71 Mo. App. 27 | Mo. Ct. App. | 1897
In Commonwealth v. Burney, 4 Bain. 117, where a motion for leave to file an information in the nature of quo warranto was denied because the court had no power to try the issues of fact, it was said by Tilghman, C. J.: “The advocates of the motion say that we ought to proceed until we meet with this impediment; that very probably no issue of fact will arise; and that, if it should, it is time enough to stop when we come to it. To this mode of reasoning I can not accede. It behooves the court to look to their first step, or they may find themselves placed in a very undignified situation. I can not consent to institute a proceeding of which I do not clearly see the end, in which the defendant may baffle us at pleasure -by insisting on an issue in fact which it is not in our power bo try.”
We may with propriety quote a part of what was said by Judge Napton in State v. MeIlhany, supra, which is to the effect: “There is no doubt that this court is mainly intended by the constitution as an appellate tribunal. In some instances original jurisdiction has been given it, but chiefly with a view to enable it to exercise more effectually its superintending control over inferior courts. Its power in proceedings in quo warranto seems to be a departure from the general policy evidenced in the construction of the court. Whether this jurisdiction was designed to extend to that class of informations, which, under the English statutes, had become essentially civil actions, commenced and conducted in the name of a public officer, but really for the mere ascertainment and settlement of private rights, is a question which might justify some hesitation and consideration, if it were necessary now to determine it. The legislature, it is certain, have furnished this court with none of the machinery
Substituting the word “relation” for that of “information” in the above quotation and we have the form of words usually employed in describing the relator in an information of this kind. State v. Buskirk, 43 Mo. 111.
We have thus summarized the substantive allegations of the said information to show that it is not ex officio but an information in the nature of quo warranto, at the relation of a private person and for his benefit. If the information were an ex officio information by the attorney-general, it .would have been unnecessary for the relator to have verified the same by his affidavit; the attorney-general is a sworn officer of the state government and an information officially signed and filed by him must be regarded as if under the sanction of his oath. It .is therefore clear to our mind that the
No special reasons are shown in the present instance for invoking the original jurisdiction of this court. The remedy pointed out by statute, chapter 132, Revised Statutes, authorizing proceedings of this kind in the circuit court, ought in all cases, to be followed unless it appears to the satisfaction of the court that there is a necessity for the exercise of its original' jurisdiction. No good reason is made to appear why the relator should not be required to follow the provisions of the statute just referred to.
Conforming to" the well established precedents in this state, the writ of quo warranto, which has been improvidently issued, will be dismissed. State v. Claggett, 73 Mo. 388.