State ex Inf. McKittrick v. Wymore

• Decision Date: 28 September 1938
• Docket Number: No. 35738.,35738.
• Citation: 119 S.W.2d 941
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator, v. CARL F. WYMORE, Prosecuting Attorney of Cole County.

119 S.W.2d 941

STATE OF MISSOURI upon the information of ROY McKITTRICK, Attorney General, Relator, v. CARL F. WYMORE, Prosecuting Attorney of Cole County.

No. 35738.

Supreme Court of Missouri.

Court en Banc, September 28, 1938.

Quo Warranto.

MOTION TO QUASH INFORMATION OVERRULED.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for relator; Edward C. Crow of counsel.

(1) The Missouri Supreme Court has held Section 11202 and its associate section is not the exclusive remedy for removal of county, city, town and township officials from office. State ex rel. v. Walbridge, 119 Mo. 383, 24 S.W. 457; Manker v. Faulhaber, 94 Mo. 430, 6 S.W. 372; Mechem on Public Officers, sec. 478; State v. Collier, 72 Mo. 13; State ex rel. v. Foster, 32 Kan. 42; State ex rel. Young, Attorney General, v. Robinson, 101 Minn. 277; State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758; State ex rel. v. Slover, 113 Mo. 202, 20 S.W. 788; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W. (2d) 363; State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State ex rel. v. Jones, 108 S.W. (2d) 901. This court has taken jurisdiction in quo warranto proceedings against various officials. State ex inf. Crow v. Roberts, 153 Mo. 112, 54 S.W. 520; State ex rel. Attorney General v. Davis, 44 Mo. 129; State ex rel. v. Sanderson, 380 Mo. 258, 217 S.W. 60; State ex rel. Attorney General v. Ransom, 73 Mo. 78; State ex rel. v. Collier, 72 Mo. 17; State ex inf. Major v. Breuer, 235 Mo. 240, 138 S.W. 515; State ex inf. Major v. McKay, 249 Mo. 249, 155 S.W. 396; State ex rel. v. Ford, 41 Mo. App. 122; State ex inf. v. Brown, 220 Mo. App. 468, 274 S.W. 965; State ex rel. Walker v. Gus, 125 Mo. 325, 36 S.W. 636; State ex inf. v. Whittle, 333 Mo. 705, 63 S.W. (2d) 100. (2) Where the law provides a forfeiture if an officer shall commit or be guilty of certain acts, which may also be crimes, the commission of the acts works a forfeiture, and conviction of the crime is not a prerequisite for quo warranto. Earl of Shrewsbury's case, 5 Coke, sec. 9, p. 89; Hawkins, Pleas of the Crown, chap. 66, sec. 1, p. 311; 7 Bacon's Ab. Title Officers, M., pp. 321, 322; 2 Extraordinary Remedies (2 Ed.), p. 1516, sec. 1765; Commonwealth ex rel. Attorney General v. Walter, 83 Pa. St. 105; Commonwealth v. Allen, 70 Pa. St. 465; State ex rel. v. Foster, 32 Kan. 14; Throop on Public Officers, sec. 418; Rex v. Wells, 4 Burrows, 2005; Mechem on Public Officers, sec. 478. (3) The enactment of the Act of 1877, now Section 11202 and its associate sections, in pursuance of Section 7 of Article XIV of the State Constitution whereby jurisdiction was conferred upon circuit courts to remove recalcitrant county officials in civil action in the circuit court, would not deprive the Supreme Court of its original jurisdiction to issue the writ of quo warranto in an ex officio application therefor to remove a prosecuting attorney neglecting and failing, willfully and corruptly to enforce the criminal laws. Gittings v. Crawford, 10 Fed. 447; Bors v. Preston, 111 U.S. 258; United States v. Bank of New York County, 290 U.S. 479; Alma v. Harris, 5 John. 175; Lewis-Sutherland on Statutory Construction, sec. 572, p. 1057. The extraordinary writs of this court under Article VI, Section 3 of the Constitution are common law writs of ancient origin. 