208 Mo. 442 | Mo. | 1907
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, C. H. Cockrum, James L. Car diner, D.S. DurallandS. C.Sur
"That as such they are calling elections of said school district of the town of Hurdland, submitting a proposition to vote and have submitted such 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 school house 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 forty 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 its 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,
“State of Missouri, at the information of James .0. 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 asigned by relator’s counsel and discussed in their brief; but defendants make a contention lying at tbe 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 on the face of said information that it was not signed by James C. Dorian, prosecuting attorney of Knox county, Missouri; and because, in truth and in fact, the said information, or pretended information in the nature of a qiw warranto, was never signed and filed by the said James 0. 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
“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
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 question tends to establish the following facts and develop the following condition: Belator, a taxpayer in the Hurdland school district, employed counsel learned in the law to test the right of that district to exist as a body corporate — to issue bonds for building purposes and run the village school. Thereupon they planned to exhibit an information in the nature of quo warranto, having for its object to disorganize, and end the corporate life of, the Hurdland school district. Nursing such intent, as they understood the law, they needed to borrow the “use of the name” -of the prosecuting attorney of Knox county, James C. Dorian. Accordingly, that official was asked to come to the office of Mr. Jones, one of relator’s counsel. When once there, the ball was set rolling by relator offering to retain him as counsel by paying him a fee for the “use
The testimony of three witnesses is preserved in the record, directed to what was said and done on the heels of the foregoing incident at Mr. Jones’s office— Black, Jones and Dorian.
Mr. Black testified it was explained to the prosecuting attorney (by Mr. Jones) that “it would have to be started in the name of James C. Dorian, prosecuting attorney. I believe you, [Jones] explained to him [Dorian] that he didn’t have to sign it, but that they would have to use his name, and he said all right.”
We shall not set out the testimony of Mr. Jones and Mr. Dorian in full. The substance will do.
Mr. Dorian testified, in effect, that the lawyers present (Mr. Jones, Judge Smallwood and himself) were of the opinion that the prosecuting attorney had no discretion in the matter whatever; i. e., that he, Dorian, was obliged to allow the use of his name.
Mr. Jones testified in part: “I turned to- the statutes of 1899, volume 1, to the form laid down there on page 50 of forms, to the form for quo warranto. I had it right before me, and I said, ‘Jim,’ I always called him Jim, I says, ‘We are talking of bringing this proceeding, and we will have to use your name. I know, I said, we cannot do it without your consent.’ I read the form over to him. ’ ’
All hands being’ of the opinion the prosecuting attorney had no discretion, and they had the rig’ht to
After the information was drawn, it was presented to him and he refused to sign it. On this point the pith of his testimony, as we interpret it, was to the effect that his will or wish as prosecuting attorney ran counter to the proceeding. Accordingly he refused to sign the information or take any part in the proceeding beyond the cold permission to “use his name” — a permission resulting from a concensus of opinion among the relator’s lawyers and the prosecuting attorney, that the latter had no right to exercise any official discretion.
The prosecuting attorney did not exhibit the information to the court and says he was not present when it was exhibited. Mr. Jones thinks he was in the court room but took no part in exhibiting it.
Mr. Jones further testified in substance that the prosecuting attorney, after declining to accept the fee, put his refusal to take part in the proceeding on the ground that he had friends in the Hurdland school district who were divided, and “he didn’t want to make them mad” by taking sides; that when he presented and read the information to him Dorian said it was all right; that, as they would have to use his name, he, Jones, said “they would like for him to sign his name and he said he would rather not, but for us to go ahead and sign his name and do whatever was necessary to make it legal.”
It appeared at the trial that Mr. Dorian assumed an attitude of hostility to the continuation of the case, he there expressing himself that the proceeding was improvident and not for the public good. The clear purport of his statement to the court on this behalf was that the case got into court through a mutual misapprehension of the law relating to his discretion,
The foregoing statement of facts, findings, rulings and pleadings is sufficiently full for us to pass upon the aforesaid preliminary question.
