State ex inf. Danforth v. Orton, 55364

• Citation: 465 S.W.2d 618
• Decision Date: 08 March 1971
• Docket Number: No. 55364,55364
• Parties: STATE of Missouri ex inf. John C. DANFORTH, Attorney General, Relator, v. Clyde ORTON, Respondent.
• Court: United States State Supreme Court of Missouri

Page 618

465 S.W.2d 618

STATE of Missouri ex inf. John C. DANFORTH, Attorney General, Relator, v. Clyde ORTON, Respondent.

No. 55364.

Supreme Court of Missouri, En Banc.

March 8, 1971.

As Modified on Court's Own Motion April 12, 1971.

Motion to Modify or Supplement Mandate Denied April 12, 1971.

Motion to Stay Judgment and Order of Ouster Denied April 13, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles E. Rendlen, Jr., Special Asst. Atty. Gen., Hannibal, Dale L. Rollings, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for relator.

James E. Reeves, Ward & Reeves, Caruthersville, for respondent.

HOLMAN, Judge.

Original proceeding in quo warranto commenced on January 16, 1970, upon the filing of an information by the Attorney General by which he seeks to oust respondent from the office of Sheriff of Pemiscot County. The information charged respondent with misconduct and neglect of duty in a number of respects hereinafter discussed. We appointed Hon. Ray Weightman as Special Commissioner to hear the evidence and report his findings of fact and conclusions of law. Judge Weightman held extensive hearings and has filed here a report in which he found that respondent had violated his duties in a number of respects and, by reason of such misconcuct, had forfeited his office and should be ousted.

The first point raised by respondent is that 'the court is without jurisdiction to hear this quo warranto proceedings because Art. VII, § 4, Constitution of Missouri (V.A.M.S.), and § 106.220 et seq., RSMo, vests exclusive jurisdiction in the circuit court to hear such actions.' He recognizes, of course, that Art. V, § 4, Mo.Cons.1945, vests this court with jurisdiction to 'issue and determine original remedial writs' and that quo warranto is such a writ. He contends, however, that the broad power thus bestowed is restricted as it relates to removal proceedings by the provisions of § 4, Art. VII, 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,' and that, in accordance with said section, the legislature has enacted § 106.220 et seq. ¹ which provide grounds and procedure for removal of county officers in a circuit court action, and he asserts that such procedure is exclusive.

The precise point now before us was ruled adversely to the respondent's contention in the case of State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941. In Wymore (a proceeding to remove a prosecuting attorney), under a somewhat similar constitutional provision, it was held that this court had jurisidiction to issue, hear, and determine writs of quo warranto and that statutory enactments (the predecessors of § 106.220 et seq.), also providing a method for removing officers, were not exclusive and did not interfere with the jurisdiction of this court. The question was raised again and the holding of Wymore was reaffirmed in State ex inf. Taylor v. Cumpton, 362 Mo. 199, 240 S.W.2d 877. Another attack was made on our jurisdiction, upon the same grounds, in State ex inf. Dalton v. Mosley, 365 Mo. 711, 286 S.W.2d 721, a proceeding to remove a sheriff. In Mosley it was contended that the prior cases were not controlling because of the new (present) constitutional provision adopted in 1945. In ruling the contention adversely to respondent this court stated: '(W)e are unable to discern any real difference in meaning and effect between it (the predecessor constitutional section) and the corresponding section of the present Constitution, Art. VII, § 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.' 286 S.W.2d l.c. 723.

Recognizing that if we follow Wymore and Mosley he cannot prevail on this point, respondent contends that those cases were incorrectly decided and should be overruled. Our view is that the question before us was settled, under both constitutional provisions, by the Wymore and Mosley decisions and should no longer be considered to be an open question. We have, nevertheless, reviewed both cases and consider that they were soundly dedided and that they are controlling her. The jurisdictional question is therefore decided adversely to respondent.