29 C.J., p. 6, sec. 1; 38 C.J., p. 541, sec. 2; 11 C.J., p. 88, sec. 1; 51 C.J., p. 309, sec. 2; State v. Goodrich, 257 Mo. 40, 165 S.W. 707; State v. Stewart, 32 Mo. 379; Thomas v. Mead, 36 Mo. 233. Previous efforts to destroy these extraordinary writs have been unsuccessful. Ex parte Hagen, 295 Mo. 435, 245 S.W. 336; In re Howell & Ewing, 273 Mo. 96, 200 S.W. 65; Ex parte O'Brien, 127 Mo. 477, 30 S.W. 158; State ex inf. v. Vallins, 140 Mo. 523, 41 S.W. 887; State ex inf. v. Equitable Loan & Inv. Co., 142 Mo. 325, 41 S.W. 916. (4) This court possesses the inherent common law power to issue its writ of quo warranto in this case. (a) Public office at common law was held upon the implied condition that the officer would perform the duties attached to it, and the failure to perform such duties constituted a forfeiture of the office. Mechem's Public Officers, sec. 435; State ex rel. v. McLain, 50 N.E. 907. (b) An officer was indictable at common law for failure to perform the duties of his office. Throops, Public Officers, sec. 863, p. 821; Crauther's Case, 78 E.R. 893; The Queen v. Wiat, 88 E.R. 880; R. v. Wyat, 1 Salk, 380; The King v. Pinney, 11 D.E.R. 349; Throops, Public Officers, sec. 861, p. 819; Reg v. Glamorgan County Council, 2 Q.B. 542; R.V. Johnson, 88 E.R. 887; R. v. Curtis, 15 Cox's C.C. 746; King v. Bambridge Case, Doug. Rep. 332; R. v. Tiverton Corp., 88 E.R. 136; Lord Shrewsbury's Case, T. 8, Jac. 1, 9 Co. 50; King v. Rook, 2 Raym. Ld. 237; Rex v. Wells, 4 Burr. 2004; People v. Hartwell, 67 Cal. 11. (c) An officer who became indictable at common law forfeited his office and could be removed from office for misconduct. Throops, Public Officers, secs. 418, 855, pp. 409, 813; Conybeare v. London School Board, 1 Q.B. 118; Lord Bruce's Case, 93 E.R. 870; Mechem's Public Officers, sec. 478; Commonwealth v. Walter, 83 Pa. St. 105, 24 Am. Rep. 154; State v. Wilson, 30 Kan. 661; State v. Allen, 5 Kan. 213; State v. Graham, 13 Kan. 136; Graham v. Cowgill, 13 Kan. 114; State v. Norman, 82 N.C. 687. (d) Misconduct in office forfeited the office under the common law. 7 Bacon's Ab. Title Officers, M., pp. 321, 322; 5 Coke, sec. 9, p. 89; Willcock Mun. Corp. 14 L.L., pp. 149, 152, 250, secs. 704, 716, 348; Rex v. Wells, 4 Burrows, 1999, 2007; 2 Quo Warranto Informations, 55 L.L., p. 114; (e) At common law the proper procedure against an officer who had forfeited his office was quo warranto. Comyns Digest, Laws of England, p. 160. (5) Respondent's claim that the relator has a plain and adequate remedy is without merit. Wheeler v. Bedford, 7 Atl. 22, 54 Conn. 244; State v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L.R.A. 787; Manker v. Faulhaber, 94 Mo. 430, 6 S.W. 372. The writ of quo warranto is a writ of right and issues as a matter of course upon demand of the Attorney General State ex inf. Crow, Attorney General, v. A., T. & S.F. Ry. Co., 176 Mo. 687, 75 S.W. 776; State ex rel. v. Cupples Sta. L., H. & P. Co., 283 Mo. 115, 223 S.W. 75; State ex rel. v. Stewart, 32 Mo. 379; State ex rel. Washington County v. Stone, 25 Mo. 555; State ex rel. Brown v. McMillan, 108 Mo. 153, 18 S.W. 784. (6) The information states a cause of action. The facts charged in the information herein show the respondent has been guilty of a criminal offense both under our statute and the common law and as the crime charged concerns the administration of justice and the commonwealth he has forfeited his office both at common law and under our statutes upon his refusal, failure and neglect to prosecute criminals openly violating the law. Earl of Shrewsbury's case, Cokes R. 1, p. 89; Rex v. Wells, 4 Burr. 2005; Hawkins Pleas of the Crown, chap. 66, sec. 1, p. 311; Secs. 3946, 3950, 4243, 11202, R.S. 1929; State v. Collier, 72 Mo. 13.

