Opinion
No. 28671.
September 15, 1953. Motion for Rehearing or to Transfer to Supreme Court Denied. October 16, 1953.
Meyer Blocher, St. Louis, Kerth Schreiber, Clayton, Joseph Nessenfeld, St. Louis, of counsel, for relator.
Albert E. Schoenbeck, St. Louis, for respondent.
This is an original action in prohibition, filed in this court, wherein relator seeks to prohibit the respondent, Judge of the Circuit Court of St. Louis County, from further exercising jurisdiction in a quo warranto proceeding brought against relator in this prohibition action.
An information in the nature of quo warranto was filed in the St. Louis County Circuit Court by Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri, at the relation of "George A. Winterer, Joseph L. Moseley, Dale P. Summers, Thomas J. McWay and Angelo P. George as members of and constituting and composing the Missouri State Board of Optometry," and "John N. Betz, Bernard Jander, Edward Schwarz and Lawrence P. Feigenbaum, as individuals and as representatives of other optometrists similarly situated," against Schneider's Credit Jewelers, Inc., a corporation, relator herein. The information in the quo warranto proceeding alleged it was "filed, exhibited and prosecuted pursuant to Sections 531.010 et seq., Revised Statutes of Missouri, 1949 [V.A.M.S.], and other statutory law of the State of Missouri." It further alleged that the members of the Missouri State Board of Optometry were appointed and empowered pursuant to Chapter 336, Revised Statutes of Missouri, 1949, and that said Board was a legal entity in the nature of a quasi-public corporation; that the individual relators acting for themselves and as representatives of other optometrists similarly situated were all duly registered and licensed to practice optometry in the State of Missouri. and that all were engaged in the practice of optometry in St. Louis County, Missouri. It is further alleged in said information that they are acting as representatives of all other optometrists and persons similarly situated because it was impracticable for all of them to join as relators therein and that there are common questions of law and fact affecting the several rights of the numerous persons represented and that common relief is sought.
The information further alleged that the Schneider's Credit Jewelers, Inc., is a corporation organized under the laws of the State of Missouri and is doing business in St. Louis County and in the City of St. Louis; that said corporation "has been and is guilty of usurping and exercising privileges, franchises, rights, powers and authorities not granted by the State of Missouri to it or permitted by the law of said State," in that said Schneider's Credit Jewelers, Inc., "has been since January 1, 1951, and now is wrongfully and illegally engaging in the practice of optometry by and through agents and employees who are not registered optometrists and by and through agents and employees who are registered optometrists." The information specifies the alleged illegal acts, which specifications we need not recite.
It is further alleged in said information that the members of the State Board of Optometry have "the official duty and obligation of preventing, stopping and prohibiting the unauthorized practice of optometry in Missouri by any person, firm or corporation"; that by reason of the duty imposed on them they have the requisite special interest necessary to act as relators in the quo warranto proceeding. It is further alleged that the individual optometrists acting for themselves individually and as representatives of all other optometrists and persons similarly situated are engaged in the practice of optometry within the immediate neighborhood and vicinity of one or more of the locations at which the Schneider's Credit Jewelers, Inc., is allegedly engaging in the practice of optometry, and that such conduct and practice by said corporation is "adversely affecting, impairing, harming, damaging and destroying the professional practices, reputations and livelihoods of said" individuals and of other optometrists similarly situated and that by reason thereof they have the requisite and special interest necessary to prohibit the unauthorized practice of optometry by said corporation in St. Louis County and in the City of St. Louis, Missouri.
The prayer of the information asks for a forfeiture of the corporate charter of Schneider's Credit Jewelers, Inc.; for an order forbidding it to engage in the practice of optometry in Missouri and particularly in St. Louis County and the City of St. Louis, Missouri, and for an order forbidding said corporation from engaging in misleading, false and unlawful advertisements of optometric services in said city, county, and state, and for such other and further orders as to the court may seem meet and proper.
Schneider's Credit Jewelers, Inc., respondent in the quo warranto proceeding and relator herein, filed its motion to dismiss the information, setting up as grounds therefor the following: (1) Improper venue, in that the corporation has its principal office and its registered agent in the City of St. Louis. (2) Want of jurisdiction to render a judgment of ouster at the suit of the prosecuting attorney of St. Louis County, because the corporation is authorized to transact business throughout the State of Missouri and only the attorney general has the legal capacity to bring an action in quo warranto for ouster of a corporate franchise. (3) Lack of special interest on the part of the relators in the quo warrante proceeding. (4) The Missouri State Board of Optometry has no authority to act as relator in a quo warranto proceeding. This motion to dismiss the information was overruled by Honorable Amandus Brackman, Judge of the Circuit Court of St. Louis County, respondent herein.
In the petition for prohibition filed in this court relator alleges that the respondent intends to exercise further jurisdiction in the case, unless he is restrained from doing so in this proceeding. It is the contention of relator herein that the respondent lacks jurisdiction to require relator herein to plead to said information in quo warranto and to hold and conduct the trial and render a judgment on such trial and gives numerous grounds in support thereof, which we will take up and answer in their order.