Our learned Special Commissioner has filed a 43-page report in which he discusses the evidence in detail and arrives at certain conclusions of fact and law. He found against respondent on some eleven charges, in favor of respondent on three charges, and considered it unnecessary to make findings on a number of others. We will confine our discussion to those charges which were found by the Commissioner to warrant forfeiture and ouster. The question arises as to the weight and effect to be given the findings and conclusions of the Commissioner. We have stated that "the findings fact of a special commissioner are not binding, but are persuasive (State ex inf. v. Arkansas Lumber Oc., 260 Mo. 212, 169 S.W. 145), or, as said in State ex inf. v. Kansas City College of Medicine & Surgery, 315 Mo. 101, 285 S.W. 980, 983, 46 A.L.R. 1472, 'the conclusions of the commissioner are not binding on this court, but they are advisory and helpful." (In re Parkinson, 344 Mo. 715,) 128 S.W.2d (1023) 1037. We conclude that it is our duty to make a full and complete review of the testimony and to reach our own conclusions as to the law and facts. We may, however, consider the persuasive effect of the commissioner's findings and, if we see fit, defer to his findings of fact based upon conflicting testimony.' State on inf. Eagleton v. Stupp Bros. Bridge & Iron Co., Mo.Sup., 380 S.W.2d 382, 394. We have read this transcript (consisting of more than 1,500 pages) and have made our own findings which are substantially the same as those reported by the Commissioner.

Respondent was first elected to the office of sheriff for a four-year term beginning January 1, 1957. He has served continuously since that date, his latest term beginning January 1, 1969. A number of the items of alleged misconduct occurred during previous terms and respondent contends that such items may not be considered as grounds for ouster. This question has never been decided in this state. It arose in State on inf. McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 91, and in Mosley, supra, but in each case the court found a decision unnecessary and the question was reserved. Annotations in 17 A.L.R. 279, and 138 A.L.R. 753, indicate that the decisions in other states are about equally divided on the issue. We have decided to again reserve the question since we are of the opinion that matters occurring during respondent's current term are sufficient to warrant a decision that respondent has forfeited his office. We hasten to add, however, that evidence of neglect of duty and misconduct during previous terms is admissible and may be considered (1) to the extent that such shows law violations which were still subject to prosecution during the current term, (2) because the showing of a state of facts during prior terms may be considered, the contrary not appearing, as have continued into the current term, and (3) as bearing on respondent's opportunity for knowledge of the conditions and indicating his attitude toward law enforcement. See Graves and Mosley, supra.

Respondent contends that at least a portion of the allegations are barred by statutes of limitation, citing §§ 516.130 and 541.210. While we are inclined to doubt that those statutes would apply to a quo warranto proceeding for removal of an official, our decision to limit causes for ouster to matters occurring during the current term makes it unnecessary to decide the question.

It is also respondent's contention that this proceeding is barred by laches. He cites State on inf. Eagleton v. Champ, Mo.Sup., 393 S.W.2d 516, a quo warranto proceeding attacking the validity of the incorporation of a village, which obviously has no application to a case such as the instant one. We hold that laches will not be permitted to bar a proceeding instituted by the State or its Attorney General to oust an official for neglect or misconduct. The nature of the proceeding and the inherent public interest preclude the application of that doctrine.

We will next consider the evidence relating to various charges. Pemiscot County is located in the extreme southeast corner of Missouri. Tennessee is just across the Mississippi River, and it is not far to the states of Mississippi and Alabama. It appears from the evidence that large quantities of whiskey had been transported from Caruthersville to dry counties (under local option) in those three states. For example, an officer from Florence, Alabama, testified they would seize about one load of whiskey a week (one load mentioned contained 33 cases) and that 90% of it came from the Delta Distributing Company of Caruthersville.

INCIDENT INVOLVING MISSISSIPPI OFFICERS: In September 1969 five Alcohol Control Agents from Mississippi were sent to Caruthersville to investigate the source of Missouri whiskey coming into their state. They started watching the rear of Eddie & Jay's Bar (of which Eddie Chilton was part owner), and the Climax Bar located next door. They saw whiskey from the Climax Bar being loaded into the trunk of a car. After the car was loaded the Missouri license plate was removed and a Mississippi tag was placed on the car. The officers followed the car but at a point in Tennessee the driver evidently discovered that she was being followed and stopped the car. She was arrested by a local sheriff and 29 cases of whiskey were confiscated. The next day the officers resumed their watch on the Bars in Caruthersville and, within a short time, a car arrived,...