Opinion
No. 28203.
October 16, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Stanley Wallach, Pros. Atty. of St. Louis Co., Clayton, Albert E. Schoenbeck, St. Louis, for appellants.
Meyer Blocher, St. Louis, Kerth Schrieber, Clayton (Joseph Nessenfeld, St. Louis, of counsel), for respondent.
This action was brought at the relation of the Missouri Optometric Association, which is an association of optometrists incorporated under the laws relating to benevolent, religious, scientific, fraternal, educational and miscellaneous associations. The Schneider's Credit Jewelers, Inc. was charged by information in quo warranto with the illegal practice of optometry and the relator sought to have the respondent's corporate charter forfeited. Upon the return date the respondent filed a motion for a bill of particulars, which was sustained in part, and the relator filed an amended information. After the filing of the amended information a motion by respondent to dismiss was sustained. One of the grounds upon which it was sustained was that the relator was not a real party in interest. After the cause was dismissed the relator moved to set aside the dismissal stating, "additional facts can now be pleaded, which, together with those already pleaded, will be sufficient", and further stating, "certain new parties desire to enter such cause of action as relators; that said new parties are proper parties having a real interest in the subject matter of this action."
Before the motion to set aside the dismissal was acted upon by the court, a motion to intervene as relators was filed by five optometrists who engage in the practice of their profession in the county of St. Louis. They sought to intervene on their own behalf and on behalf of other optometrists practicing in the county and City of St. Louis. At the same time the members of the State Board of Optometry also petitioned to intervene "as members of and constituting and comprising the Missouri Board of Optometry."
All motions to intervene and the motion to set aside the dismissal were overruled by the court. The relator and those who sought to intervene have appealed.
The fact that the members of the State Board of Optometry are state officers gives rise to a question of our jurisdiction in this case, since, under the Constitution of Missouri, Article V, Section 3, the Supreme Court has exclusive appellate jurisdiction where any state officer is a party to the case sought to be appealed. It has been established, however, that where a legal entity or quasi public corporation is the real party, the fact that its component members are named as parties does not vest the Supreme Court with jurisdiction, even though such members are state officers. Thus in State ex rel. Gehrs v. Public Service Commission of Missouri, 338 Mo. 177, 90 S.W.2d 390, it was held that though the commissioners, who were named as parties, were state officers, the commission was the only necessary and proper party to the action because it existed as an entity, distinct and apart from its members.
The same is true of the Board of Optometry. Missouri Revised Statutes of 1949, Section 336.130, provides that it shall adopt a seal, make rules and regulations to govern its proceedings, and issue certificates to be signed by its president and secretary. This makes it a legal entity in the nature of a quasi public corporation. Parker v. Unemployment Compensation Commission, 358 Mo. 365, 214 S.W.2d 529; Trianon Hotel Co. v. Keitel, 350 Mo. 1041, 169 S.W.2d 891. We therefore have jurisdiction of this appeal, for it was the obvious intention of the board to take official action, which could only be done by the board as such, and consequently no state officer was, or actually sought to be made, a party to the action.
The first question for determination is whether or not the court properly dismissed the action in quo warranto. As stated, one of the grounds upon which it was dismissed was that it was not brought by a real party in interest. The appellants assert that the action may be brought by any one regardless of his interest in the subject and the real party exhibiting the information is the State of Missouri. For the latter contention, appellants rely upon two cases. One of these is State ex inf. Ellis v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97, in which the court held that the State was the real party. But in that case it appeared that the action was in fact prosecuted by the prosecuting attorney ex officio and a statement in the information that it was brought at the relation of a private party was regarded as surplusage. The second case relied upon is State on inf. of Wallach ex rel. H. B. Deal Co. v. Stanwood, Mo.App., 208 S.W.2d 291, decided by this court. In that case the point was not raised. The language upon which the appellants rely was meant to indicate that the relator had no greater rights as such than the State would have had if its officers acted in their official capacity.
