Parker v. Sherman
| Citation | 456 S.W.2d 577 |
| Decision Date | 08 June 1970 |
| Docket Number | No. 2,No. 54471,54471,2 |
| Parties | Merle Eugene PARKER, Appellant, v. Chancery SHERMAN, Respondent |
| Court | Missouri Supreme Court |
Merle Eugene Parker, pro se.
Quentin Haden, Ava, for respondent.
This appeal is by plaintiff, pro se, whose petition was dismissed for failure to state a cause of action. The order of dismissal, although it did not specify whether with or without prejudice, was with prejudice and appealable. Supreme Court Rule 67.03, V.A.M.R., and White v. Sievers, 359 Mo. 145, 221 S.W.2d 118.
Plaintiff's petition alleges that he is a taxpayer of Douglas County; that defendant is the elected sheriff thereof; that during four days of August 1968 the owners and operators of a carnival conducted games of chance openly and publicly at the Douglas County Fair; that defendant knew or should have known it was against the law; that defendant knew or could have found out that people under twenty-one were participating in said games of chance; that defendant did not prohibit the operation of said games or arrest those who were operating same; that defendant was thereby derelict in his duty and did immeasurable harm to the moral tone of the community; and that since he (plaintiff) has substantial investments in Douglas County, he has been damaged in the sum of $25,000 actual and $25,000 punitive damages.
A companion case, involving the same facts, by plaintiff against the owners and operators of the carnival was ruled adversely to him by this Court on November 10, 1969. See Parker v. Lowery et al., Mo.Sup., 446 S.W.2d 593.
In deciding whether the petition states a cause of action, the Court must assume as true all the facts well pleaded therein and give plaintiff the benefit of every favorable inference to be reasonably drawn from the facts pleaded. Martin v. Ficklin, 240 Mo.App. 1225, 227 S.W.2d 69, 76(1--7); Hammond v. City of El Dorado Springs, 362 Mo. 530, 242 S.W.2d 479, 481(1). Applying this rule, the Court holds the trial judge properly dismissed plaintiff's petition because it did not state a cause of action.
Plaintiff alleges gambling devices were used at the Douglas County Fair. Section 563.370, RSMo 1959, V.A.M.S., declares it to be a felony for anyone to keep any gambling device and to induce or entice others to play at any such game or device. We have assumed, for the purpose of this opinion, that the allegation was true. Nevertheless, this statute does not create an individual cause of action. It is a criminal statute, the violation of which is a felony. Its passage was for the benefit of the general public. Ingo v. Koch et al., C.C.A., 2nd Cir., 127 F.2d 667, 677(9); Parker v. Lowery, supra. Furthermore, plaintiff does not show that some special, individual right of his own was violated.
The sheriff, as a conservator of the peace, has the duty to arrest felons. Blackstone, in 1 Com. 343, cites some of the duties of a sheriff:
Our own statute, § 57.100, RSMo 1959, V.A.M.S., makes similar provision. It says: 'Every sheriff shall quell and suppress assaults and batteries, riots, routs, affrays and insurrections; shall apprehend and commit to jail all felons and traitors, and execute all process directed to him by legal authority, including writs of replevin, attachments and final process issued by magistrates.'
A sheriff shall forfeit his office for his failure 'to devote his time to the performance of the duties of such office, or who shall be guilty of any willful or fraudulent violation or neglect of any official duty, or who shall knowingly or willfully fail or refuse to do or perform any official act or duty which by law it is his duty to do or perform with respect to the execution or enforcement of the criminal laws of the state * * *.' Section 106.220, RSMo 1959, V.A.M.S.
The following sections, 106.230 to 106.290, provide that in a civil proceeding, the prosecuting attorney shall file the complaint in the circuit court and judgment can be rendered removing the sheriff (and certain other public officials) from office. The defending sheriff or other official has the right to a trial by jury. Removal by this method is a public proceeding and not by a private individual who believes himself specially injured. It is not, however, the exclusive method used to remove an officer who has forfeited his office for neglect of duty.
The Attorney General can bring an ouster suit in Quo Warranto directly in the Supreme Court. In State on inf. of McKittrick v. Williams, 346 Mo. 1003, En Banc, 144 S.W.2d 98, the Sheriff of Jackson County was ousted from office for failure to enforce the liquor, vice and gambling laws, and in State ex inf. Dalton v. Mosley, 365 Mo. 711, En Banc, 286 S.W.2d 721, the Sheriff of St. Louis County was ousted from office because of a lax policy toward gambling.
In the Williams case, supra, the Court stated, 144 S.W.2d at page 104, that the sheriff had a duty to be alert with respect to possible violations of the criminal laws of the State and must use some diligence in ferreting out crime.
This latter proceeding is also a public prosecution to protect the public interest if an official does not perform the duties imposed upon him by law. Thus, the public is not without remedies.
Plaintiff has cited no cases, nor has this Court found any, which would uphold his theory of liability, which appears to be, that it is his duty to bring the sheriff to account in damages, and to uphold the moral tone of the community. He has not alleged any actionable injury to himself or his property or that the sheriff failed to perform some duty which the sheriff owed to him individually. He cannot invoke the criminal law in an attempt to appoint himself as a guardian of the morals of Douglas County.
In 1856, the Supreme Court of the United States in South v. Maryland, 18 How. 396, 59 U.S. 396, 15 L.Ed. 433, held that plaintiff had failed to state a cause of action against the sheriff where it was...
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