State ex inf. Hadley v. Missouri Pacific Railway Co.

| Mo. | Jul 2, 1907

PER CURIAM:

In overruling the demurrers in these cases the court does not decide any of the questions touching the merits, which were discussed in the oral arguments. The only point decided is that these informations are sufficient to require the defendants to answer the charges made by the Attorney-General against them, either by specifically denying the charge or stating the facts which in the opinion of the defendants justify them in doing what they are charged with doing.

The pleadings in a proceeding of this nature are not governed by the rules of pleading stated in the Code of Civil Procedure; the only provision of the Code that is extended to a proceeding in quo warranto is contained in section 675, Revised Statutes 1899, relating to amendments.

An information in the nature of quo warranto filed by the Attorney-General is not of the character of a petition in an ordinary case either in law or equity; it is the official call of the Law Officer of the State on the corporation or individual to show by what authority it or he is assuming to exercise a particular franchise. The rules of pleading in such case are thus stated in 17 Ency. PI. and Pr., 457, 458: “The office of an information in the nature of a quo warranto is not to tender an issue of fact, but simply to call upon the defendant in general terms to show by what warrant or charter the privilege, franchise, or office is held or exercised. Where the State calls, upon one to show canse by what authority he exercises a corporate franchise or public office, the allegation by the Attorney-General of intrusion or usurpation may be of the most general character, while the defendant is required to set forth particularly the grounds of his claim and the continued exercise of his right, except where by statute the pleadings are more nearly assimilated to those in other civil actions.” In this State we have.no such statute. The same author, at page 467, says: “When one is called ■ upon by the State to show warrant or authority for the. exercise of a franchise or office pertaining to the State, the defendant must, by his plea, answer or return, disclaim all right to the franchise and deny its usurpation, or allege facts which, if true, will invest him with the legal title of pleading the charter or legislative grant of the franchise sought to be forfeited or seized, or by pleading directly and positively all the facts necessary to establish the title to the office which the defendant is called upon to justify; and in the absence of such an answer the State will be entitled to a judgment of ouster.” There is no such plea as a general denial in a case of this kind.

If these defendants are not doing what the Law Officer of the State, in a general way, charges them with doing, let them specifically deny the charge; if they are doing it or doing something like it and think they are justified in so doing, let them, specifically state it in their answers.

These demurrers go mainly on the idea that the informations are not sufficiently specific in detailing the facts which constitute the charge of usurpation; that idea is out of place in this kind of proceeding; the State calls on these corporations to answer and the duty of pleading specifically the facts rests on them.

In these cases the Attorney-General has (doubtless induced by a practice heretofore tolerated), made more statements of fact than necessary, but they are treated as surplusage.

The demurrers are overruled and defendants given until September 1 to- make return.