State ex Inf. McKittrick v. Wiley, 37532.

Decision Date26 February 1942
Docket NumberNo. 37532.,37532.
PartiesSTATE OF MISSOURI on the information of ROY McKITTRICK, Attorney General, Relator, v. MAX R. WILEY and WILLIAM M. BARBIERI, each purporting to act as Prosecuting Attorney of DeKalb County.
CourtMissouri Supreme Court
160 S.W.2d 677
STATE OF MISSOURI on the information of ROY McKITTRICK, Attorney General, Relator,
v.
MAX R. WILEY and WILLIAM M. BARBIERI, each purporting to act as Prosecuting Attorney of DeKalb County.
No. 37532.
Supreme Court of Missouri.
Division One, February 26, 1942.
Rehearing Denied, April 16, 1942.

[160 S.W.2d 679]

Quo Warranto.

RESPONDENT WILEY OUSTED, AND PROCEEDING CONTINUED AGAINST RESPONDENT BARBIERI WITH LEAVE TO RELATOR TO AMEND.

J. Francis O'Sullivan for respondent Barbieri; John M.P. Miller and Phillip M. Wilson of counsel.

(1) The commissioner's report and findings sustain respondent Barbieri in his refusal to relinquish the office of prosecuting attorney of DeKalb County to respondent Wiley because Wiley was not a resident of DeKalb County for twelve months preceding his election. Sec. 11309, R.S. 1929; Mullery v. McCann, 95 Mo. 579, 8 S.W. 774; State ex rel. v. Newman, 91 Mo. 445, 3 S.W. 849; State v. Williams, 99 Mo. 291, 12 S.W. 905; State ex rel. v. Roach, 248 Mo. 56, 150 S.W. 1073; State ex rel. v. Patton, 131 Mo. App. 628, 110 S.W. 636; State ex rel. v. Meek, 129 Mo. 431, 31 S.W. 913; 46 C.J. 938, sec. 36; Finley v. Finley, 6 S.W. (2d) 1006; Scoville v. Glasner, 79 Mo. 449. (2) Respondent Barbieri is entitled to retain the office of prosecuting attorney of DeKalb County until a duly qualified successor is elected and qualified. Mo. Constitution, Art. XIV, Sec. 5; Sec. 11309, R.S. 1929; State v. Smith, 87 Mo. l.c. 160; Savings Bank v. Hunt, 72 Mo. l.c. 601; State v. Ranson, 73 Mo. l.c. 95, 50 L.R.A. (N.S.) 365; Jenness v. Clare, 21 N.D. 151; Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302. (3) The only issues triable are those made by the information filed by the Attorney General. State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. McCam, 81 Mo. 497; State v. Rose, 84 Mo. 198; State ex rel. v. Stafford, 97 Mont. 275, 34 Pac. (2d) 372; High on Extraordinary Legal Remedies (3 Ed.), secs. 712, 718; State ex rel. Harris v. McCann, 88 Mo. 386; State ex rel. v. Powles, 136 Mo. 376, 37 S.W. 1124; State ex rel. v. Lund, 167 Mo. 228, 66 S.W. 1062; Sec. 1782, R.S. 1939; State ex inf. v. Taylor, 208 Mo. 442, 106 S.W. 1023; State ex rel. v. Equitable Loan Co., 142 Mo. 325, 41 S.W. 916; State ex rel. v. Talty, 166 Mo. 529, 66 S.W. 361; State ex rel. v. O'Hern, 149 S.W. (2d) 914; State ex rel. v. Townsley, 56 Mo. 107; Greening ex rel. v. Barnes, 335 Ill. 99, 188 N.E. 805; People ex rel. v. Miles, 2 Mich. 349; People ex rel. v. Abbott, 16 Cal. 358; People v. Forhan, 34 Colo. 304, 86 Pac. 252; Lake v. State of Florida, 18 Fla. 501; Clark v. People, 15 Ill. 213; Edelstein v. Fraser, 56 N.J.L. 3. (4) Relator's motion to strike should have been sustained. State ex rel. v. Vail, 53 Mo. l.c. 105; Cases cited under Point (3). (5) The overruling of relator's motion to strike is not res adjudicata as to respondent Barbieri. Ewing v. Vernon County, 116 S.W. 518; Union Brewing Co. v. Ehlhardt, 120 S.W. 1193; Rolleg v. Lofton, 230 S.W. 330; Schaffran v. Mt. Vernon-Woodbury Mills, 70 Fed. (2d) 963; Sourino v. United States, 86 Fed. (2d) 309. (6) Respondent Wiley's Exhibits 6 to 10 were not competent or relevant evidence and were improperly admitted. There is no evidence from which respondent Wiley can justify the charges made against respondent Barbieri. 22 C.J. 1034, sec. 1323; City of Macon v. Fid. & Dep. Co., 189 S.W. 645.