In the answer and return of respondent herein it is conceded that the information in the quo warranto proceeding and the motion to dismiss contain the allegations and grounds set out hereinbefore.
Relator herein and respondent have stipulated that Schneider's Credit Jewelers, Inc., is a Missouri corporation organized February 14, 1930, under the provisions of the Missouri law governing the organization of business and manufacturing companies and has its principal office in the City of St. Louis, which is also the location of its registered office; that its charter permitted it to do business throughout the State of Missouri and at the time of the filing of the quo warranto action was actually doing business in the City of St. Louis and the County of St. Louis with places of business in both said city and county.
Relator herein has filed its motion for judgment on the pleadings.
The first point briefed and relied on by relator is that the subject of the quo warranto proceeding is the corporate charter and franchise of Schneider's Credit Jewelers, Inc.; that the charter is a contract between the State of Missouri and the corporation, and is state-wide in scope and situs and that only the State of Missouri, through the Attorney-General, may bring an action that has for its purpose the forfeiture of the corporate charter. Relator contends that the object of the quo warranto proceeding is to forfeit the corporate charter of Schneider's Credit Jewelers, Inc., and to oust it from its corporate franchise, and by reason thereof the subject of the action is in fact the corporate charter and franchise. In support of this contention relator cites the following cases: State on inf. of McKittrick v. American Insurance Co., 346 Mo. 269, 140 S.W.2d 36; State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902; State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34, 92 S.W. 185, 98 S.W. 539; and State ex inf. Gentry v. American Can Co., 319 Mo. 456, 4 S.W.2d 448.
In the case of State on inf. of McKittrick v. American Insurance Co., 346 Mo. 269, loc. cit. 277, 140 S.W.2d 36, loc. cit. 40, the Supreme Court pointed out that, "in quo warranto against a corporation, 'the state proceeds for a violation of the company's private contract'; namely, 'the corporation's implied contract not to violate the franchise granted by the state,' which means that it will comply with the general laws of the State as well as with express conditions of the grant of the right to carry on its business as a corporation." Relator concludes from this statement that the Supreme Court held the subject of the proceeding was the corporate charter and franchise. The court used this language in discussing the character of judgment that could be entered in a quo warranto proceeding. The court in its quest for an answer to the question whether it had jurisdiction of the subject matter of the information that formed the basis of the quo warranto proceeding before it, gave the following as the subject of inquiry in the proceeding, when it said, 140 S.W.2d loc. cit. 37: "This is an original proceeding in the nature of quo warranto on information of the Attorney General. The question now to be decided is whether this court has any jurisdiction of the subject matter of this information. * * * As to the first proposition, we think it is clear that, if we disregard the allegations concerning the merits of the 16 2/3% increase and the ownership of the impounded funds, the Attorney General's information alleges sufficient facts to show another and separate transaction. That transaction alleged was that respondents 'entered into an agreement, conspiracy, combination and confederation' to pay money to Pendergast to influence O'Malley and to bride O'Malley to stop opposition on the part of the State and interested insurance policyholders to respondents' rate increases, and to settle their claims against the impounded funds, * * *. We hold that such a separate transaction is sufficiently stated in the information as a ground for ouster." (Emphases ours.) This statement of the Supreme Court clearly indicates it held the acts and conduct of respondents, which constituted bribery of public officials, as the subject matter of the quo warranto information. The subject of inquiry was the acts charged against respondents and the charter and franchise were only to be considered when determining the character of judgment to enter.
In support of its contention that the subject of the quo warranto proceeding is the corporate charter and franchise, relator relies on the following statement contained in State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, loc. cit. 361, 116 S.W. 902, loc. cit. 1013, wherein the Supreme Court, quoting from State ex inf. Hadley v. Delmar Jockey Club, 200 Mo. 34, loc. cit. 71, 98 S.W. 539, loc. cit. 543, said:
"The gist of each [misuser and usurpation] in quo warranto is the willful violation of the rights of the state under the implied contract, and not the violation of some criminal law, for we do not try criminal cases and affix criminal punishments in quo warranto proceedings. The violation of a corporation's contract with the state by misuser or usurpation may be evidenced by the fact of the violation of some statute, criminal in character; but in this kind of proceeding we try the right of the corporation to further hold its franchises, not the question of finding its guilt or innocence under the statute and fixing punishment permitted by the statute. It is the only way the state has of preventing the abuse of the confidences it has reposed in these corporate creatures which are of its own making."
This was an original proceeding in the nature of quo warranto charging that the respondents had formed and entered into a pool, trust, combination or conspiracy in restraint of trade and against the laws of the state, known as the anti-trust statutes. The above quoted statement from the case was made by the court in answer to a contention of the respondents that the statutes under consideration were highly penal and should for that reason be strictly construed. The court held that the proceeding was a civil suit and not a criminal proceeding and that full force and effect should be given to the statutes despite the heavy damages and penalties imposed for their violation. Here again, the court was discussing the nature of the proceeding and the character of judgment that could be entered. Clearly the subject of inquiry in this proceeding was whether or not the respondents had formed and entered into a pool, trust, combination or conspiracy in restraint of trade and in violation of the anti-trust statutes.