John G. Madden, James E. Burke and Madden, Freeman & Madden for respondent.

(1) The statutory remedy (for the removal of respondent from office under the allegations of the information) is exclusive, and this court is without jurisdiction in quo warranto, for the reason that this court is without inherent authority, under its original jurisdiction in quo warranto, to remove public officers for alleged misconduct in office, and such authority, if it exists, must be found in constitutional or valid legislative provisions relating to such removals, and in this State no constitutional or legislative provision confers such authority; this proceeding in quo warranto is, therefore, extra-jurisdictional and without warrant of law. Sec. 11202, R.S. Mo. 1929; Bakersfield News v. Ozark County, 92 S.W. (2d) 605; State ex rel. v. Wurdeman, 309 Mo. 414; State ex rel. v. Sheppard, 192 Mo. 497. (a) This court is without inherent authority, under its constitutional jurisdiction in quo warranto, to remove public officers merely for misconduct in office, and hence, there being no prior judgment of forfeiture in the instant case, this court (independently of the constitutional and statutory provisions relating to such removals from office) is clearly without jurisdiction. State ex inf. v. Ellis, 325 Mo. 154, 28 S.W. (2d) 363; High on Extraordinary Legal Remedies (3 Ed.), sec. 618, p. 573; Mechem on Public Offices & Officers, sec. 478, p. 309; State ex inf. v. Whittle, 63 S.W. (2d) 100, 333 Mo. 705; State ex rel. v. Dearing, 254 Mo. 613; State ex rel. v. Wilson, 30 Kan. 661, 2 Pac. 828; State ex rel. v. Sanderson, 217 S.W. 60; State ex inf. v. Thatcher, 102 S.W. (2d) 937; State ex rel. v. Harmon, 98 Atl. 804, 115 Me. 268; McDonough v. Bacon, 84 S.E. 589; State ex rel. v. Drainage Dist. 160 N.W. 997; State v. Lancaster, 266 N.W. 591; State ex rel. v. Valz, 157 So. 651; State ex rel. v. Bates, 171 So. 370; People ex rel. v. Taylor, 281 Ill. 358; State ex rel. v. Leib, 125 Pac. 601; Burkholder v. People, 147 Pac. 347; Attorney General v. Maybury, 104 N.W. 324; People ex rel. v. Bradford, 267 Ill. 486, 108 N.E. 732; Bradford v. Territory, 37 Pac. 1061; State ex rel. v. Foster, 3 Pac. 534; State ex rel. v. Darnall, 256 Pac. 974; State ex rel. v. Baird, 231 Pac. 1021; Attorney General v. Tufts, 132 N.E. 322; State ex rel. v. Carl, 245 Pac. 150. (b) This court being thus without jurisdiction in the instant case, independently of and without resort to the constitutional and statutory provisions governing removals, the constitutional provision relating to such removals (Art. XIV, Sec. 7) does not confer the jurisdiction thus lacking since it is not self-enforcing, it creates no ipso facto forfeiture, and it specifies a different remedy to be created by the General Assembly. Such constitutional provision is not self-enforcing. Such...