On Motion for Rehearing
PER CURIAM.In his motion for rehearing, respondent contends that we erred in deciding this case on the basis of the power and authority of a prosecuting attorney to file quo warranto proceedings at the relation of a third party, rather than on the basis that the State Board of Optometry has state wide jurisdiction and, as relator, was the real party in interest, consequently the prosecuting attorney could bring the proceedings on behalf of such a relator. The qualifications of a relator do not fix the powers and jurisdiction of a prosecuting attorney; that is done by statute and court decisions. It is true Section 531.010 provides that when a prosecuting attorney or the attorney general files an information in quo warranto at the relation of another, and the proceedings have commenced, he may not dismiss the information without the consent of the relator. However, that does not settle the question whether the prosecuting attorney had jurisdiction to file the information in the first instance. He must have that authority before he may proceed at the relation of anyone.
The scope of the authority, rights and duty of the attorney general or a prosecuting attorney and a qualified relator under said section are clearly stated in State ex inf. Dorain ex rel. Black v. Taylor, 208 Mo. 442, 106 S.W. 1023. We said in 208 Mo. 451-452, 106 S.W. 1026: “Now observe our statute [now Sec. 531.010] charges the Attorney General of the state and the prosecuting attorneys of the respective counties with the duty of speaking in the name of this sovereign commonwealth, ‘in case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise.’ In such case, in matters of initiative they wield the bolt forged by the law. No other hand may. They stand charged with the duty of exhibiting to the court an information in the nature of quo warranto, at the relation of any person desiring to prosecute the same. When such information has been once filed and proceedings commenced in *297a circuit court at the relation of such person, such prosecuting attorney or Attorney General steps down from the exclusive stool of duty and responsibility, and, seating himself on a lower and more humble bench of power shared jointly with relator, he may not thereafter dismiss or discontinue such proceeding without his consent. * * So much appears from that statute, and the case may proceed with the assumption that the power and duty of the prosecuting attorney to alone use the name of the state in quo warranto come down unimpaired, in full flower, until such time as the information is exhibited, filed, and the proceeding commenced; and, with that point once reached, the relator thenceforward (hut not before) shares with him the control and disposition of the litigation.” (Italics supplied.)
This rule is not inconsistent with anything said in State ex inf. Otto ex rel. Bales v. Hyde, 317 Mo. 714, 296 S.W. 775, or any of the other cases cited by respondent.
We repeat: The authority and jurisdiction of a prosecuting attorney to file quo warranto is fixed by the law of Missouri and not by the qualifications of a relator.
Respondent also asserts that the Supreme Court of Miss., in Kennington-Saenger Theaters, Inc., v. State ex rel, supra, was not considering a special quo war-ranto statute. A careful -study of the opinion shows otherwise. The statute which caused a division in the court is now Section 1121, Miss. Code 1942, under title “quo warranto” and provides: “The proceedings in such cases [quo warranto] 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, * * (Italics supplied). Other statutes were discussed, but the fundamental question at issue was the authority and jurisdiction of the district attorney (prosecuting attorney) to file the information.
The motion for rehearing is overruled.