Again, in the case of State ex inf. Gentry v. American Can Co., 319 Mo. 456, loc. cit. 472, 4 S.W.2d 448, loc. cit. 455, relator relies on a quotation by the court from State ex inf. Hadley v. Delmar Jockey Club, supra, as follows:
"It is only such acts or omissions as concern matters which are of the essence of the contract between the state and the corporation, or, in other words, in which the public has an interest, that are causes of forfeiture."
We find nothing in this statement to aid relator's contention. This statement holds that it is the acts or omissions committed in violation of the charter provisions that are the subject of inquiry before forfeiture results. While it is true that the corporation's charter is material to the inquiry in the quo warranto proceeding, it is only material insofar as it authorizes or fails to authorize the acts complained of in the information. We agree with respondent herein, that the subject of inquiry is whether the corporation is guilty of acts which constitute the unlicensed and unauthorized practice of the profession of optometry. However, we think it makes little difference in a determination of the jurisdiction of the trial court in the quo warranto proceeding, whether we conclude the subject matter of the quo warranto proceeding to be the corporate charter and franchise or the acts or omissions that constitute the violations of the charter provisions. In either event, we think the Prosecuting Attorney of St. Louis County, Stanley Wallach, had the power to institute the quo warranto proceeding at the relation "of any person desiring to prosecute the same," provided, of course, such person or persons had the requisite interest. As pointed out before, the information in the quo warranto proceeding alleged it was "filed, exhibited and prosecuted pursuant to Sections 531.010 et seq., Revised Statutes of Missouri, 1949 * * *." Section 531.010 RSMo 1949, V.A.M.S., reads as follows:
"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 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 desiring to prosecute the same; and when such information has been filed and proceedings have been commenced, the same shall not be dismissed or discontinued without the consent of the person named therein as the relator; but such relator shall have the right to prosecute the same to final judgment, either by himself or by attorney. If such information be filed or exhibited against any person who has usurped, intruded into or is unlawfully holding or executing the office of judge of any judicial circuit, then it shall be the duty of the attorney general of the state, or circuit or prosecuting attorney of the proper county, to exhibit such information to the circuit court of some county adjoining and outside of such judicial circuit, and nearest to the county in which the person so offending shall reside."
Relator asserts this statute is not applicable when the proceeding seeks to forfeit a charter of a corporation giving it the right to operate throughout the State, and relator seems to hold this is true regardless of what we hold to be the subject matter of the quo warranto proceeding.
In this connection it is the contention of relator herein that the Prosecuting Attorney of St. Louis County is without the requisite legal capacity under Section 531.010 RSMo 1949, V.A.M.S., or otherwise, to act as informant in the quo warranto proceeding or to exercise the necessary discretion on behalf of the State at large in determining whether forfeiture of the corporate charter is in the public interest. Relator's principal premise for this position is that the charter of the corporation is a matter which concerns the State of Missouri, and not merely St. Louis County. It insists that it has the right to do business any place in the State of Missouri, and that the Prosecuting Attorney for St. Louis County is the representative of the State of Missouri only in those actions and proceedings which affect the interest of the State in St. Louis County. It points out that the relief sought is forfeiture of its charter; and, if granted, will affect its right to do business throughout the State of Missouri and that the only official with authority to act as representative for the State at large is the Attorney General.
Before discussing the above statute on which respondent herein relies, we will comment on the authorities submitted by relator herein in support of its contention outlined above. Relator herein cites as his authorities the following cases: State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; State ex rel. Missouri Pacific Railway Co. v. Williams, 221 Mo. 227, 120 S.W. 740; and State ex rel. McKittrick v. Missouri Public Service Commission, 352 Mo. 29, 175 S.W.2d 857. None of these cases were quo warranto proceedings. In the case of State ex rel. Westhues v. Sullivan, the Hon. Henry J. Westhues, who was then Prosecuting Attorney of Cole County, sought to restrain and enjoin defendant Sullivan as Secretary of State, from committing or continuing any act towards accepting and filing the petition ordering the Workmen's Compensation Act to be referred to a vote of the people and sought to restrain and enjoin other acts. The Supreme Court held the action sought to restrain and enjoin the Secretary of State and the Attorney General from performing certain official acts, which acts would be performed at the seat of the state government (in Cole County) and the fact that the acts were to be committed in Cole County did not so localize the real subject matter of the action as to authorize the Prosecuting Attorney to act in the name of the state in that action. They did hold that he had jurisdiction over such matters which concern the state that arise within the territory over which he has control.