John J. Robison, Harold Miller and Frank Pulley for respondent Wiley.

(1) Commissioner erred in admission of testimony showing silence on part of respondent Wiley to questions by stranger to controversy, Carl Smith. 22 C.J., sec. 361, p. 325; 20 Am. Jur., sec. 567, p. 480. (2) Commissioner erred in permitting respondent Barbieri to introduce Exhibit 4, being report of bar fees, as and for showing residence. Rule 37, Supreme Court of Missouri, Costs and Fees, sec. 1. (3) Commissioner erred in permitting respondent Barbieri to introduce Exhibit 4, being affidavit under Corrupt Practice Act, filed in Johnson County, Missouri, on December 6, 1938. Sec. 11790, R.S. 1939. (4) Commission erred as to the introduction of Exhibits 9, 8, 7, 6A, being notary commission issued to respondent Wiley, and he acting as notary in Clinton County, Missouri. Sec. 13360, R.S. 1939. (5) Commissioner erred in the exclusion of competent evidence on part of respondent Wiley to prove his residence in DeKalb County, Missouri, the required period of time. 17 Am. Jur., secs. 19, 33, 88, 89, pp. 603, 611, 641; Scovill v. Glasner, 79 Mo. 449; Lankford v. Gebhart, 130 Mo. 621; State ex rel. v. Shepherd, 218 Mo. 656; Northern v. McCaw, 175 S.W. 317; 19 C.J., secs. 11, 59, pp. 402-403, 428; In re Lankford's Estate, 197 S.W. 147; Nolker v. Nolker, 257 S.W. 798; Finley v. Finley, 6 S.W. (2d) 1006; In re Ozias' Estate, 29 S.W. (2d) 240; Trigg v. Trigg, 41 S.W. 589. (6) Physical presence sufficient, however short, with intent to make residence at place of presence, sufficient, and physical presence (proof of) makes all evidence of overt acts, and statements competent to prove intention. This doctrine the Commissioner erred in refusing to follow. Finley v. Finley, 6 S.W. (2d) 1006; State ex rel. v. Finn, 4 Mo. App. 148; In re Ozias' Estate, 29 S.W. (2d) 240; Authorities cited under Point (2). (7) The Commissioner erred in his recommendations that proceedings be dismissed as to respondent Barbieri. 30 Am. Jur. 207, p. 944; 34 C.J., sec. 1912, p. 902; Reilly, Admr., v. Russell, 39 Mo. 152; State ex rel. v. Buckner, 229 S.W. 392; State ex rel. Atty. Gen. v. Seay, 64 Mo. 89; State ex inf. v. Norborne Drainage Dist. Co., 234 S.W. 344; 17 A.L.R., l.c. 284; Tibbs v. Atlanta, 125 Ga. 18; State v. Welsh, 109 Iowa, 19; State ex rel. Atty. Gen. v. Lazarus, 39 La. Ann. 142; Allen v. Tufts, 131 N.E. 573; Hawkins v. Grand Rapids, 192 Mich. 276; State ex rel. v. Magearden, 85 Minn. 41; State v. Hill, 37 Neb. 80; Territory v. Schnes, 14 N.M. 493; State ex rel. v. Howse, 134 Tenn. 67; 22 R.C.L. 570; State ex rel. Atty. Gen. v. Wymore, 132 S.W. (2d) 979; State ex rel. Atty. Gen. v. Wymore, 119 S.W. (2d) 941; Secs. 12941, 12943, 12989, R.S. 1939; Stanley v. Hopkins County, 190 Ky. 495; State v. Smiley, 263 S.W. 825. (8) All statutes as to qualification should be liberally constructed to permit majority of the people to exercise their right of choice. State ex inf. Noblet, Pros. Atty., ex rel. McDonald v. Moore, 152 S.W. (2d) 86; State ex rel. Pros. Atty. v. Heath, 132 S.W. (2d) 1001.

