166 Mo. 529 | Mo. | 1902
On June 18, 1901, Joseph W. Eolk was circuit attorney within and for the city of St. Louis, and Thomas J. Buckley was a member of the'House of Delegates from the Twenty-fourth ward in said city. And on that day the State of Missouri at the relation of William G. Buechner presented a petition to one of the judges of the circuit court of said city, the Hon. John A. Talty, in which he alleged that he was legally elected to the position then and now unlawfully held by said Thomas J. Buckley, and requesting that a writ of mandamus be issued, commanding Joseph Eolk as circuit attor
On June 20,1901, Eolk made application to the presiding judge of Division No. 2 of the Supreme Court for a writ of prohibition to prohibit Judge Talty from further proceeding with the case, which said application was as follows:
In the Supreme Court of the State of Missouri, April Term, 1901, Division No. 2 thereof.
State ex rel Joseph Folk, Relator,
vs.
John A. Talty and William G. Buechner, Respondents.
Relator states that he was, on November 6, 1900, duly elected circuit attorney within and for the eighth judicial circuit of Missouri, and thereafter, in due time and in the proper manner, legally qualified and became, and is now the circuit attorney for the eighth judicial circuit and exercises the powers and duties -of said ofiiee. That John A. Talty is one of the judges of the eighth judicial circuit of the State of Missouri, commissioned and legally qualified and acting as such, presiding over Division No. 7 of the circuit court of the city of St. Louis. That William G. Buechner is a citizen of the city of St. Louis and the State of Missouri.
Relator states that on June 17, 1901, there was filed in the ofiiee of the clerk of the circuit court in the city of St. Louis and presented to the Honorable John A. Talty, judge of Division No. 7 of the circuit court in vacation, at the June term, 1901, on the eighteenth day of June, 1901, a petition praying for writ of mandamus, which petition is in words and figures following, to-wit:
*541 PETITION FOR MANDAMUS.
State of Missouri, City of St. Louis, ss.
In the circuit court, June term, 1901.
State of Missouri, at the relation of William G. Buechner, petitioner,
vs.
Jos. W. Polk, circuit attorney within and for the Eighth judicial circuit, defendant.
“I. The petition of William G. Buechner respectfully represents to the court that on Tuesday, the second day of April, 1901, at the city of St. Louis, Missouri, an election was duly held for certain officers in and for said city, including a member of the House of Delegates of the Municipal Assembly from each ward of said city for a term of two years from and after that date.
II. That at said election William G. Buechner, the petitioner, one Thomas J. Buckley, one Pelix Lawrence, and one M. Ballard Dunn, were candidates and the only candidates in the Twenty-fourth ward of said city for member of the House of Delegates aforesaid from said ward; that your petitioner received the highest number of legal votes cast in said ward for said office at said election; that the judges of election in the various precincts of said ward duly canvassed the votes cast for said office at said election and certified the same results to the Board of Election Commissioners for the city of St. Louis, Missouri; that the said Board of Election Commissioners, in accordance with the law, canvassed and added up the correct returns of the judges of election of the Twenty-fourth ward for member of the House of Delegates from said ward, and found and declared according to law, that your petitioner had received 1,827 votes, Thomas J. Buckley, 1,822 votes, Pelix Lawrence, 922 votes, and M. Ballard Dunn 18 votes for said office, and that your petitioner, having received the highest number of votes east for said office,, was the duly elected candidate; that the said Board of Election Commissioners, on April 6, 1901, issued to your petitioner a certificate of election for said office as provided and required by law; that on April 6, 1901, your petitioner took and subscribed the oath of office before the City Register of said city, as prescribed by the charter of said city, and that he then was and became qualified in every respect to sit and act as a member of the house of delegates aforesaid from the said Twenty-fourth ward.
III. Petitioner states that at the time of his said election he possessed and he now possesses all of the qualifications required by the charter of the city of St. Louis to be possessed by members.*542 of said House of Delegates; that at the time of his election he had attained the age of at least twenty-five years; had been a citizen of the United States and of the city of St. Louis at least three years and of the Twenty-fourth ward of said city for at least two years next before said election; he is not and had not at that time been directly or indirectly interested in any contract with the said city or with any department or institution thereof; was not indebted to the city or state on account of any tax; and has never been convicted of malfeasance in office, bribery or other corrupt practices or crimes, and that he had paid city and State taxes for two years next before said election.
