State ex rel. Hequembourg v. Lawrence

Holmes, Judge, delivered the opinion of the court. This petition seems to have been filed in this court under a misapprehension of the nature of the proceeding and of the practice of the court in cases of quo warranto. It appears to have been filed, and a writ of quo warranto was sued out, as upon an ex officio information. ■ An ex officio information in the nature of quo warranto may be filed in this court by the Attorney General, or by the'circuit attorney of the county, as representing the State- in cases arising within the county (in place of Attorney General) on behalf of State, as a matter of course, and without leave of the court specially granted for that purpose. It is a proceeding of a criminal nature on the part of the State as for a misdemean- or in the usurpation of a public office—R. C. ch. 18, § 10 ; 3 Black. Com. 262 ; 4 Black. Com. 312; Archb. Cr. Pl. 66 ; 6 Com. Dig. tit. quo warranto, A. C. 3. The case of the State v. Bernoudy, 36 Mo. 279, was an ex officio information on behalf of the State,-and not an information at the relation of a private person for the purpose of trying a matter of private right between two individuals. When the State, by her proper officers, sees fit to complain of this defendant for the usurpation of a public office, it will then be time to consider that case. ■ This is not such an information. It is an information in the nature of quo warranto in the name of the circuit attorney (as is usual and proper), at the relation of a private individual, and seeks the determination of a matter of private right betweem two private persons. Such an information can be filed in this court, only on leave specially granted for that purpose. This was originally a criminal proceeding, and where the information is filed by the Attorney General or by the circuit attorney, ex officio, and in behalf of the State, it is still to be considered as a proceeding of a criminal nature ; but where it is filed at the relation of a private individual to try a matter of private right between two persons claiming the same office, it is essentially a civil proceeding, though prosecuted in the name of the circuit at [539] torney, and, in some measure, under the forms of criminal procedure. The subject was examined in the case of the State ex. rel. McIlhany v. Stewart, 32 Mo. 382, and it was there decided that the granting of leave to file an information of this kind, in this court* was a matter of discretion, and would not ordinarily be granted. The constitutional jurisdiction of the Supreme Court in these cases is not doubted. In the absence of any statute provision on the subject, this jurisdiction will be exercised, when a proper case makes it necessary, according to the course of the common law — State t. Merry, 3 Mo. 278. In that case all the facts were admitted by the plea. Oases have been allowed to be submitted, it seems, on an agreed state of facts. But the practical inconvenience of calling a jury to our bar, in the absence of any statute specially applicable to such a proceeding, to say nothing of the press of regular business in this court, may be deemed a sufficient reason for denying the leave. The statute has given jurisdiction to the Circuit Court, where the parties may find an ample remedy, and where the issues of fact may be conveniently tried by jury—R. C. 1865, ch. 157. This statute has no application to this court. An information at the relation of a private person, being essentially a civil proceeding to ascertain and settle a mater of private right between two individuals, belongs more properly to the appellate jurisdiction of the Supreme Court—State ex. rel. McIlhany v. Stewart, 32 Mo. 382. Otherwise than upon an agreed case on the facts, it may be taken as settled by that case that leave will not'be granted here to file an information of this nature, except, perhaps, in a very extraordinary case. The petition does not profess to state the particular interest of the relator in this matter, nor does it contain a sufficient statement of the matter of private right in controversy between the relator and the .defendant to show a cause of action, and to enable the court to take jurisdiction of the subject in his behalf. When these facts are stated, issues of [540] fact may arise requiring a trial by jury. We think the petition should have been filed in the Circuit Court. The demurrer will be sustained. The other judges concur.