprice or inattention.

6. SAME — CONTROL OF PROCEEDING.

Where a prosecuting attorney permitted the use of his name in an information in the nature of quo warranto without his signature thereto, he could not at the trial control the litigation and demand the dismissal of the proceeding, but the court will control the process.

7. SAME — NATURE OF PROCEEDING.

Quo warranto is civil in its nature, though using forms and punishments peculiar to criminal law.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Quo warranto by the state, at the information of James C. Dorian, prosecuting attorney of Knox county, at the relation of John H. Black, against W. S. Taylor and others, directors of a school district. From a judgment for defendants, the relator appeals. Affirmed.

O. D. Jones, George A. Mahan and W. N. Doyle, for appellant. L. F. Cottey, for respondents.

LAMM, J.

Relator Black by counsel exhibited to the circuit court of Knox county, on the 5th day of June, 1905, an information in the nature of quo warranto against Taylor and five others, directors of the school district of the town of Hurdland in said county. Thereat leave was granted, and, summons issuing and service being had, respondents answered, and in July of that year (at a trial to the court without a jury) judgment went for defendants. From that judgment, relator appeals.

The information follows: "The State of Missouri, by James C. Dorian, the prosecuting attorney of Knox county, at the relation of John H. Black, gives the court to understand and be informed: That W. S. Taylor, A. S. Davis, G. H. Cockrum, James L. Gardiner, D. S. Durall, and S. C. Surrey, defendants herein, all of the county and state aforesaid, without any legal authority and right whatsoever have, they and their predecessors for the space of nearly three years, and since the 8th day of April, A. D. 1902, usurped, held, and exercised the office of school directors or members of the board of education of the school district of the town of Hurdland, Knox county, Missouri, when in fact and in law there were no such offices in said county of Knox, and still do so usurp, hold, use, and claim to exercise the same within this state, and since that day aforesaid have unlawfully claimed and enjoyed and used the power in law belonging and appertaining to such offices. That as such they are calling elections of said school district of the town of Hurdland submitting a proposition to vote, an issue of $5,700 in bonds of said district, and now threaten to issue and sell the same, to build and furnish a schoolhouse therein, and have caused such an election to be held, and as such school directors of said school district of the town of Hurdland are now threatening to issue bonds of said district illegally and sell the same, without any authority in law, to the extent of $5,700. That the relator herein owns real estate and personal property in said district subject to taxation, and is interested in the legal and orderly conduct of the affairs of said school district, and sues herein in his own behalf and in behalf of about 40 other resident taxpaying citizens and legal voters of said district. He asks that the defendants be notified and required to answer herein and to show by what authority in law they claim and pretend to hold and exercise the powers and duties of the offices aforesaid and use the functions and powers as aforesaid, and that, failing that, they be ousted from such claimed offices, and that it be ascertained, adjudged, and declared that no such offices exist, and for all legal and proper orders and judgments and costs of suit. State of Missouri, at the Information of James C. Dorian, Prosecuting Attorney of Knox County, at the Relation of John H. Black. By W. N. Doyle and O. D. Jones, Attorneys."

An aggregation of errors is assigned by relator's counsel and discussed in their brief; but defendants make a contention lying at the gateway of the case, and, therefore, challenging attention at the outstart; for, if they are right in that contention, the gateway will not be passed, and errors beyond are afield. For the purpose of considering this preliminary question so much of the answer as raises other issues may be put away. The answer, after pleading other defenses, concludes as follows: "These defendants, for other and further answer and plea to the jurisdiction of the court, with respect to both the subject-matter of the suit and to the person of the defendant, say: That plaintiff ought not to have or maintain this suit against these defendants, because it appears not signed by James C. Dorian, prosecuting cause in truth and in fact the said information or pretended information in the nature of a quo warranto was never signed and filed by the said James C. Dorian as prosecuting attorney of Knox county, Missouri, and is not his information and complaint against these defendants, because prior to the time of the filing of the said information or pretended information the said James C. Dorian was requested by the relator herein to sign said information in his official capacity as prosecuting attorney of Knox county, Missouri, which he refused to do, and thereupon said information or pretended information was filed in this court without the official signature of the said James C. Dorian, prosecuting attorney of Knox county, Missouri, and without the legal signature of any one having legal authority so to do and sign the same. Defendants further state that under the Constitution and the laws of the state of Missouri the prosecuting attorney is vested with an official discretion in determining whether or not he will file a quo warranto proceeding against any person for usurping a public office, and that James C. Dorian, prosecuting attorney of Knox county, Missouri, did exercise his discretion in this matter by refusing to sign said information or pretended information, and by refusing to institute said quo warranto proceedings to oust these defendants as directors of the school district of the town of Hurdland, in Knox county, Missouri. Defendants, further answering, say that they are informed and believe the facts to be, not only that the said James C. Dorian, as prosecuting attorney of Knox county, Missouri, refused to sign and file said information as aforesaid, but that he is not now willing to prosecute the same as such prosecuting attorney of Knox county, Missouri. Defendants aver that a wrongful and improper use of the process of this court has been used at the instance and procurement of plaintiff to compel these defendants to appear and defend this suit at great cost, expense, and inconvenience, and that such action is wholly ineffective to give this court jurisdiction over said matters in this proceeding, or over these defendants, for the reasons aforesaid. Wherefore defendants pray that this suit may be abated; and now defendants, having fully answered, ask to be discharged."

The foregoing averments of the answer were put in issue by a general denial in the second clause of the replication. A finding of facts and conclusions of law were requested, and among other conclusions of law the following one, directed to the issue above outlined, was filed by the court, to wit: "Under the evidence and pleadings in the case the court declares the law to be that this court has no jurisdiction of this cause, and the finding and judgment should be for defendants." The foregoing was challenged as error in the motion for a new trial, and error is assigned here on that ground. Having entered judgment on other features of the case in favor of defendants, the judgment concludes as follows: "It is further adjudged and decreed that this court has no jurisdiction of this case, and that the information be dismissed, and that defendants have judgment for their costs in this behalf laid out and expended, and thereof execution is awarded."

The evidence anent the foregoing preliminary...