IV. Petitioner further states to the court that on the organization of the House of Delegates aforesaid, to-wit, on April 6, 1901, the duly appointed committee on credentials of the members of said House of Delegates submitted a report to said house, in which it was stated that certain members, among them William G-. Buechner, your petitioner, from the Twenty-fourth ward, had received their certificates of election from the election commissioners of said city, and had duly qualified before the City Begister of said city, which report was unanimously adopted by said House of Delegates and spread on the journal of the proceedings of said House; that thereby petitioner was admitted to and thereafter, and until the time hereinafter stated, did occupy his seat in said House of Delegates as member thereof from the Twenty-fourth ward of said city, and was fully recognized by said House of Delegates as a lawfully elected member thereof; that he was called upon and permitted to vote on various measures and proceedings had in said House, and in every way, manner and form declared and proclaimed to be a member of said House and fully confirmed in his right and title to his seat in said House as such member.
V. And petitioner further states to the court that thereafter, to-wit, on April 9, 1901, said Thomas J. Buckley, conspiring with a majority of the members of said House of Delegates to unlawfully deprive petitioner of his seat in said House of Delegates, caused and procured to be brought before said House a contest of the election of your petitioner, said Buckley claiming therein to have received a higher number of votes than petitioner for said office at said election; and thereupon, said House of Delegates, in pursuance of the conspiracy aforesaid, against the protest of petitioner, and without authority of law, took and assumed jurisdiction to judicially determine said contest of election of said Buckley against the petitioner; that said House of Delegates without previous notice to petitioner, and without giving petitioner opportunity to be heard or to defend his rights to*543 his said seat by a mere majority vote, declared petitioner’s seat vacant, and that said Buckley had been duly elected thereto and that he had received a majority of votes at the election aforesaid for said office, and ejected petitioner from his seat and installed said Buckley therein.
VI. Petitioner states that from that time until the filing of this petition the said Thomas H. Buckley, without legal warrant, certificate of election, grant or right whatsoever, has held, used and enjoyed the office of member of the House of Delegates from the Twenty-fourth ward: that he has usurped, intruded into and unlawfully held said office and still does usurp, intrude into and unlawfully hold and exercise said office at the city of St. Louis, Missouri, aforesaid, in contempt of and to the great damage and prejudice of the authority of the State of Missouri, and to the great and irreparable damage and prejudice of this petitioner.
VII. Petitioner further states that the defendant, Joseph W. Polk, is the circuit attorney within and for the Eighth judicial circuit of the State of Missouri; that petitioner applied to said circuit attorney and requested him in his official capacity to ex-. hibit to this honorable court an information in the nature of a quo warranto, at the relation of this petitioner, against the said Thomas J. Buckley, according to the statute in such cases made and provided to oust said Buckley from petitioner’s seat in said House of Delegates; that petitioner presented and submitted to said circuit attorney a petition in due form in the nature of a quo warranto containing a statement of the facts of the usurpation of said Buckley as aforesaid, and stated that he desired to prosecute such a proceeding against said Buckley at his own expense, and that he had employed counsel to prosecute such proceeding in his own behalf, but that said circuit attorney, in violation of his official duty to the State of Missouri and of his duty to your petitioner as a citizen and taxpayer and the rightful claimant of said office, and with a wrongful determination to deprive petitioner of said remedy and to leave him without remedy in the premises, refused and still refuses so to do. Petitioner states that he has applied to Edward C. Crow, the Attorney-General of the State of Missouri, and requested him to exhibit said information in his official capacity, at the relation of petitioner, and stated to him that he desired to prosecute the same at his own expense and had employed counsel to act in his own behalf, but that said Attorney-General has refused and still refuses so to do.
VIII. Petitioner states that he is without further remedy*544 in the premises, save and except by the compulsory process of this honorable court.
Wherefore petitioner prays that by writ of mandamus the said defendant, Joseph W. Folk, circuit attorney within and for the Eighth judicial circuit aforesaid, be commanded and required to sign and exhibit in this court an information in the nature of a quo warranto, at the relation of this petitioner, against the said Thomas J. Buckley, to require him to show by what authority he claims to have, use and enjoy the office, rights, liberties and privileges of member of the House of Delegates of the Municipal Assembly of the city of St. Louis, Missouri, from the Twenty-fourth ward thereof; and for such other process, orders and remedies in the premises as may to the court seem meet and proper.
C. W. Rtttledqe,
Attorney for William O. Buechner, the Petitioner.
State of Missouri, City of St. Louis, ss.
William G. Buechner, being duly sworn, upon his oath, states that the matters and things stated in the foregoing petition are true to the best of his knowledge and’ belief.
Wm. G. Buechner, Petitioner.
Subscribed and sworn to before me this seventeenth day of June, A. D. 1901. My term expires January 29, 1903.
(Seal.) Albert C. Blanke, Notary Public.