I. To our minds this record cannot be intelligently read and considered without coming to the conclusion that the prosecuting attorney of Knox county did not want to institute this proceeding; nor did he have any real or substantial part or lot in it. From end to end the plan was, first, that he should take a fee and assume the role of a hired man; second, (refusing the fee) the plan still contemplated that he should be eliminated as an official. This is so because it is plain that relator, through counsel, took part in persuading him that he did not have to sign his name or appear to do- aught as an officer. It is plain, too, that-while relator wanted his “consent,” he also wanted him to believe and helped to make him believe that he had no discretion not to consent. In other words, he was quite willing to accept a consent based on no-discretion (a droll and indefensible solecism in the realm of sense) and to have the door of the court opened, using the prosecuting attorney as a mere lifeless key to unlock the door, under a theory of the law which, good or bad, his counsel believed in and acted on. Their notion being that the officer could act colorably or nominally, and that they could act vicariously, it results that the case at bar is not a case in which the prosecuting attorney on behalf of the State of Missouri is responsible for relator’s present plight, whatever that plight be. We feel free, then, to look on the case as one unembarassed by elements of unfairness. Neither relator nor his counsel were misled by the prosecuting attorney. To the contrary, they led themselves; they chose, blazed out and took their own
II. That the prosecuting attorney of a county in Missouri is charged with a high, present and discriminating duty in exhibiting an information in the nature of a quo warranto; and that (as a corollary) he has such corresponding discretion to go or not to go on as his oath of office, his learning in the law, his sense of official fitness and justice may dictate to him, results from the inherent character of the proceeding itself. Por, be it remembered, the State is the reservoir of all power (through its executive, its legislative and its judicial branches) and it is fundamental that a private citizen may not intermeddle and that the State alone may inquire into the right of any person or corporation to usurp or intrude into the powers and duties of a governmental agency, like a public office, or a body corporate for public purposes. [Black v. Early, 208 Mo. 281, and cases cited.]
“At common law quo warranto proceedings, being for the purpose of inquiring into matters which concern a public right or of redressing a public wrong, must be in the name of the sovereign. In the United States the same rule prevails where the purpose of the proceeding is to inquire into a right or to redress a wrong concerning the State.” [17 Ency. Pl. & Pr., 428.]
The same treatise announces the rule to be (p. 433): “The right of a private person to proceed in his own name without the interposition of the proper State officer depends entirely and exclusively upon statutory authority, and in the absence of such authority he has no right to proceed.”
Now, observe, our statute (R. S. 18991, sec. 4457) charges the Attorney-General of the State and the prosecuting attorneys of the respective counties with the duty of speaking in the name of this sovereign
The statute uses the phrase “shall exhibit.” It was argued in this court in State ex inf. v. Talty, 166 Mo. 529, that the phrase “shall exhibit” as therein used “means that the act itself must be done;” and that the prosecuting attorney had no discretion with respect to the matter, but was bound, as of course, to exhibit the information when requested to do so by a given relator. In disposing of that argument, this court (p. 559, ei seq.) said: “That the word ‘shall,’ as generally used, is mandatory may be conceded, but it is a cardinal rule that ‘the intention of an act will prevail over the literal sense of its terms’ (Sutherland on Statutory Construction, sec. 219), otherwise it
In the Talty case, People ex rel. Peabody v. Attorney-General, 22 Barb. 114, was cited and the following quoted therefrom with approval: “Our Legislature has seen fit to invest the Attorney-General with this discretion. His office is a public trust. It is a legal presumption that he will do his duty; that he will act with1 impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is, in its nature, a judicial act from which there is no appeal, and over which courts have no control.”