State ex rel. Missouri Pacific Railway Co. v. Williams, supra, was an original proceeding in the Supreme Court to obtain a writ of prohibition to prevent the respondent Judge from further entertaining jurisdiction of a certain injunction suit pending in the Circuit Court of the City of St. Louis. The injunction suit was brought in the name of the State of Missouri at the relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis against a number of Railroads seeking to permanently restrain them from putting into effect certain proposed rate increases. The relators in the prohibition proceeding, as respondents in the injunction proceeding, filed in the Circuit Court their motion to annul and vacate a restraining order entered by the trial court upon the filing of the injunction petition and gave as one of the grounds for their motion, that the Circuit Attorney had no authority to institute, prosecute or maintain the suit. Before the trial court ruled on this ground in the motion the prohibition suit was filed, in which the same ground was asserted. In answer to this assertion the Supreme Court, 120 S.W. loc. cit. 746, 749 said:
"* * * It must be kept in view that the proceeding in the circuit court of the city of St. Louis is to obtain an injunction against charging more than two cents a mile by the relators. This is the full scope and effect of the proceedings: * * * In State ex rel. Circuit Attorney v. Saline County Court, 51 Mo. 350, 11 Am.Rep. 454, it was ruled after exhaustive discussion that the Attorney General, and in a proper case the circuit attorney, could institute and prosecute proceedings, in the name of the state, to restrain public and private corporations from exercising powers not granted, and from abuse of those granted, * * * but while the Attorney General may use the name of the state in any county of the state, in a proper case, it by no means follows that the circuit attorney of St. Louis, or a prosecuting attorney, or all prosecuting attorneys may use the name of the state in enjoining or restraining corporate delinquencies or abuses, outside of their respective counties or city, * * *.
"* * * In our opinion the use of the name of the state by the circuit attorney was entirely unauthorized * * *." (Emphases ours.) 120 S.W. loc. cit. 750.
Again, we find an injunction suit and not a quo warranto proceeding brought pursuant to the statute.
State ex rel. McKittrick v. Missouri Public Service Commission, 352 Mo. 29, 175 S.W.2d 857, was an appeal from an action brought by the Attorney General in the Circuit Court to review an order of the Missouri Public Service Commission. In its opinion, the Supreme Court referred to its holding in the Williams case, pointing out that it had prohibited the Circuit Attorney of St. Louis from proceeding with the case, because the scope of the action was state wide. Here again, we are forced to point out this was not a quo warranto proceeding brought pursuant to the statute. In this case the Supreme Court cited the Mississippi case of Capitol Stages, Inc., v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759, as being similar to its holding in the Williams case. That was a case brought by the state on the relation of F. D. Hewitt, District Attorney of the Fourteenth Judicial District of the State of Mississippi, against the Capitol Stages, Inc., and the Pickwick Greyhound Lines, Inc., charging that they were wrongfully and illegally using state highway No. 51 which ran through counties in said Fourteenth Judicial District, to such an extent as to constitute a public nuisance. The bill prayed for an injunction restraining appellants (defendants in the trial court) from so continuing the use of the highway and for a decree against the appellants in the sum of $10,000.00 for damages already done the public by such use. Appellants demurred to the bill on the ground that under the law the state had no right to bring the action on the relation of the District Attorney holding it could be brought and prosecuted alone by the Attorney General. The Supreme Court of Mississippi upheld this contention when it ruled as follows: "As to all litigation, the subject-matter of which is of state-wide interest, the Attorney General alone has the right to represent the state." 128 So. loc. cit. 764.
No statute similar to ours was under review in this case. However, relator herein does cite another decision of the State of Mississippi in which the facts seem to be directly in point. It is the case of Kennington-Saenger Theatres, Inc., v. State of Mississippi ex rel. District Attorney for the Seventh Judicial District, 196 Miss. 841, 18 So.2d 483, 153 A.L.R. 883. It involved a quo warranto proceeding by the State of Mississippi on the relation of the District Attorney for the Seventh Judicial District of Mississippi against Kennington-Saenger Theatres, Inc., for forfeiture and ouster of defendant's franchise and right to do business throughout the state because said corporation was alleged to have violated the laws of Mississippi by exhibiting motion pictures on Sundays. From a judgment cancelling defendant's right and franchise to operate theatres and moving picture shows upon the Sabbath day, an appeal was taken. The majority opinion of the court held: "We are of the opinion that the judgment as rendered was unauthorized for the reason that any action which seeks by quo warranto to forfeit the right and franchise of a corporation to do business throughout the state is one on behalf of the general public of the entire State and could be brought only by the Attorney General, as the chosen representative of the whole people." 18 So.2d loc. cit. 485. In support of its position the court cited Capitol Stages, Inc., v. State ex rel. Hewitt, supra. However, in the Kennington-Saenger Theatres case, two strong dissenting opinions were written, one by the Chief Justice of the court. It should be pointed out that the quo warranto statute of Mississippi is very similar to that of Missouri. The District Attorney in that state is comparable to the Prosecuting Attorney in Missouri. The statute involved contains language to the effect that a quo warranto proceeding could be brought either by the Attorney General or a District Attorney. In the dissenting opinions it was held that the quo warranto statute plainly and unambiguously provides that quo warranto proceedings "shall be by information, in the name of the state, by the attorney-general or a district attorney, on his own motion or on relation of another"; and as the authority there given district attorneys to institute such proceedings is not qualified expressly, or by necessary implication, by any other statute, the court has no right to deprive them of it. The opinions further held that the statute is not open to construction and should be obeyed as written. In one of the dissenting opinions, 18 So.2d loc. cit. 493, it was said:
"Mere reasoning leads to no sound bases for ignoring the plain language of the statute. We should not entertain a suggestion that one or the other incumbent will possess a better judgment or a higher ability, nor that in a given case flagrant violation may be glossed over with expediency or tact and that such a relaxation of official duty would better become the higher official. To lodge such power in either of two officials is a safer guarantee that the laws will be faithfully executed. The prosecutor in any case merely informs the court of the violation * * *. I would record a dissent from the setting up of any jurisdictional frontiers between the powers of the attorney general and the district attorney fashioned haphazardly from the materials of the phrase 'state-wide interest'. No definite cases can be confined within the purported formula. * * * For all the record here reveals, there is but a single defendant who methodically and with the cool deliberation of a contemptuous defiance is flouting the written laws of the state in a single locality. There is no contention that its operations extend beyond the City of Jackson. A criminal prosecution against it could be and was conducted by the district attorney. * * * Is the corporate life of a legal creature, vouchsafed by the grace of the state, of more dignity and sanctity than that of an individual who is a component part of the state? If its directing head is within the district, it may be there punished criminally even though its penalties result in its corporate death. It should enjoy no immunity from civil responsibility when the bases for its ouster are the very crimes for which the district attorney could call it to account." (Emphasis ours.)
In 153 A.L.R. 883, loc. cit. 900, we find the following comment on this case, the "decision is a close question, and excellent reasons for a contrary decision are stated in the dissenting opinion[s]."
These dissenting opinions are in accord with a holding of our Supreme Court in the case State ex inf. Norman v. Ellis, (State ex inf. Norman v. Hall), 325 Mo. 154, loc. cit. 159, 28 S.W.2d 363, loc. cit. 364. In that case the Supreme Court had before it for review and construction the quo warranto statute, now Section 531.010 RSMo 1949, V.A.M.S. The quo warranto proceedings involved were instituted pursuant to the provisions of this section of the statutes. In determining that the prosecuting attorney is invested with the same authority under this section of the statutes as the attorney general, the court said:
"It is first claimed that the prosecuting attorney of a county has no authority to bring a quo warranto proceeding against a person unlawfully holding public office, and that only the Attorney General has such authority. * * * (Citing what is now Section 531.010 RSMo 1949, V.A.M.S.)
"That section ( 531.010) places the prosecuting attorney in exactly the same position as the Attorney General of the state. He 'shall exhibit to the circuit court' of the county where the action is commenced, 'or other court having concurrent jurisdiction therewith in civil cases.'
"If the prosecuting attorney cannot begin such action in the Supreme Court, then the Attorney General cannot, because the two are given exactly the same authority. An action begun in the Supreme Court could not be said to be 'commenced' in any county. The jurisdiction is coextensive with the state." (Emphases and parentheses ours.)
A reading of the above quotation and of the whole case clearly shows that the Supreme Court and the Circuit Court have concurrent jurisdiction of quo warranto proceedings brought under the statute referred to and that the prosecuting attorney is invested with the same authority possessed by the Attorney General and this is true in all cases where the subject matter of the quo warranto proceeding comes within the purview of this statute. In further support of this position is the case of People ex rel. O'Brien, v. Society of Good Neighbors, 327 Mich. 620, 42 N.W.2d 761. The Michigan Judicature Act, after giving authority to the Attorney General to file informations in the nature of a quo warranto, provides that informations "may be filed by the prosecuting attorney of the proper county, on his own relation, or that of any citizen of the county * * *." Comp. Laws 1948, § 638.27. 42 N.W.2d loc. cit. 763. In this case the prosecuting attorney of Wayne County, Michigan, sought to oust and exclude from its corporate rights, privileges and franchises the corporate defendant. The defendant was charged with carrying on a business which by law and under its corporate franchise it was not authorized to do. The defendant corporation filed a motion to dismiss giving as the principal ground therefor, that the prosecuting attorney of Wayne County had no authority to institute the quo warranto proceeding, the attorney general of the state being the only State officer who may question the acts of a corporation and that the statutory authority of the prosecuting attorney to institute and prosecute quo warranto proceedings "does not include actions as in the case at bar." The lower court sustained this contention and the Supreme Court of Michigan in reversing the ruling of the lower court had this to say, 42 N.W.2d loc. cit. 764:
"* * * the legislature expressly empowered the prosecuting attorney of the proper county to institute and prosecute quo warranto proceedings of the character involved in the instant case. When, as in the instant case, it is possible so to do, every pertinent provision of the relevant statute must be given effect."