And that afterwards, on the eighteenth day of June, 1901, said John A. Talty, acting as judge of Division No. 7 of the circuit court of St. Louis city, in vacation, at the June term, 1901, issued an alternative writ of mandamus, commanding the said Joseph W. Folk, circuit attorney of the Eighth judicial circuit of the State of Missouri, to sign and exhibit an information in said court in the nature of a quo warranto at the relation of William G'. Buechner against the said Thqmas J. Buckley to require him to show by what authority he claims to have, use and enjoy the office, rights, liberties and privileges of a member of the House of Delegates of the Municipal Assembly of the city of St. Louis, Missouri, from the Twenty-fourth ward thereof, or to appear before said circuit court in courtroom No. 7, on Friday, June 21, 1901, at ten o’clock a. m., then and there to show cause, if any,' why said Joseph W. Folk should not so file said information in the nature of a quo warranto aforesaid. Relator states that the object and nature of said proceedings of mandamus is to compel relator in his official capacity as circuit attorney to file an information in quo warranto to determine a contested election for membership in the House of Delegates in the Twenty-fourth ward*545 between William G-. Bueehner and Thomas J. Buckley; that said election, contested under article 3, section 8 of the charter of the city of St. Louis, has been determined by said House of Delegates, and that under said article 3, section 8 of the charter of the city of St. Louis, each House of the Municipal Assembly “shall be the sole judge of the qualification, election and return of its own members,” and each house is, under the authority vested in it by the charter, legally authorized to declare all that constitutes a legally elected member of each of said respective bodies of the Municipal Assembly.
Relator states that under the Constitution and the laws of the State of Missouri the relator 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 relator did exercise his discretion in this matter and investigated the question and decided that it was his duty to refuse to institute said quo warranto proceedings to oust Thomas J. Buckley as a member of the House of Delegates, for the reason that, under the Constitution and laws of the State of Missouri, after the House of Delegates had taken up the matter of the contest between Bueehner and Buckley for the seat in the Twenty-fourth ward of the city of St. Louis in said House and determined the same, said finding of said House of Delegates and their determination as to the right and authority of Bueehner and Buckley in the matter of said contest could not be reviewed in a quo warranto proceeding.
And relator states that, under the Constitution and laws of the State of Missouri it is made the duty of the Supreme Court to see that the circuit court of the city of St. Louis, and each division thereof, and the judges thereof, as well as other inferior courts, keep within the bounds and limits of their respective jurisdictions prescribed for them by the Constitution and statutes of the State.
Relator states that the proceedings in the circuit court of the city of St. Louis, before John A. Talty as judge of Division No. 7 thereof, in vacation, are in violation of the Constitution and laws of the State of Missouri and to the manifest damage, prejudice and grievance of the relator and the public and are wholly illegal and void.
Relator states that the proceedings aforesaid now being had in the circuit court of the city of St. Louis, Division No. 7 thereof, is a direct attempt on the part of said circuit court to try in a quo warranto proceeding a contested election case and deter*546 mine, the right to ■ a seat in the House of Delegates from the Twenty-fourth ward in the city of St. Louis, and that under the Constitution and laws of this State a quo warranto proceeding is not a contested election case within the meaning of the Constitution.
Relator further states that said proceeding in thfe circuit court of the city of St. Louis, Division No. 7 thereof, is a direct, illegal and unauthorized attempt to determine the right of William G. Bueehner to a seat in the House of Delegates from the Twenty-fourth ward in the city of St. Louis.
Relator further states that said proceedings in said circuit court in the city of St. Louis, Division No. 7 thereof, is a direct and unauthorized attempt on the part of the circuit court of the city of St. Louis, Division No. 7, thereof, and John A. Talty as judge thereof in vacation, to direct and compel relator as circuit attorney of the Eighth judicial circuit of Missouri to file a proceeding in quo warranto to determine the right to a public office, and that the authority and power to determine when and under what circumstances relator will file a quo warranto to determine the right to a public ofiice is by the Constitution and laws of Missouri vested in the circuit attorney of the city of St. Louis, and that relator necessarily has an official discretion to exercise to determine the question as to when a quo warranto should be filed, and, therefore, said effort of said circuit court and said John A. Talty as judge thereof, in vacation, is an unwarranted and unlawful usurpation of power and jurisdiction not possessed by said circuit court in the city of St. Louis, Division No. 7 thereof, nor by said John A. Talty as judge thereof in vacation.