We may borrow and use with profit more from the same ease. Thus: “The power merely is conferred; it is for him to determine whether a fit case is presented. As to everything but the form, the proceeding stand's now as it did at common law.” [See, in this connection, State ex rel. v. Meek, 129- Mo. l. c. 436.] “The usurpation of an office, though it frequently involves little else than private rights, is, in the eye of the law, a public offense. The only remedy is by an action in the name of the people. It
If, now, the court itself may not authorize a private prosecutor to go on, how much less may a prosecuting attorney (as here) strip himself of his official prerogative, loan it to another and authorize that other to go on?
We come, naturally, then, to the point of inquiring how the prosecuting attorney may evidence his exercise of official discretion and prerogative in exhibiting an information in quo warranto f That the information itself need not in terms be based on his oath of office or be authenticated by a jurat is clear. But it is equally clear that back of the information and back of the discretion exercised is the sanction and solemnity of a guiding, chastening and steadying official oath. What, then, shall he do to show that he has measured up to the standard of the law? May he, so to speak, farm out the privilege of exercising so nice, so powerful an official function? May he, as it were, loan his official arms and armor to those, who “have an ax to grind” — to those who have private rights to enforce, by giving to them “the use of his name”? The answer is: He may not. The maxim, delegatus non potest delegare, blocks the way. He must consider, weigh and then act. His act is evidenced by his signature to an information in due form and its exhibition in court. He may not avert his face and' wash his hands of responsibility, play the idle role of listlessly winking at the use of his name by others as was done in the case at bar; nor may such others receive at his hand as a gift the right to use his name in a proceeding instituted on behalf of the people.
If it be true that the functions of the prosecuting , attorney in quo ivarranto are functions “which cannot be taken away only by the clear terms of the statute, ’ ’ it would follow, necessarily, that what cannot be clipped off and taken away by the court ought not to be given away by the prosecuting attorney through caprice, pique, policy, distaste, inattention, design or otherwise.
In Attorney-General v. Sullivan, 163 Mass. l. c. 448, it was said: “But no private individual at common law has the right to use the name of the Attorney-General for the purpose of suing out such a writ, or of bringing such an information.” To the same effect is Commonwealth v. Lexington & Harrodsburg Turnpike Road Co., 6 B. Mon. 397.
Absent the common law right in a private person to use the prosecuting attorney’s name, it only remains to add that, as said before, no such right to institute a proceeding in quo warranto is conferred by our statute. It is from the fertile womb of the common law that the incidents of quo warranto, in the precise particulars under discussion, have birth. [State ex rel. v. Meek, supra.]
Applying to this case the foregoing reasoning and propositions of law, it is put beyond cavil or question that what was done here was in no just sense the act of the prosecuting attorney. It was not the exercise
In what has been said we have laid no stress upon the tardy wish of the prosecuting attorney, expressed at the trial, that the case be dismissed. He had lost the right to express wishes or control the litigation. Statutory opportunity had knocked at his official door unavailingly and, rebuffed, had turned away from him. It was left alone for the court to assert the dignity of the law in the control of its own process on the facts uncovered; and this the court well did.
III. We are cited to State ex rel. v. Campbell, 120 Mo. 396, as holding a contrary doctrine. So far as that case is reported, the trouble with the information does not appear. It does appear that a demurrer was filed, and that demurrant had judgment. The grounds of the demurrer are not set forth. However, in the brief of counsel it is insisted that the petition should be dismissed because not signed by the prosecuting attorney of Phelps county, but by a private citizen not under any oath of office; and the learned judge who wrote the opinion was cited to certain criminal cases as authority. In disallowing the contention, he treated the matter from the standpoint that quo loarrcmto was only quasi-eximmsd in its nature and, therefore, the rules which apply to informations of a criminal character and require them to be signed and authenticated by the prosecuting attorney, do not apply in instances like the present. There was no discussion of the philosophy of the theory of that dictum.
We conclude the case was well decided on the point considered. Other questions, therefore, need no attention.
Let the judgment be affirmed. It is so ordered.