Relator herein contends that the statutory law of Michigan is in no way comparable to that of Missouri. We do not agree with this contention insofar as the respective laws deal with the powers of prosecuting attorneys and the attorney general in quo warranto proceedings.
We said hereinbefore that the prosecuting attorney at the relation of private parties has the power to bring this action provided the subject matter of the quo warranto proceeding comes within the purview of the quo warranto statute. We find the language of this statute, pertinent to this inquiry, to be, "In case any person shall usurp, * * * any * * * franchise, the * * * prosecuting attorney * * * shall exhibit * * * an information in the nature of a quo warranto * * *."
The word "person" as used in this statute includes a corporation. See Section 1.020 (7) RSMo 1949, V.A.M.S. The word "franchise" as used in this statute includes among other things the rights and privileges conferred upon corporations pursuant to the legislative authority. State ex rel. Wear v. Business Men's Club, 178 Mo. App. 548, 163 S.W. 901; State ex rel. Gentry v. Monarch Transfer Storage Co., 323 Mo. 562, 20 S.W.2d 60; State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527; State ex rel. Allen v. Dawson, 284 Mo. 427, 224 S.W. 824, 825. Any misuse or abuse of these rights and privileges conferred upon a corporation constitutes a usurpation of its franchise, State ex inf. Otto, v. Kansas City College of Medicine and Surgery, 315 Mo. 101, 285 S.W. 980, 46 A.L.R. 1472; State ex rel. Gentry v. Monarch Transfer Storage Co., supra, and would come within the scope of the quo warranto statute.
Proceedings in quo warranto challenging the illegal practice of a profession by a corporation and charging, because of such illegal practice, a usurpation of the corporate franchise, have been instituted in Missouri courts many times. In support of this statement see, State ex inf. Miller, v. St. Louis Union Trust Co., 335 Mo. 845. 74 S.W.2d 348; State ex inf. McKittrick v. Gate City Optical Co. (Sears Roebuck Co.), 339 Mo. 427, 97 S.W.2d 89; State ex rel. McKittrick v. C. S. Dudley Co., 340 Mo. 852, 102 S.W.2d 895; State ex inf. Sager v. Lewin, 128 Mo.App. 149, 106 S.W. 581. Like proceedings have been filed in other states. State v. Borah, 51 Ariz, 318, 76 P.2d 757, 115 A.L.R. 254; State ex rel. Bricker v. Buhl Optical Co., 131 Ohio St. 217, 2 N.E.2d 601; State ex rel. Sisemore v. Standard Optical Co. of Oregon, 182 Or. 452, 188 P.2d 309; State ex rel. Standard Optical, etc., v. Superior Court, 17 Wash.2d 323, 135 P.2d 839. Also see 44 Am.Jur., Sec. 39.
Relator herein points out that the Missouri cases cited were all ex officio proceedings brought under the common law and for this reason are not relevant to an interpretation of our quo warranto statute. The relevancy, as we see it, is in the fact that all these cases charge the illegal practice of a profession to be a usurpation of the corporation's franchise. It is our opinion that any act or conduct by a corporation, whether it be the practice of a profession or something else, not permitted under the law, constitutes a usurpation of its franchise and, therefore, is within the scope of our quo warranto statute.
The next point relied on by relator herein is that relators below in the quo warranto proceeding do not have the requisite special interest in the subject of the proceeding necessary to prosecute the same or to act as relators therein. In this same connection an additional point relied on by relator herein is that the State Board of Optometry does not have the statutory authority to act as a relator in a quo warranto proceeding. We will first determine and answer these questions with regard to the State Board of Optometry.
It can hardly be disputed that optometry has become a real science that has for its purpose the examination of the human eye, without the use of drugs, medicines, or surgery, in order to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises. Section 336.010 RSMo 1949, V.A.M.S. It has become one of the important professions and because of this has received the attention of our legislative body, which has surrounded its practice with certain requirements. Before any one may practice optometry he must possess, in addition to other knowledge, certain technical knowledge and skills and must pass an examination held by the State Board of Optometry on subjects normally taught in approved schools of optometry. An examination of Chapter 336, RSMo 1949, V.A.M.S., dealing with optometrists indicates the importance given to optometry by the legislative body. This is as it should be, for the eye is one of the most delicate organs of the human body. In referring to the practice of dentistry and its importance to the community the Supreme Court of the United States in Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, loc. cit. 612, 55 S.Ct. 570, loc. cit. 572, 79 L.Ed. 1086, said it is:
"* * * not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseeming rivalry which would enlarge the opportunities of the least scrupulous." (Emphasis ours.)
The same may be said about the practice of optometry.