Relator states that neither said circuit court of the city of St. Louis, Division No. 7 therepf, nor John A. Talty as judge thereof, in vacation, has power or authority by mandamus to compel relator to file quo warranto proceedings to determine the question as to whether or not William G. Bueehner is entitled to a seat in the House of Delegates from the Twenty-fourth ward of the city of St. Louis.
Relator states that it belongs peculiarly to the Supreme'Court to put official construction upon the statutes of the State of Missouri and the Constitution thereof and the common law of this State, and that it is the duty of the Supreme Court to prohibit the circuit court or any division thereof or any judge thereof in. the city of St. Louis or any other inferior court from placing any construction on the statute or laws or Constitution of the State of Missouri different from that which is put upon them by the Supreme Court; that the said circuit court of the city of St.*547 Louis, and all other courts of the State of Missouri, are to expound and construe the statutes and laws of this State as the Supreme Court shall say the same ought to be expounded, in order that there may be prevented the disorderly and disgraceful spectacle of the officers of the different courts with different processes coming in direct collision; and in order that the judiciary shall not unlawfully and illegally interfere with the executive and legislative branches of the State government acting within their proper sphere and according to law. And to this end it is the duty of this court to prevent a misconstruction of the statutes by prohibition, and this court has power and jurisdiction so to do.
Wherefore, relator prays the remedy of a writ of prohibition against John A. Talty and William G. Buechner and that the same be issued and directed to them, prohibiting them from further continuing the mandamus proceedings styled “The State of Missouri, at the relation of William Gr. Buechner, petitioner, vs. Joseph Folk, circuit attorney within and for the Eighth judicial circuit, defendant,” in the circuit court of St. Louis, Division No. 7 thereof; relator further prays that the order heretofore issued by John A. Talty, judge of Division of No. 7 of the circuit court of the city of St. Louis, in vacation, ordering and commanding said Joseph W. Folk, circuit attorney of the Eighth judicial circuit of the State of Missouri, to sign and exhibit in said circuit court an information in the nature of a quo warranto at the relation of William G. Buechner, petitioner, against the said Thomas J. Buckley, to require said Buckley to show by what authority he claims to have, use and enjoy the office, rights, liberties and privileges of a member of the House of Delegates of the Municipal Assembly of the city of St. Louis, Missouri, from the Twenty-fourth ward thereof, or to appear before said circuit court in courtroom No. 7 on Friday, June 21,1901, at ten o’clock a. m., then and there to show cause, if any, why relator should not file said quo warranto proceedings, be set aside and held for naught, and that the said respondents and each of them be prohibited from taking any further action in the premises aforesaid.
, Edward C. Crow,
Attorney-General for Belator.
In the Supreme Court of Missouri, Division No. 2.
State ex rel. Joseph W. Folk, Relator,
vs.
John A. Talty and William G. Bueehner, Respondents.
Now at this day comes respondent, John A. Talty, and for his return to the order to show cause why a writ of prohibition should not issue as prayed at the suggestion of relator herein, admits that he did, acting as judge of Division No. 7 of the circuit court of St. Louis city, in vacation, at the June term, 1901, issue an alternative writ of mandamus commanding relator, Joseph W. Folk, to exhibit an information in said court in the nature of a quo warranto, at the relation of William G. Bueehner and against Thomas J. Buckley, or to appear before said circuit court in courtroom No. 7 on Friday, June 21, 1901, at ten o’clock a. m., and show cause why he should not do so, and respondent further states that he made said order so that he might hear the parties in court and there determine whether under the law and the facts he should make the order prayed for against relator; that since the order made by this honorable court respondent has refrained from all action in the premises and holds himself in readiness to comply with any orders made by it.
Wherefore respondent prays that the writ of prohibition be not issued against him as prayed by relator, and that he go hence with his costs. John A. Talty, pro se.
In the Supreme Court of Missouri, April term, 1901. Division No. 2.
State ex rel. Joseph W. Folk, Relator,
vs.
John A. Talty and William G. Bueehner, respondents.
Comes now respondent, William G. Bueehner, and for answer and return to the petition and the writ of prohibition heretofore issued
I. Admits that the relator herein is the circuit attorney within and for the Eighth judicial circuit of Missouri. Admits that John A. Talty is one of the judges of the Eighth judicial circuit, presiding over Division No. 7 of the circuit court of the city of St. Louis, and this respondent is a citizen of the city of St. Louis and State of Missouri. Admits that he filed the peti*549 tion for a writ of mandamus against relator as set out in the relator’s return, in the circuit court of the city of St. Louis, Missouri, and that said petition was presented to the Honorable John A. Talty, judge of Division No. 7 of said circuit court. Admits that said John A. Talty, as judge of said division of said circuit court, upon presentation of said petition to him, issued an alternative writ of mandamus against the relator herein as circuit attorney within and for the Eighth judicial circuit, commanding him to sign and exhibit an information in the nature of a quo warranto, at the relation of this respondent, •against Thomas J. Buckley, or to show cause why he should not so do, as alleged in relator’s petition.
