State v. Wilkie Land Co.

• Decision Date: 04 November 1942
• Docket Number: No. 26196.,26196.
• Citation: 165 S.W.2d 432
• Parties: STATE on inf. of McKITTRICK, Atty. Gen., ex rel. HANDLAN v. WILKIE LAND CO.
• Court: Missouri Court of Appeals

165 S.W.2d 432

STATE on inf. of McKITTRICK, Atty. Gen., ex rel. HANDLAN v. WILKIE LAND CO.

No. 26196.

St. Louis Court of Appeals. Missouri.

November 4, 1942.

Appeal from Circuit Court, City of St. Louis, David J. Murphy, Judge.

"Not to be reported in State Reports."

Quo warranto proceeding by the State at the information of Roy McKittrick, Attorney General for the State of Missouri at the relation of A. H. Handlan against Wilkie Land Company, a corporation, to secure the forfeiture of the charter and franchise of the corporation. From a judgment dismissing the proceeding, the relator appeals.

Affirmed.

J. Jules Brinkman and Francis C. Flynn, both of St. Louis, for relator.

Julius T. Muench and Norman Begeman, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

This proceeding was instituted by the filing of an information in the nature of a quo warranto to secure the forfeiture of the respondent's charter and franchise. The information is in three counts, viz: (1) That respondent is making an illegal and unwarranted use of its property, and dissipating its assets; (2) that the respondent made improper tax returns, with the intent of defrauding the State; and (3) that the respondent is illegally holding property not necessary for its corporate purposes, for a period longer than six years. The information was filed on November 9, 1939. On January 25, 1940, the respondent filed a demurrer to the information alleging that the information did not contain allegations of fact sufficient to constitute a cause of action against respondent, which demurrer was overruled on April 1, 1940, and later, on April 10, 1940, respondent filed an amended return, which contained among other allegations the charge that the information did not contain allegations of fact sufficient to constitute a cause of action against respondent, and the further charge that leave to institute the proceeding was improvidently granted by the court because Joseph A. Lennon, who signed the information as "Special Counsel for Attorney-General", had no authority to institute or prosecute the proceeding. On December 14, 1940, respondent withdrew its amended return and filed its motion to dismiss the proceeding on the ground that the information was filed by a special counsel for the Attorney-General without authority to institute the proceeding. This motion was sustained by the court on April 18, 1941, and the proceeding was ordered dismissed, and in due course the appeal to this Court followed.

Prior to the institution of this proceeding two other informations of the same purport as this had been successively filed, and each had been dismissed. The first information having been filed in June or July, 1939. The application for leave of court to file this information was signed as follows: "Roy McKittrick, Attorney-General of the State of Missouri. By J. A. Lennon, Special Counsel for Attorney-General of the State of Missouri." And the information was signed as follows: "Roy McKittrick, Attorney-General, by J. A. Lennon, Special Counsel for Attorney-General".

At the hearing of respondent's motion to dismiss the proceeding Mr. Joseph A. Lennon testified as follows: That in June or July, 1939, he was an Assistant Attorney-General, and at that time he had a conference with the Attorney-General in regard to this proceeding; that prior to such conference he had several conferences with Mr. Brinkman, an attorney representing the relator, and at least one, possibly two, conferences with Mr. Brinkman and Mr. J. E. Taylor, who was First Assistant to the Attorney-General at that time; that Mr. Taylor said it was the policy of the Attorney-General's office to not lend aid as a principle and as a practice to quo warranto suits; that they had no objection to such suits wherein the facts justified the filing of the action, provided somebody else would do the work, and that he would not take the responsibility for the matter, and he (Taylor) then took Lennon and Brinkman to the Attorney-General; that the Attorney-General made practically the same statement, and said that he didn't have enough men to do the work required by his office at that time, and the Attorney-General then said, as witness recalled his words, "Joe, you look into this matter and if you think the facts justify the filing of the suit, sign it, provided Brinkman does the work, because I don't want it to be taking your time away from your work in St. Louis". Mr. Lennon further testified that at that time, although he was an Assistant Attorney-General, his work was limited to the perfecting of appropriation bills pending before the Legislature, and the collection of delinquent taxes, and that he maintained an office in St. Louis. He further testified that a week or two after the conference with the Attorney-General he returned to St. Louis and Mr. Brinkman brought to him the first petition (information), and he read it over carefully, and read a long deposition, and also investigated some franchise tax forms which had been sent to the State Tax Commission for the purpose of assessing franchise taxes against corporations, and that he signed that petition (information) as Assistant Attorney-General; that as to the latter informations, he just considered that part of the same matter and just went on signing them.

Mr. Lennon further testified that in September, 1939, he discussed with the Attorney-General the fact that since 1936 he had written no opinions; had represented no departments; had done nothing but collect delinquent...