DALTON, C.


This is an original action in quo warranto commenced by the Attorney General filing an information against the respondents. The information charged that each respondent was purporting to act as Prosecuting Attorney of DeKalb County, and alleged that it would be in the public interest for this court to determine the matter. Relator prayed that an order be directed to each to show cause and definitely set forth his rights and claims to the said office, and asked the court to determine who is the duly qualified Prosecuting Attorney of said county and, having so determined that fact, to oust the usurper from said office. Respondents filed separate answers and returns, each claiming the right to act as Prosecuting Attorney of DeKalb County. This court, thereupon, appointed a special commissioner to hear the evidence and report his findings of fact and conclusions of law. The commissioner, so appointed, has filed his report recommending that respondent Wiley be declared "not to be the duly elected, qualified and acting Prosecuting Attorney of DeKalb County" and that he be enjoined from exercising the powers, rights and authorities of said office, and that the proceedings against respondent Barbieri be dismissed. Respondent Wiley has filed exceptions to the report.

In view of the issues raised, it becomes necessary to consider the pleadings. Relator was granted permission to exhibit one information against the two respondents to try their respective rights to said office in one proceeding. [See Sec. 1784, R.S. 1939, Mo. Stat. Ann., Sec. 1620, p. 1772.] The information, among other things, charged

160 S.W.2d 680

that "respondent, William M. Barbieri, since September 23rd, 1938, has been the duly appointed, qualified and acting Prosecuting Attorney of DeKalb County, Missouri, and is, under the provisions of Sec. 5, Article XIV of the Missouri Constitution, and Sec. 11309, Revised Statutes of Missouri, 1929, entitled to continue to hold the office of Prosecuting Attorney of DeKalb County, Missouri, until a duly qualified successor is elected, commissioned and qualified; and said respondent is now acting and performing the duties of Prosecuting Attorney of said County." It further charged that "respondent, Max R. Wiley, wrongfully and unlawfully filed his declaration as a candidate on the Republican ticket in DeKalb County, Missouri, for the office of Prosecuting Attorney thereof; ... that at the time of the filing of said declaration of his candidacy for said office, and at the time of the 1940 primary and general elections, said respondent was not and could not have been a bona fide resident of DeKalb County, Missouri, ... for the twelve months next preceding the date of the 1940 general election ... because during the major portion of said time, said respondent was a resident of Clinton County, Missouri... and could not, by reason of the aforesaid fact, have been legally elected to the office of Prosecuting Attorney of DeKalb County; that on or about January 1st, 1941, said respondent wrongfully undertook to take the oath of office as Prosecuting Attorney of DeKalb County, and has usurped, intruded into and sought unlawfully to hold and execute the office of Prosecuting Attorney of DeKalb County, and is now attempting to usurp, intrude into and unlawfully to hold and execute said office, and is unlawfully holding himself out as the duly elected, qualified and acting Prosecuting Attorney of said County."

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