State ex Inf. Attorney-General v. Brunk

• Decision Date: 31 December 1930
• Docket Number: No. 30909.,30909.
• Citation: 34 S.W.2d 94
• Parties: THE STATE EX INF. STRATTON SHARTEL, Attorney-General, Petitioner, v. LARRY BRUNK, State Treasurer.
• Court: Missouri Supreme Court

34 S.W.2d 94

THE STATE EX INF. STRATTON SHARTEL, Attorney-General, Petitioner, v. LARRY BRUNK, State Treasurer.

No. 30909.

Supreme Court of Missouri, in Banc.

December 31, 1930.

Quo Warranto.

DISMISSED.

Stratton Shartel, Attorney-General, Edward G. Robison and G.C. Weatherby, Assistant Attorneys-General, for petitioner; Farrington & Curtis of counsel.

(1) Impeachment is a criminal proceeding governed by the rules of criminal procedure. Quo warranto proceedings for the removal of an officer is civil in character. The Constitution makes no provision for the removal of officers except by impeachment. It follows therefore that the way is open to the Legislature to formulate and adopt any reasonable and proper scheme of its own for the removal of officers by civil procedure. Hence, Sec. 13337, R.S. 1919, which provides only for the removal of the State Treasurer by quo warranto, a civil procedure, is not inconsistent with the constitutional method of removal by impeachment. State v. Buckley, 54 Ala. 599; State v. Hastings, 55 N.W. 774; State ex rel. Thompson v. Crump, 183 S.W. 505, L.R.A. 1916D, 951; State ex rel. Timothy v. Howse, 178 S.W. 1110; Territory v. Sanches, 20 Ann. Cas. 112. Section 13337 merely provides a method of removal of the State Treasurer for misconduct in office by civil procedure not counter to any constitutional provision. (2) There is no express provision in the Constitution forbidding the enactment of laws to remove state officers, neither is there any provision from which it may be implied that the Legislature is prohibited from enacting laws for that purpose, unless it is Article 7 of the Constitution providing for impeachment. It appears to be a strained construction of Article 7 to say that it impliedly deprives the Legislature of the power to provide for the removal of a state officer by any method other than impeachment. It is apparent from other provisions of the Constitution that it was not the purpose of the framers thereof to limit the Legislature to the sole method of impeachment in the removal of the State Treasurer and auditor. The framers of the Constitution gave particular attention to the offices of State Treasurer and Auditor, and by Article XV, Section 15, made it the express duty of the General Assembly to pass all laws that might be necessary to carry into full effect all provisions of the Constitution. It was not the purpose to limit the Legislature in the enactment of laws for the protection of the State Treasury, to the removal of the Treasurer by impeachment, but on the contrary to give to the Legislature a free hand in the enactment of any reasonable laws for the protection of the State Treasury against all unlawful incursions. (3) Suspension of an officer is not his removal. The Constitution provides no method for the temporary suspension of any officer for any cause. The Legislature has power to enact laws authorizing the suspension of officers for sufficient cause, and such laws are not unconstitutional. Poe v. State, 10 S.W. 737; Griner v. Thomas, 104 S.W. 1059; State v. Heinmiller, 38 Oh. St. 101; Ex parte Wiley, 54 Ala. 226; Sumpter v. State, 81 Ark. 60; Allen v. State, 32 Ark. 241; State v. Medles, 19 N.M. 252, 142 Pac. 376; State v. Police Commissioners, 16 Mo. App. 50; State ex rel. Brison v. Lingo, 26 Mo. 499; State ex rel. v. Sheppard, 192 Mo. 507. (4) A part of a law may be constitutionally invalid and the remainder of it valid, where the objectionable part may be properly separated from the other, and this is so although the valid and invalid may be contained in the same section. State v. Bockstruck, 136 Mo. 358; State ex inf. v. Washburn, 167 Mo. 697; State ex rel. v. Wright, 251 Mo. 336; State ex rel. v. Gordon, 268 Mo. 736; State v. Fenley, 309 Mo. 528. (5) Quo warranto may be employed to oust an incumbent of an office because of misconduct therein if such misconduct operates as or is a cause of a forfeiture of office, and the Supreme Court has jurisdiction of such cases. Sec. 3, Art. 6, Constitution; Sec. 2066, R.S. 1919; 32 Cyc. 1424, Sec. B; 22 R.C.L. 663, sec. 4; State v. Donahoue, 135 N.W. 1030; Bradford v. Okla., 37 Pac. 1061; State v. Allen, 5 Kan. 213; Commonwealth v. Smail, 85 Atl. 1088; Wells v. State, 94 N.E. 321; Royal v. Thomas, 26 Am. Rep. 335; State ex rel. v. Darnell, 256 Pac. 974; State ex rel. v. Toley, 193 Pac. 361; State ex inf. v. Ellis, 28 S.W. (2d) 363.

John G. Madden and Madden, Freeman & Madden for respondent.