II. Denies that the object and nature of said proceedings in mandamus were to compel the relator herein to file an information in quo warranto to determine a contested election for member of the House of Delegates in the twenty-fourth ward between William G. Buechner and Thomas J. Buckley, as alleged in relator’s petition herein, but states that said proceedings were to compel relator to exhibit an information in the nature of a quo warranto, at the relation of this respondent, against said Buckley, to require him to show by what authority he holds and executes said office, and to oust him from said office if he failed to show any legal authority for holding same. Denies that the relator herein is, under the Constitution and laws of Missouri, vested with an official discretion in determining whether or not he will file an information in the nature of a quo warranto at the relation of any person desiring to prosecute against any person usurping a public office; and this respondent states that the statute in such cases makes it mandatory on the relator as the incumbent of the office of circuit attorney to exhibit such an information and the circuit court of the city of St. Louis, Missouri, is fully empowered under the Constitution and laws of Missouri to compel him by mandamus to perform such a •duty imposed on him by law. Denies that the mandamus proceedings aforesaid are in violation of the Constitution and laws of Missouri, to the manifest damage, prejudice and grievance of the relator and the public, and that same are wholly illegal and void. Denies that said proceedings are a direct' attempt on the part of the circuit court to try in quo warranto proceedings a contested election case, and to determine the right to a seat in the House of Delegates from the Twenty-fourth ward of the city of St. Louis. Denies that said proceedings are a direct, illegal and unauthorized attempt to determine the right of this respondent to his seat in the house of delegates aforesaid. Admits each and*550 every allegation set out in relator’s petition not controverted in this return.
III. This respondent for further answer and return states that he is the duly elected member of the House of Delegates of the Municipal Assembly of the city -of St. Louis, Missouri, from the Twenty-fourth ward; that he was so elected at the election held April 2, 1901, in the city of St. ■'Louis; that he received the highest number of votes for said office; that the Board of Election Commissioners for the city of St. Louis duly issued to him his certificate of election; that he took the oath of office before the City Register of said city; that he was duly installed in his office at the organization of said House of Delegates; that he had all of the qualifications for said office required by law; that the House of Delegates, after his installation in said office, and at the instance of said Thomas J. Buckley, and without any notice, or requiring any notice to be given to the respondent, undertook to try and determine a contest of election of this respondent instituted in said House by said Buckley; that said House of Delegates, against the protests of this respondent, and without giving him an opportunity to be heard, arbitrarily decided said contest against this respondent, ousted him from his office and installed said Buckley therein; and that said Buckley from that time to the present time has held and executed said office.
IV. This respondent states that the action of the House of Delegates aforesaid in trying and determining an election contest against one of its members,' ousting him and installing another therein was without warrant or authority of law; that its action in the premises was an unlawful infringement and usurpation by a legislative body upon the functions and powers ofr the judiciary of the State; that the trial and determination of an election contest of a municipal officer is a proceeding, under the Constitution and laws of Missouri, for the determination of the judicial branch of the State government.
V.This respondent states that the Constitution of the State of Missouri provides that the powers of the government shall be divided into three branches — the legislative, the executive and the judicial- — and that each shall be confined to a separate magistracy, and that no branch shall exercise the powers properly belonging to any other branch; that the action of the House of Delegates aforesaid, being the trial and determination of a matter properly belonging to the judiciary by a legislative body, was a violation of this provision of the Constitution, and therefore void.
*551 VI. This respondent further states that the Constitution of the State of Missouri further provides that the trial and determination of contested elections of municipal officers shall be by the courts of law; that the action of the House of Delegates aforesaid being the trial and determination of an election contest of a municipal officer by a legislative body was in violation of this provision of the Constitution, and therefor void.
VII. This respondent further states that if the House of Delegates as alleged in relator’s petition herein, undertook to try and determine the election contest of said Buckley against this respondent, under and by authority of the provisions of article 3, section 8, of the charter of the city of St. Louis, which provides that “each house shall be the sole judge of the qualifications, election and returns of its own members,” and if said section does undertake to give the House of Delegates the power to try and determine election contests of its own members, said section is in conflict with the provisions of the Constitution above mentioned, and is, therefore, void, and any act of the House of Delegates thereunder is wholly void; that the article in the Constitution of Missouri, which authorizes the promulgation of the charter of the city of St. Louis by the people of St. Louis, expressly provides that “such charter shall always be in harmony with and subject to the Constitution and laws of Missouri.”
