State ex inf. Dalton v. Mosley

• Decision Date: 09 January 1956
• Docket Number: No. 43977,43977
• Citation: 365 Mo. 711,286 S.W.2d 721
• Parties: STATE of Missouri ex inf. John M. DALTON, Attorney General, Relator, v. Arthur C. MOSLEY, Respondent.
• Court: Missouri Supreme Court

Page 721

286 S.W.2d 721

365 Mo. 711

STATE of Missouri ex inf. John M. DALTON, Attorney General, Relator, v. Arthur C. MOSLEY, Respondent.

No. 43977.

Supreme Court of Missouri, En Banc.

Jan. 9, 1956.

Rehearing Denied Feb. 13, 1956.

John M. Dalton, Atty. Gen., Robert R. Welborn, Fred L. Howard, Asst. Attys. Gen., for relator.

Walter Wehrle, Clayton, Hyman G. Stein, St. Louis, Herbert W. Ziercher, Clayton, for respondent.

LEEDY, Chief Justice.

This is an original proceeding in quo warranto instituted by the Attorney General against respondent to determine the latter's title to the office claimed by him, that of Sheriff of St. Louis County. The information charges that respondent has been guilty of willful and fraudulent violation and neglect of his official duties, and has knowingly failed and refused to do or perform official acts and duties which by law it was his duty to do or perform with respect to the execution and enforcement of the criminal laws, and by reason of his having been guilty of willful and malicious oppression, partiality, misconduct and abuse of authority in his official capacity and under color of his office as sheriff, respondent has forfeited his said office, and notwithstanding such forfeiture he has unlawfully usurped and continues to hold said office. The relief sought is a determination of the forfeiture, and that respondent be ousted. Hon. William H. Becker of Columbia was appointed as Special Commissioner to hear the evidence, and report his findings of fact and conclusions of law. The duty thus enjoined upon the Special Commissioner was carried out with painstaking care and signal ability, as his comprehensive report attests.

Before the issues were joined respondent, by motion, sought leave to file a plea attacking this court's jurisdiction over the subject matter of the action. The motion was summarily overruled on the theory (although not so stated in the order) that the question sought to be raised was no longer an open one. Notwithstanding this, and as his first point, respondent reasserts such want of jurisdiction, and, being a question that can be raised at any stage of a proceeding, we have examined it anew, and have reached the same conclusion as that which compelled the withholding of leave in the first instance. The present attack is based on the same ground as that formerly sought to be tendered, i. e., that the statutory scheme with respect to forfeiture of office and the removal of incumbents not subject to impeachment, nor within the exception engrafted upon Art. VII, Sec. 4, of the Constitution, V.A.M.S., Sections 106.220 to 106.290 RSMo 1949, V.A.M.S., constitutes an exclusive remedy, and hence this court is deprived of jurisdiction in quo warranto affecting such offices. It was held in State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 119 A.L.R. 710, that these very statutes (then known and numbered as Secs. 11202-11209 RSMo 1929) did not constitute an exclusive remedy, and did not limit the jurisdiction of the Supreme Court in quo warranto, and that the latter would lie to determine the title of a prosecuting attorney (whose office had allegedly been forfeited by reason of misconduct) notwithstanding statutory provisions for the removal of officials for misconduct. The doctrine of the Wymore case was expressly re affirmed in State ex inf. Taylor v. Cumpton, 362 Mo. 199, 209, 240 S.W.2d 877, 883, and in State ex inf. Saunders v. Burgess, 364 Mo. 548, 264 S.W.2d 339, 341.

Respondent contends that these cases are distinguishable from, and, therefore, not controlling in, the case at bar for these reasons: Because the Wymore case was decided prior to the adoption of the present Constitution, and the provision there involved was worded differently from the section of the new Constitution here invoked; and because the other two cases, although decided subsequent to the adoption of our new Constitution, did not consider or pass on the point now urged, which, reduced to its simplest terms, is that the statutory remedy is made exclusive by force of Art. VII, Sec. 4, of the Constitution, reading as follows: 'Except as provided in this constitution, all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law.' Respondent would construe this language as if it read thus (to quote his brief): '[E]xcept 'as provided' in this Constitution, removal actions against officers not subject to impeachment 'shall' be in 'the manner * * * provided by law.'' This interpretation omits consideration of, and renders nugatory, the key words ('subject to') in the declaration that officers affected by said provision 'shall be subject to removal * * * in the manner * * * provided by law.'