(1) This court is without jurisdiction over the person of this respondent or the subject-matter of this action for the reason that respondent is a constitutional officer, with tenure of office prescribed by the Constitution, and can be removed from office solely by the constitutional method, viz., impeachment, which is exclusive; as a result, the purported suspension of respondent by executive order is void, this proceeding cannot be maintained, and any legislative enactment purporting to authorize such suspension or the institution of such proceeding is unconstitutional and invalid. 1 Cooley's Constitutional Limitations (8 Ed.) 139, 176 n; 22 R.C.L. 561, sec. 265; 23 Am. & Eng. Ency. Law (2 Ed.) 431; 46 C.J. 1002; 29 Cyc. 1414; Throop on Public Officers, sec. 341, p. 343; Mechem on Public Offices & Officers, sec. 467, p. 297; People ex rel. v. Howland, 155 N.Y. 270; People ex rel. v. Supervisors, 155 N.Y. 295; Schieffelin v. Goldsmith, 237 N.Y. Supp. 248; Lowe v. Commonwealth, 3 Metc. 237, 60 Ky. 237; Commonwealth v. Williams, 79 Ky. 42; Speer v. Wood, 128 Ark. 183; Falloon v. Clark, 61 Kan. 121; State ex rel. v. Martin, 87 Kan. 817; State ex rel. La Follette v. Kohler, 228 N.W. 907; Dinan v. Swig, 223 Mass. 516, 112 N.E. 91; Dickson v. Strickland, 114 Tex, 176, 265 S.W. 1012: Attorney-General v. Tufts, 239 Mass. 478, 131 N.E. 574, 17 A.L.R. 274; State ex rel. v. Pritchard, 36 N.J.L. 119; Campbell v. Gilkyson, 75 Atl. (N.J.) 162; Commonwealth v. Gamble, 62 Pa. St. 343; State ex rel. v. Friedley, 21 L.R.A. 634, 135 Ind. 119; People v. Shawver, 222 Pac. (Wyo.) 29; Foster v. Jones, 79 Va. 642; People ex rel. v. Wells, 2 Cal. 198; State v. Gravolet, 123 So. 111, 168 La. 648; State v. Hedrick, 294 Mo. 54; Sec. 13337, R.S. 1919; Article XIV, Sec. 1, Constitution of the United States; Article II, Sec. 30, Constitution of Missouri; Article III, Constitution of Missouri; Article V, Secs. 1 and 2, Constitution of Missouri; Article VII, Secs. 1 and 2, Constitution of Missouri; Article XIV, Secs. 5 and 7, Constitution of Missouri. (2) This court is without jurisdiction over the person of this respondent or over the subject-matter of this proceeding for the reason that this action is not in fact quo warranto, but an action for forfeiture of office; since it is not a proceeding in quo warranto, this court has, under the Constitution, no original jurisdiction. Article VI, Secs. 2 and 3, Constitution; Sec. 13337, R.S. 1919. (a) Under Sec. 13337, R.S. 1919, the official misconduct therein specified does not, ipso facto, work a forfeiture of office; this being true, respondent had not at the time of the filing of the information herein, and has not now, forfeited the title to his office of State Treasurer. State ex rel. v. Dearing, 253 Mo. 604. (b) Quo warranto does not lic unless there has been a forfeiture of title prior to the filing of the information. State ex rel. v. Dearing, 253 Mo. 604; State ex rel. Deering v. Harmon, 98 Atl. 805, 115 Me. 268; High on Extraordinary Legal Remedies (3 Ed.) sec. 618, pp. 574-575; Mechem on Public Offices & Officers, sec. 478, p. 309; State ex rel. v. Wilson, 30 Kan. 661; State ex rel. v. Foster, 32 Kan. 14; McDonough v. Bacon, 143 Ga. 284, 87 S.E. 588; State ex rel. v. Leib, 125 Pac. 601, 17 N.M. 270; State ex rel. v. Hodge, 8 S.W. (2d) 884; People ex rel. v. Taylor, 281 Ill. 355. (c) There having been no such forfeiture, this proceeding, seeking to work such a forfeiture by judicial decree, is not a proceeding in quo warranto, however it may be designated by the Legislature, and hence this court has no original jurisdiction. Wait v. Railroad, 204 Mo. 491; In re Letcher, 269 Mo. 140; 22 R.C.L. 685; Commonwealth v. Williams, 79 Ky. 42.

FRANK, J.

Respondent is State Treasurer of the State of Missouri. This is an original proceeding in quo warranto whereby the State of Missouri, through its Attorney-General, seeks the forfeiture of respondent's office and his removal therefrom.

The proceeding is bottomed on Sections 13290, 13336 and 13337, Revised Statutes 1919, the provisions of which are respectively as follows:

Sec. 13290. "In case of death, resignation, removal from office, impeachment or vacancy from any cause, in the office of either the auditor or treasurer, the governor shall take charge of such office and superintend the business thereof until a successor is appointed, commissioned and qualified, except in case of impeachment, when no appointment shall be made until a determination of the matter is had, when, in the event of an acquittal, the suspended officer shall be reinstated in office."

Sec. 13336. "It shall be the duty of the state treasurer to report to the governor in writing, under oath, on or before the fifth day of every month: First, the amount of money received by him during the previous month; second, the amount paid out during the same period; third, the balances on hand to the credit of the several funds; and fourth, the amount of actual money in his vault on the evening of the last day of the previous month, and on deposit, and in what bank or banks, and the sum in each. The auditor shall in like manner report on the same day: First: the total of all money received by the state from every source; second, the amount of warrants, drawn on the different funds; and third, the balance in the treasury, as shown by his books, on the evening of the last day of the previous month. It shall be the duty of every depository of public money to transmit to the governor,...