State Ex Rel. Jordan v. Mayor of Greenwood

ON SUGGESTION OF ERROR.
Although the opinion heretofore delivered in this case did not in express words so say, it carries the implication, as fully as if said, that we intended to hold and did hold that we would exercise the discretion to consider all the circumstances of a case, in quo warranto, and if on a full view of these circumstances it appeared clear that the public welfare not only would not be promoted, but the reverse would be the result, and that by reason of the lapse of time harm rather than good would result to the public interest, we would decline to interfere in a proceeding in quo warranto designed to "disturb the peace and quiet" of any public or quasi-public corporation, and that the doctrine of laches would be applied in such cases, although not ordinarily applicable in proceedings by the state. In other words, in such a proceeding we would not consent that the principle that no lapse of time runs against the state, a doctrine established to promote the interests of the state and to save it from harm, shall be reversed in its purpose and be so used as to harm the state and the general welfare. The language *Page 876 has often been used in this court that that which is designed as a shield shall not be permitted to be turned into a sword.

It is now earnestly insisted, however, on the suggestion of error that the discretion in this respect is vested by the statute exclusively in the attorney-general or in the district attorney, because under the statute no leave of court is required, as was the case under the ancient practice. There is authority for the view thus urged, but we are of opinion that the better rule is that laid down by the authorities which hold to the contrary and to the effect that "at the hearing or in applying a remedy in quo warranto, the court is possessed of a degree of discretionary power which enables it to take cognizance of laches or delay in instituting proceedings, of the same character as it exercises in granting or refusing the right to file an information. This discretion is employed particularly in cases wherein the information is filed without leave of the court. . . . It has sometimes been said that the courts of this country have come to exercise in the final disposition of quo warranto cases that discretion which was originally only exercised in allowing the information to be filed; and they have come to exercise some discretion where the proceeding is instituted by the state on the information of a state officer." 22 R.C.L. 704, and authorities cited in the notes, and see the notes pages 488-491 in Ann. Cas. 1914C. As said in State v. Mansfield, 99 Mo. App. 146, 72 S.W. 471, 473: "These quo warranto proceedings are now commonly instituted of course, and without leave; and, if there is to be any discretion used about the relief at all, it must be used in delivering judgment. So, too, as the proceeding may be instituted at the relation of any prosecuting attorney, the sanctity which originally attached to it when the information was exhibited by a great officer like the attorney-general of England, or the attorney-general of the United States or of a state, who is supposed to represent in a peculiar degree the prerogative and sovereignty *Page 877 of the state, no longer exists; . . . and at no stage, considering its present characteristics, and the modern practice tolerating the filing of informations as a matter of course, can the discretion be so wisely or justly exercised as after the cause has been heard, and the court is fully advised as to the facts."

Suggestion of error overruled.