The majority opinion in the Wymore case [348 Mo. 98, 119 S.W.2d 944] regarded the text of the constitutional provision there in question (from which Art. VII, Sec. 4, the particular section now under scrutiny, is derived) as reading thus: "The General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty. Laws may be enacted to provide for the removal from office, for cause, of all public officers, not otherwise provided for in this Constitution." Art. XIV, Sec. 7, Const. of 1875, as amended, V.A.M.S. It may be said in passing that the present writer concurred in the result reached by the principal opinion in the Wymore case in a separate concurring opinion, in which concurring opinion two other judges concurred, our view being that all portions of the foregoing section had been eliminated by prior amendment save and except that language which we have italicized above, and hence the question of exclusiveness of the remedy was not in the case. But the prevailing or majority view was otherwise, as above stated, and when so considered--as it should be because settled by that decision--we are unable to discern any real difference in meaning and effect between it and the corresponding section of the present Constitution, Art. VII, Sec. 4, so that as regards the claim of exclusiveness of the statutory remedy, this case stands on the same footing as, and is controlled by the doctrine of, the Wymore case, in consequence of which the jurisdictional question raised by respondent is ruled against him.

Relator relied on ten specific charges, which the Special Commissioner's report summarizes as follows:

'1. The Whiskey 'Hijacking' Charge. This charge concerned the theft and recovery of a truck load of whiskey stolen in St. Louis County in November of 1952 and recovered in the County in December, 1952. The charge in substance was (a) that the Respondent Sheriff was derelict in his duty to investigate the crime and recover the whiskey, and (b) that the Sheriff hampered an investigation of the identity of the thieves and their accomplices by refusing Deputies Burke and Mueller the possession of photographs of suspects for display to prospective witnesses in the field.

'2. The Reward Charge. This was in substance a charge that after recovery of the stolen whiskey, the Respondent Sheriff demanded and received personally a check for a portion of the reward offered by the insurer of the stolen whiskey. It is charged that in so doing the Sheriff violated Section 558.140, RSMo 1949 [V.A.M.S.].

'3. The Charge Concerning the El Avion Shooting and Deputy Nick Burke's Escape. The substance of this charge is that Deputy Sheriff Nicholas Burke shot and wounded Deputy Sheriff William Smith at a party at which the Respondent Sheriff was present; that in violation of his duty to pursue and arrest felons, the Respondent Sheriff failed to make any attempt whatsoever to arrest Deputy Burke at that time; that Deputy Burke was allowed to depart the scene without hindrance.

'4. The Carnival Gambling Charge. This was a charge that in St. Louis County illegal gambling flourished openly at carnivals sponsored by various organizations; that this gambling was notorious and that widespread publicity was given the illegal gambling; that despite the extent, the illegality, and the notoriety, the Respondent Sheriff failed to enforce the gambling laws until after the institution of this action.

'5. The Abortion Case Shakedown Charge. This was a charge that the Respondent Sheriff participated in the arrest of an abortionist and later in the acceptance by one of his deputies of a $1,500.00 bribe from an abortionist to cause the prosecuting witness to leave the County and the prosecution to fail.

'6. Charge of Failure to Enforce the Liquor Control Law [Section 311.010 et seq. RSMo 1949, V.A.M.S.]. The substance of this charge is that the violations of the Liquor Control Act in St. Louis County from 1950 to August 7, 1953, were widespread, open, and notorious, and that the Respondent knowingly and willfully failed to enforce the Liquor Control Law and ordered his deputies if they observed a liquor law violation to take no action but report to the Respondent Sheriff.

'7. The Shamrock Inn Charge. The substance of the charge is that the Respondent Sheriff failed to do his duty to investigate and act on complaints that gambling laws were being violated at the Shamrock Inn and Silver Leaf Bar, located in Breckenridge Hills, a village in St. Louis County.

'8. The 'Big Charlie' and 'Little Charlie' Gambling Charge. This charge is that the Sheriff's office failed to act on complaints of operation of gambling games known as 'Big Charlie' and 'Little Charlie' in three taverns located in University City.

'9. The Drift Inn and Mac's Pool Room Charge. This charge is that the Respondent Sheriff failed to enforce the gambling and liquor laws being violated at a pool room and tavern on North Elm Street in an unincorporated area of St. Louis County.

'10. The Elmwood Park Gambling Charge. This is a charge...