VIII. This respondent further states that under the Constitution and laws of Missouri, the circuit court of the city of St. Louis, is vested with supervisory control over the action of inferior tribunals, and if the House of Delegates aforesaid had power to determine an election contest, its action was judicial in its nature and being that of an inferior tribunal its action was subject to the supervisory control of the circuit court aforesaid, and the circuit court of the city of St. Louis has the power in quo warranto proceedings to oust said Buckley from said office, if it finds him to be an.intruder.
IX. This respondent states that the action of the House of Delegates aforesaid, being without legal authority, was wholly void; that the said Thomas J. Buckley, holding said office solely by reason thereof, and not being the duly elected candidate to said office, became, was and is an usurper and intruder into said office, and he unlawfully holds and executes the same.
X. This respondent further states that the laws of the State of Missouri provide that in ease any person shall usurp, intrude into and unlawfully hold and execute any office, the circuit attorney in the jurisdiction in which the action arises, shall exhibit to the circuit court, an information in the nature*552 of a quo warranto, at the relation of any person desiring to prosecute the same; that this respondent applied to the relator herein, and stated all of the facts of the usurpation of said office by said Buckley, and requested the relator to exhibit an information in the nature of a quo warranto at this respondent’s relation against said Buckley, and stated that he desired to prosecute the same at his own expense, but that the relator refused so to do, that this respondent applied to Edward G. Crow, as Attorney-General of the State of Missouri and requested him to exhibit said information in the nature of a quo warranto at this respondent’s relation, and that he refused so to do; that he again applied to the relator herein and the relator again refused to exhibit said information, and being without further remedy in the premises, this respondent applied for the writ of mandamus aforesaid against the relator.
XI. This respondent further states that if a discretion is vested in the circuit attorney as to whether or not he will exhibit an information in the nature of a quo warranto at the relation of any person desiring, to prosecute, that such discretion can' only be exercised in a ease of disputed facts; that in this case there is no dispute as to the facts and mandamus will lie to control an erroneous conclusion of law on the part of any discretionary officer, where the matter before him is preliminary to the action or the trial of the action proper, and is a question of law on a stated set of facts.
XII. And this respondent further states that the relator herein, the said Thomas J. Buckley, and a majority of the members of the House of Delegates aforesaid, belong to the same political party or organization, and that said party or organization is politically opposed to the party to which this respondent belongs; that this respondent applied to the relator and stated the facts of his case, as hereinbefore, and in relator’s petition, set out, all of which the relator admitted he knew to be trae; this respondent further informed relator that he had employed counsel in good standing to examine the law bearing on said facts and give an opinion on the same; that said counsel did so, and gave an opinion that said Thomas J. Buckley was in law a usurper, and could be ousted from said office, and said counsel so stated the same to the relator, and fully argued the ease with him; that this respondent stated to relator that he was ready and willing to pay all costs and expenses of said proceedings in quo warranto and had employed counsel to prosecute the same in his behalf to final determination; that all he required of relator was that he sign a proper petition in the nature of a quo warranto at this respondent’s relation, so that same could be exhibited*553 in the circuit court with relator’s official sanction, according to the requirements of the law, and relator was not required to do any other act in the case unless on his own volition, but relator arbitrarily refused to sign any such petition. And this respondent further states that from the foregoing facts he infers and therefore asserts the fact to be that the relator’s refusal aforesaid was because of partiality to said Buckley and prejudice, passion apd adverse interest to this respondent; and this respondent stated that under the law, where an official discretion is influenced by bad faith, partiality, prejudice, passion or adverse interest it can and will be controlled by mandamus, and such an official will not be heard to set up his official discretion in his defense.
Wherefore having fully answered herein the respondent prays that the temporary order of prohibition be dissolved; that the circuit court of the city of St. Louis, Missouri, and John A. Talty, presiding judge of Division No. 7 thereof, be ordered to further proceed with the mandamus proceedings herein prohibited, and that this respondent be discharged hence with his costs.
C. W. Rutledge, Attorney for William G. Bueehner.
And upon that return tbe relator filed the following motions:
In the Supreme Court of Missouri, October term, 1901, Division No. 2.
State ex rel. Jos. W. Bolk, Relator,
vs.
John A. Talty and William G. Bueehner, Respondents.
Comes now the relator herein and moves to strike out the return of John A. Talty, herein, for the reason that said return sets out no facts that show a legal reason for the issue of the alternative writ of mandamus commanding the relator, Joseph W. Rolk, to exhibit an information in said court in the nature of a quo warranto at the relation of William G. Bueehner and against Thomas J. Buckley.