Under Chapter 336, RSMo 1949, V.A.M.S., titled "Optometrists" the State Board of Optometry has the duty to issue, suspend or revoke certificates of registration to practice optometry in this state. Before issuing certificates to practice in this state it must examine all applications and conduct examinations of applicants. Under Section 336.160 RSMo 1949, V.A.M.S., it "may adopt reasonable rules and regulations within the scope and terms of this chapter (Chapter 336) for the proper administration and enforcement thereof. It may employ not more than three inspectors to secure evidence of violations of this chapter or of board rules, and to report such violations to said board and other public officials charged with the enforcement of the provisions of this chapter, * *." (Emphasis and parenthesis ours.) It shall also be the duty of the board "to cause the prosecution of all persons violating its provisions" and "to do all other things necessary to carry out the provisions of this chapter." (Emphasis ours.) Section 336.150 RSMo 1949, V.A.M.S.
We agree with relator herein that no one may act as relator in a quo warranto proceeding under the statute unless he or it has a special interest in the subject of the prosecution. The following cases cited by relator herein fully support this contention. State ex rel. Kempf v. Boal, 46 Mo. 528; State ex rel. Pickett v. Cairns, 305 Mo. 333, 265 S.W. 527; State ex inf. West ex rel. Thompson v. Heffernan, 243 Mo. 442, 148 S.W. 90; State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation of St. Louis, 309 Mo. 587, 274 S.W. 413. As we have said hereinbefore, we hold the subject matter to be the acts or omissions committed in violation of the corporate charter provisions. The special interest required by a relator is a personal or peculiar interest in the subject matter which is distinct from that of the general public. State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation of St. Louis, supra. Relator must have an interest beyond that common to every citizen. Not every citizen may call to account a corporation that has violated its charter provisions by committing some forbidden act or failing to do something required of it. At this point it may be appropriate to pose these questions. Who would have this interest peculiar and special in character, as required under the law, if not the State Board of Optometry? Is not this Board charged with the duty to enforce the laws applicable to the practice of optometry? They have the duty of determining who may practice optometry and we think they have the duty to prevent the unauthorized practice of optometry as well as to revoke the license of those improperly practicing the profession. We think it is apparent from a reading of the statutes under consideration that it was the intention of the legislature to protect the public from any person who might attempt to practice optometry without a license to do so and that the legislature intended that only licensed optometrists practice the profession. To construe the statutes otherwise would render their provisions ineffective. We are of the opinion that the State Board of Optometry had the requisite special interest necessary to maintain the quo warranto proceeding and we so rule.
Relator herein makes the further contention, with respect to the State Board of Optometry, that even if it has the requisite special interest, no statute gives it the right to act as relator in a quo warranto proceeding. It makes the further contention in this same connection that there are no means provided for the recovery of costs against the Board if the quo warranto proceeding was to terminate adversely to such Board.
Not only do we disagree with relator herein that the statute does not give the Board the right to act as relator in the quo warranto proceeding, but we believe the statute creates a duty to bring the proceeding.
The duties of this Board are defined and prescribed by the statutes. It should be observed that such statutes seldom, if ever, define with precise accuracy the full scope of such duties. Generally the duties of a public office or officer include those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office or Board was created, and those which, although incidental and collateral, serve to promote the accomplishments of the principal purposes. 67 C.J.S., Officers, § 110, page 396.
We do not believe it necessary to determine if the State Board of Optometry has the implied authority to bring the quo warranto proceeding. We believe, that while the statute does not spell out the right to bring such a proceeding in specific language, it does contain language that expressly authorizes the quo warranto proceeding. We pointed out hereinbefore that Section 336.150 RSMo 1949. V.A.M.S., prescribed that it shall be the duty of the Board "to cause the prosecution of all persons violating its provisions". Following this in the same statute, after requiring the Board to report annually to the Governor, are these general words, "to do all other things necessary to carry out the provisions of this chapter." (Emphasis ours.)
We are aware of the rule of construction known as "ejusdem generis." Where general words follow the enumeration of particular classes or persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. 82 C.J.S., Statutes, § 332, page 661; State v. Eckhardt, 232 Mo. 49, 133 S.W. 321; State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64. The doctrine of ejusdem generis, however, is only a rule of construction, to be applied as an aid to ascertaining the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. Nor does the doctrine apply where the specific words of the statute embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless. State v. Eckhardt, supra. When the statute required the Board "to cause the prosecution of all persons violating its provisions", it embraced all the objects of that nature and exhausted the class. The genus in this instance included all the species. The prosecution referred to in this statement is under a statute in Chapter 336 RSMo 1949, V.A.M.S., that makes it a misdemeanor for anyone to violate certain provisions of that chapter. There can be only one type of prosecution and that is prosecution for violation of the provisions of Section 336.190 RSMo 1949, V.A.M.S.
