The State ex rel. Jones v. Wurdeman

• Citation: 274 S.W. 407,309 Mo. 408
• Decision Date: 03 July 1925
• Docket Number: 25789
• Parties: THE STATE ex rel. ADAM HENRY JONES v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

274 S.W. 407

309 Mo. 408

THE STATE ex rel. ADAM HENRY JONES v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court

No. 25789

Supreme Court of Missouri

July 3, 1925

Preliminary rule made absolute.

Harvey & Baer for relator.

(1) Relator cannot be removed from his office of prosecuting attorney for official misconduct except for the reasons and in the manner pointed out by Secs. 9175, 9176, 9177, 9178 9179, 9180, 9181, R. S. 1919. And only by virtue of the provisions of these sections may an officer be removed. State ex rel. Flowers v. Birkhead, 256 Mo. 683. Even if affidavits had been filed against relator he could not be removed from office until found guilty of the offense set up in such affidavit. Sec. 9180, R. S. 1919. The only power in the court upon the filing of the affidavit required by the statutes is to appoint a "special prosecutor, who shall have power and authority to file a complaint against said prosecuting attorney." Sec. 9177, R. S. 1919. Respondent undertook by a judgment entered of record to remove relator from office and appoint a temporary prosecuting attorney with power to perform all of the duties of the office to which relator was elected. (2) If the prosecuting attorney and assistant prosecuting attorney be interested in any case "The court may appoint some other attorney to prosecute or defend the cause." Sec. 742, R. S. 1919. The judgment of the court appointing "a temporary prosecuting attorney with authority to discharge in full the office he temporarily fills" is void, because the court does not limit his appointment to any particular cause or inquiry. Sec. 742, R. S. 1919. (3) The recital in the judgment ousting relator that he is "personally interested in certain inquiries to be made by the grand jury this day impaneled," was insufficient to confer jurisdiction in the court to oust relator or even to appoint a special prosecutor, because no facts are averred in said judgment showing the interest of relator. This court has the power to determine whether the appointment was within the power of the circuit court. State ex rel. Keck v. Seibert, 130 Mo. 202. (4) The provisions of Sec. 742, R. S. 1919 requiring that both the prosecuting attorney and assistant prosecuting attorney be interested before the appointment of another attorney is authorized, even to prosecute a given cause, is exclusive, and the court had no inherent power to do so, for such power yields to reasonable legislative restraint. State ex rel. Selleck v. Reynolds, 252 Mo. 369; Ex parte Creasy, 243 Mo. 708; Jones v. Sanderson, 287 Mo. 176; Railroad v. Gildersleeve, 219 Mo. 200. (5) Where power to remove an officer requires notice and hearing, any attempted removal without such notice and hearing is void. State ex rel. Denison v. St. Louis, 90 Mo. 19; State ex rel. Mosconi v. Maroney, 191 Mo. 531; State ex rel. Barker v. Crandall, 269 Mo. 44.

Blair, J. All concur, except Atwood, J., not sitting.

OPINION

BLAIR

This is an original proceeding in prohibition by relator, as Prosecuting Attorney of St. Louis County, against respondent, as judge of the circuit court of said county, to prohibit respondent from enforcing an order made by him as judge of said court on September 18, 1924, appointing Wayne Ely as temporary prosecuting attorney of said county. Our preliminary rule issued, respondent has filed his return, and relator has moved for judgment upon such return. Relator has briefed the case, but respondent has not so favored us.

The petition alleged the official positions of relator and respondent and that relator's term of office would not expire until December 31, 1924; that Wilfred Jones was assistant prosecuting attorney of said county; that on September 18, 1924, respondent, as such judge and without notice to relator, unlawfully and without authority of law undertook to remove and oust relator from his office of prosecuting attorney and to appoint said Wayne Ely to perform the duties of said office. A copy of respondent's said order was attached to said petition and reads as follows:

"The prosecuting attorney of this county being personally interested in certain inquiries to be made by the grand jury, this day impaneled, the court doth appoint Wayne Ely, Esq., a qualified attorney at law of Webster Groves, as temporary prosecuting attorney, with full authority to discharge in full the office he temporarily fills. Oath of said temporary prosecuting attorney filed."

It is then alleged that relator demanded of respondent the right to be heard before said order was entered and was refused such opportunity; that no charge of crime had been made against relator in any court, nor any charge that relator had been guilty of any violation of law or neglect of duty as prosecuting attorney; that relator was not interested in nor employed as counsel in any case inconsistent with his duty as prosecuting attorney and was not related by blood or marriage to the defendant in any criminal case. The want of power and jurisdiction of respondent to make said order was then charged, and our preliminary rule in prohibition prayed.

Our preliminary rule issued requiring respondent to show cause why our absolute rule should not issue prohibiting him from enforcing his said order of September 18, 1924, and commanding respondent to take no further action until further order of this court. To said rule was attached a copy of relator's petition.

The return of respondent admitted the official positions of relator and respondent. It was alleged that respondent had charged the grand jury then in session as follows:

"Affidavits have been presented to me involving the integrity and effectiveness, as an officer, of our Prosecuting Attorney. It is charged that he has received weekly sums from proprietors of soft-drink parlors for immunity from prosecution; that the owner of the slot machines in operation over the county has also paid him considerable sums. There are persistent rumors and charges that he has been in constant conference with the heads of the criminal gangs heretofore mentioned; that they have subscribed freely to his campaign fund as a candidate for re-election and have wrongfully influenced him in the performance of the duties of his office. These rumors are so persistent and definite that, in justice to the proper administration of the law, and to the Prosecuting Attorney himself, an inquiry must be made by you as to these charges and other charges of corruption, and I have no doubt that he will aid you and the temporary prosecuting attorney hereafter named in every way possible.

"The Prosecuting Attorney being personally interested in the inquiry that you will make in respect to the matters and things heretofore mentioned, I have appointed Wayne Ely, Esq., attorney at law, of Webster Groves, as temporary prosecuting attorney, with full authority to discharge in every way the office he temporarily fills."

Thereupon respondent caused to be made the order heretofore set out appointing Wayne Ely as temporary prosecuting attorney. Said return then proceeds:

"Respondent further avers that such order was made in pursuance to the inherent power conferred in this respondent as...