Second, for the reason that said return does not show any legal grounds why the writ of prohibition should not issue in this cause.
Third, for the reason that respondent, John A. Talty, had no legal right to issue the alternative writ commanding relator to appear in said circuit court No. 7, in order that said John A. Talty, judge of said circuit court for the city of St. Louis,*554 Divisiou No. 7 thereof, might hear the parties in court and there determine whether under the law and the facts, he should make the order prayed for.
Edward O. Crow, Attorney-General.
In the Supreme Court of Missouri, October term, 1901. Division No. 2.
State ex rel. Joseph Eolk, Relator,
vs.
John A. Talty and William G. Buechner, Respondent.
Comes now the relator and moves to strike out all of paragraph four of the return herein, also, paragraph eight, paragraph nine, and paragraph ten, and particularly that portion of paragraph ten beginning with the words, “that this respondent applied to Edward C. Crow, Attorney-General of the State of Missouri,” etc., etc., and concluding with the words, “against the relator,” at the close of said paragraph ten. Also paragraph eleven of said return and paragraph twelve thereof, for the reason that the matters and facts set forth in the parts of said return which relator moves to strike .out are wholly immaterial to the issue involved in the controversy and constitute no reason why respondents herein should not be restrained by a writ of prohibition in this ease.
Edward C. Crow, Attorney-General.
In the Supreme Court of Missouri, Division No. 2, October term, 1901.
State ex rel. Joseph Eolk, Relator,
vs.
John A. Talty and William G. Buechner, Respondents.
Comes now the relator herein and moves the court to strike out the answer of the respondent William G. Buechner.
Eirst. Because the return of the respondent does not state any facts constituting a legal reason why the writ of prohibition should not issue in this case.
Second. Because the return shows it is an attempt to try an election contest for a seat in the House of Delegates for the Twenty-fourth ward in the city of St. Louis, by means of a quo warranto proceeding.
Third. Because the return of the respondent William G. Buechner shows that the circuit court of the city of St. Louis had no jurisdiction to issue the writ of mandamus against the relator herein.
Edward C. Crow, Attorney-General.
. The question then presented is, who is entitled under the statute as it now, stands to ash that an information in nature of a quo warranto he filed?
It was ruled in the case of the State ex rel. McCaffery v. Aloe, 152 Mo. 466, that prohibition is the proper remedy to prevent a court from assuming a jurisdiction it has not or exceeding a jurisdiction it has, and unless the circuit attorney had no discretion to exercise with respect to the quo warranto proceeding against Buehley, and was obliged to institute such proceeding against him upon the application of Buechner, or that in failing to do so, he was either not exercising his discretion at all or in so doing was acting in a capricious or arbitrary manner, the circuit court was without jurisdiction or authority to compel him to institute such proceeding, and prohibition was the proper remedy.
The first legislation in this State in regard to informations in the nature of quo warranto proceedings in the circuit court was in 1825, when the Legislature passed “An Act to regulate proceedings upon information in the nature of quo warranto,” page 654, Revised Laws 1825, the first section of which is as follows:
“That in case any person or persons shall usurp, intrude into, or unlawfully hold and execute any office, or franchise, it shall and may be lawful, to, and for, the Attorney-General, or the circuit attorney of the proper circuit with the leave of any circuit court, to exhibit to such court, one or more information or informations, in the nature of a quo warranto at the relation of any person or persons, desiring to sue or prosecute
The section of the act quoted is a substantial copy of the fourth section of an act of the Legislature of the State of New York with respect to informations in the nature of a quo warranto, passed February 6, 1188 (2 Laws New York, 1185-1188), by which it was provided that, “In case any person or persons shall usurp, intrude into or unlawfully hold and execute any office or franchise within this State, it shall and may be lawful to and for the Attorney-General, with the leave of the Supreme Court, to exhibit one or more informations in the nature of a quo warranto at the relation of any person or persons desiring to sue or prosecute the same who shall be mentioned in such information or informations to be the relator or relators.”
And under that statute the Attorney-General in the case of The People ex rel. Tell v. Sweeting, 2 Johns. Rep. 183, moved for leave to file an information, in the nature of a quo warranto against Sweeting, acting supervisor of the town of Manlius in said State. It was held that it was discretionary with the court to grant motions of the kind, or to refuse them.