In the case of Ex parte Smith, 231 Mo. 111, loc. cit. 119, 132 S.W. 607, loc. cit. 609, the court when discussing the rule of ejusdem generis said: "It is not a cast-iron rule; it does not override all other rules of construction; and it is never applied to defeat the real purpose of the statute as that purpose may be gathered from the whole instrument." It is never to be used to nullify the plain intent of the legislature. We think the language used in the statute demonstrates clearly it was intended to go beyond the class mentioned. The language contained in the statute "to do all other things necessary * * *" when detached and divorced from any specific class mentioned in the statute must be given a broad and general meaning and in our opinion gave to this Board the authority to do any and all things necessary to effectively enforce the laws prescribing who shall practice optometry. There is no doubt in our minds that the statute gave to the Board the authority to bring the quo warranto proceeding. The statute was intended to vest the Board with authority to enforce the provisions of the statutes by whatever lawful means it had at its disposal. We think the statute is too clear to require further comment. Although not contended for by relator herein it might be suggested that the criminal prosecution permitted under the statute would be adequate. We do not believe the statute affords an adequate remedy, because prosecution would not necessarily prevent recurrences of the acts complained of.
The contention of relator herein that there is nothing in the statutes permitting recovery of costs against the Board, in the event of a ruling against said Board, cannot be sustained. While it is true there is nothing in the statutes specifically authorizing the payment of costs, it is likewise true, there is nothing in the statutes suggesting that the Board shall not be subject to the ordinary incidents of litigation. The Board where authorized to bring the suit cannot escape the usual incidents of litigation common to all litigants. Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595. It must pay the costs in the event of an adverse ruling.
We next take up the contention that the individual relators acting for themselves individually and as representatives of other optometrists similarly situated do not have the requisite special interest to act as relators in the quo warranto proceeding. Mindful that the interest required cannot be one common to the public generally we must agree with the contention of relator herein that these individuals do not have the special and peculiar interest necessary to act as relators. They cannot have the same interest we found existing in the State Board of Optometry, for no duty is imposed upon them to enforce the statutes governing the practice of optometry. It is true they are interested in maintaining the integrity of the profession, but, this same interest is shared by all members of the public. We cannot lose sight of the fact that the laws surrounding the practice of optometry have been enacted for the protection of the public. They were never intended to further the private or personal interest of the optometrist, except insofar as their advancement and improvement serves the general purpose of the law. The license to practice optometry conferred on these individuals is a privilege granted by the state and constitutes no authority on the individuals to police the profession. The restrictions surrounding the practice of optometry are not necessarily for the benefit of the practitioner, but, rather for the benefit of society. Clark v. Reardon, 231 Mo. App. 666, 104 S.W.2d 407. If the legislature had intended that any individual licensed to practice optometry could bring an action against one unauthorized to practice, it would have so legislated. In the case of attorneys, the legislature under Section 484.200 RSMo 1949, V.A.M.S., gave to any member of the bar in good standing the right to bring charges against an offending attorney. If the legislature had wanted optometrists to have the same right, it would have legislated accordingly. The fact that the relator herein in its alleged illegal practice of optometry offers competition to the individual relators in the quo warranto proceeding is no ground for creating a special interest. The Supreme Court in a quo warranto proceeding, State ex rel. McAllister v. Cupples Station Light, Heat Power Co., 283 Mo. 115, loc. cit. 159, 223 S.W. 75, loc. cit. 88, in this connection had this to say: "If the question involved was whether respondent was intruding and trespassing upon some particular legal right of its competitor or had no rights because of the alleged superior right of some other person, the action could not be maintained". (Emphasis ours.) We are of the opinion that the individual relators in the quo warranto proceeding had no special interest in the subject matter of the proceeding, and, therefore, had no legal right to act as relators therein, and we so rule.
The last point relied on by relator herein is that the venue in the quo warranto proceeding was not in St. Louis County but was in the City of St. Louis where it has its registered office. Section 508.040 RSMo 1949, V.A.M.S., provides in part as follows: "Suits against corporations shall be commenced either in the county where the cause of action accrued * * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business." (Emphasis ours.) It is conceded that Schneider's Credit Jewelers, Inc., have a store and do business in the County of St. Louis and that the acts complained of took place in St. Louis County. The venue of proceedings in quo warranto is determined in accordance with the rules and consideration governing venue generally. A quo warranto proceeding to oust a corporation from exercising its franchise and powers need not be instituted in the county where the corporation has its registered office, but may be brought in the county where the cause of action accrued. 44 Am.Jur., Sec. 57, p. 128; State ex inf. Otto v. Kansas City College of Medicine and Surgery, 315 Mo. 101, 285 S.W. 980, 46 A.L.R. 1472. We rule the venue was properly laid in the Circuit Court of St. Louis County.
In accordance with the views herein expressed, our preliminary rule heretofore issued is hereby quashed insofar as the respondent's right to proceed with the State Board of Optometry in the quo warranto proceeding is concerned and our preliminary rule is made absolute insofar as the respondent's right to proceed with the individual relators who brought the quo warranto proceeding for themselves individually and as representatives of other optometrists similarly situated is concerned. The motion of relator herein for judgment on the pleadings is ruled in accordance with the order herein made.
BENNICK, P. J., and ANDERSON, J., concur.