It is true that the State is the informant when it acts through its officers ex officio, but when quo warranto is brought at the relation of private parties neither the State nor the prosecuting attorney are real parties to the action. The prosecutor has no control over the case and is the mere instrumentality through which the action is started. State ex rel. Perkins v. Long, 275 Mo. 169, 204, S.W. 914; State ex inf. Otto ex rel. Bales v. Hyde, 317 Mo. 714, 296 S.W. 775; State ex rel. Handlan v. Wilkie Land Co., 349 Mo. 666, 162 S.W.2d 846.
As to the contention that quo warranto may be brought at the relation of any person regardless of his interest, the appellants rely upon Missouri Revised Statutes 190. Section 531.010, which states that an information in the nature of quo warrant may be brought "at the relation of any person desiring to prosecute the same". This statute has been construed many times. In State ex rel. Kempf v. Boal, 46 Mo. 528, the Court said: "The enactment that information of this character may be exhibited `at the relation of any person desiring to prosecute the same,' means any person having an interest in the subject of the prosecution." It was later stated by Judge Ragland, speaking for the court en banc, in State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation of St. Louis, 309 Mo. 587, 274 S.W. 413, 415: "In order for private relators to maintain such an action as this it is necessary for them to allege and prove that they have an interest in the subject of the prosecution peculiar to them as distinguished from that of the general public."
Since it is apparent that the only real party to the information filed is the Missouri Optometric Association, we move to a consideration of whether or not it had the required interest in the subject of the prosecution. The amended information alleges: "Relator, being a voluntary association of optometrists duly licensed individually to practice optometry in Missouri, has a special interest in seeing that only duly licensed persons practice of optometry in this State and in protecting public health against the illegal and unauthorized practice of optometry by a corporation or layman."
The information had a preceding allegation that the association was incorporated, so we disregard any suggestion to the contrary that the words "voluntary association" might convey. It was a legal entity. But its alleged interest in seeing that only duly licensed persons practice optometry for the protection of the public is an interest shared by the public at large. A practitioner of optometry might have a special interest in stopping the invasion of his filed of endeavor by unlicensed persons, but the association does not practice optometry. It stands on the same footing as a private individual who desires to see the law enforced, but without any private rights or interests which are affected in any way by the alleged conduct of the respondent.
Nor can we construe this to be a class action because it is not so pleaded, and for the further reason that such actions like all others must be brought by a party in interest and for others so situated. Sec. 531.010. R.S.Mo. 1949. As stated in Missouri Veterinary Medical Association v. Glisan, Mo.App., 230 S.W.2d 169, 172: "No matter how solicitous the plaintiff may be of the rights of its members it cannot by reason of its design or desire to help them sue in its own name to enforce their rights."
It follows that the association has failed to allege that it had any interest in the manner in which the respondent exercises its corporate franchise other than the interest common to the general public, and it is not entitled to maintain this action. State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation of St. Louis, 309 Mo. 587, 274 S.W. 413. For the reasons stated, the court properly dismissed the information.
The next point urged is that the court erred in not setting aside the dismissal upon the relator's motion. The motion stated that new parties desired to enter the cause of action as relators and that the new parties were proper parties having real interests in the subject matter. When the court dismissed the information because but failed to allege that the relator had any real interest in the subject matter, it entered an adjudication upon the merits as well as a dismissal with prejudice. It was a final judgment. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Coyne v. Southwestern Bell Telephone Co., 360 Mo. 991, 232 S.W.2d 377. Such a judgment could have been set aside upon the motion of the relator to permit the filing of an amended information, but it was evident that the relator could state no cause of action. The fact that others not a party to the suit could have stated a cause of action and sought to do so after final adjudication was no ground upon which the motion should have been sustained. Missouri Revised Statutes 1949, Section 507.090, provides for intervention "upon timely application", and the applications filed here, after final judgment, were in no sense timely.
For the reasons stated, it is the recommendation of the Commissioner that the judgment of the trial court be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
BENNICK, P. J., and ANDERSON, J., concur.
RUDDY, J., not sitting because not a member of the court at the time of argument and submission.