By the Revised Statutes of New York, 1829, vol. 2, p. 581, this discretionary power was taken from the courts and vested in the Attorney-General in the following language: “Information in the nature of a quo warranto, may be filed in the Supreme Court of this State, by the Attorney-General,
In 1835 (Revised Statutes of Missouri, 1835, p. 523) the Missouri statute was changed, so as to read as follows:
“Section 1. In case any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise, the Attorney-General, or circuit attorney for the proper circuit, with the leave of any circuit court, shall exhibit to such court an information, in the nature of a quo warranto, at the relation of any person desiring to prosecute the same.”
It will be observed that the change in the statute in no way interfered with the discretionary power of the circuit court to grant or refuse permission to the Attorney-General or circuit attorney of the proper circuit to exhibit an information in the nature of a quo warranto at the relation of any person desiring to prosecute the same. This statute remained unchanged until March 20, 1872 (Laws 1872, pp. 66 and 67), when it was amended so as to read as follows:
“Section 1. - In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Attorney-General of the State, or any circuit, county or prosecuting attorney of the county in which the action is commenced, shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil cases, an information in the nature of a quo warranto, at the relation of any person desir
“At common law the Attorney-General, ex officio, has the right either to sue out a writ of quo warranto, or to bring an information in the nature of a quo warranto, to try the title to a public office, and is not compelled to ask leave of the court; but no private individual at common law has'a right to use the name of the Attorney-General for the purpose of suing out such a writ, or of bringing such an information.” [Attorney-General v. Sullivan, 163 Mass. 446.]
After the Act of 1830 of New York had been passed, and the provision of a former statute requiring leave of the court to file informations was dropped from the statute, and the act provided, that an information in the nature of a quo warranto may be filed in the Supreme Court of the State by the Attorney-General against individuals upon his own relation or upon the relation of any private party when any person shall usurp, intrude into or unlawfully hold or exercise any public office, etc., and the Supreme Court of that State in construing the statute as amended, in People v. Attorney-General, supra, upon an application for mandamus to compel the Attorney-General to file a quo warranto under the statute, ruled that since the change of the statute it was for the Attorney-General and not the court to determine whether in any particular case it was
Now, in the light of these authorities, is there anything in the language of the statute (sec. 4457, Revised Statutes 1899) indicative of an intention on the part of the Legislature to make it the imperative duty of the Attorney-General of the State or any circuit or prosecuting attorney of the county in which the action is commenced, to exhibit to .the court having jurisdiction, an information in the nature of a quo warranto at the relation of any person desiring to prosecute the same; and when such information has been filed and proceedings have been commenced, to prohibit him from dismissing or discontinuing the same without the consent of the person therein named as relator and thus surrender all control over the proceeding ?
It is argued by defendants that the statute is mandatory, in that the words “shall exhibit/’ as therein used, “means that the act itself must be done,” and that the circuit attorney had no discretion with respect to the matter but was bound to exhibit the writ when requested to do so by Buechner. 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 Statu
If the statute is to be interpreted in accordance with defendants’ contention, the proceeding would be at the mere will or caprice of any person in position to prosecute it, and the Attorney-General, circuit or prosecuting attorney as the case might be, a figurehead, a mere nonentity, and we are unable to believe that any such state of affairs was ever contemplated by the Legislature. The power of determining whether or not the action shall be commenced must exist somewhere, and from the very nature of the writ, its character and purpose, it should rest with the officer who represents the people of the State with respect to such matters. As was said in People v. Attorney-General, supra, the office of Attorney-General (and the same may be said of a prosecuting attorney) is a public trust. “It is a legal presumption that he will do his duty; that he will act with strict impartiality. In this confidence he had 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.”
It is too clear for discussion that under the Act of 1825, and up to 1872, the control of the action in the nature of quo warranto was retained by the State, and that leave of court to institute such proceeding was a prerequisite to the presentation of such a writ, nor since the amendment of the quo warranto law in 1872, and as it exists at this time, has there been an express provision in the statute taking away from the State and its officers the right to institute such proceedings at their discretion, and to control the same, in the absence of which it must be presumed that there was no intention to change the policy of the State with respect to quo warranto proceedings.
While mandamus can not be resorted to to control the exercise of discretion, it is not unfrequentlv used to correct the
There is nothing, however, disclosed by the record in this case, which justified the issuance of the writ of mandamus against the circuit attorney by the defendant, Talty, upon that or any other ground.
Our conclusion is that it was not within the power or jurisdiction of Judge Talty as judge of the circuit court of the city of St. Louis to compel Circuit Attorney Eolk, to exhibit a writ in the nature of a quo warranto at the relation of defendant Bueehner against Buckley to require him to show by what authority he claimed to hold the office of a member of the House of Delegates of the city of St. Louis.
Eor these considerations the provisional rule is made absolute.