State ex inf. McKittrick v. Wilson

• Decision Date: 07 December 1942
• Docket Number: 38087
• Parties: State of Missouri upon the information of Roy McKittrick, Attorney General of the State of Missouri, Relator, v. Wade Wilson
• Court: Missouri Supreme Court

166 S.W.2d 499

350 Mo. 486

State of Missouri upon the information of Roy McKittrick, Attorney General of the State of Missouri, Relator, v. Wade Wilson

No. 38087

Supreme Court of Missouri

December 7, 1942

Ouster ordered.

Roy McKittrick, Attorney General, Harry H. Kay and W. O. Jackson, Assistant Attorneys General, for relator.

(1) Jurisdiction. Sec. 3, Art. VI, Constitution of Missouri. (2) No vacancy existed in the office of clerk of the Circuit Court of Henry County, which would authorize the Governor to make an appointment. Sec. 13284, Art. 1, Chap. 92, R. S 1939; State ex inf. Hadley, ex rel. Wayland v Herring, 208 Mo. 708, 106 S.W. 984; State ex rel Sanders v. Blakemore, 104 Mo. 340, 15 S.W. 984; Collins v. State, 8 Ind. 344; State v Bemenderfer, 96 Ind. 374; Gossman v. State, 6 N.E. 349, 106 Ind. 203; People v. Tilton, 37 Cal. 614; Commonwealth v. Hanley, 9 Pa. 513; Johnston v. Wilson, 2 N.H. 202, 9 Am. Dec. 50; People v. Henderson, 35 P. 517, 4 Wyo. 535, 22 L. R. A. 751; Pruitt v. Squires, 68 P. 643, 64 Kan. 855; Sec. 18, Art. II, Constitution of Missouri; Secs. 12828, 13299, R. S. 1939; 1 Debates, Const. Conv. 1875, 440; State ex rel. Tilley v. Slover, 113 Mo. 202, 20 S.W. 788; State ex rel. McGaughey v. Grayson, 163 S.W.2d 335; State v. Yager, 250 Mo. 388, 157 S.W. 557; McEvers v. Boyle, 25 Cal.App. 476, 144 P. 308; Bunch v. City of Macon, 29 Ga.App. 290, 115 S.E. 40; Hamilton v. King, 206 S.W. 953; Title 50, U.S.C. A., secs. 301-361, inclusive.

Silvers & Silvers for respondent.

(1) If the office of circuit clerk became vacant, then the Governor was empowered to appoint a clerk. Const. Missouri, Art. V, Sec. 11; Chap. 92, Art. 1, Sec. 13284, R. S. 1939. (2) Mr. Wall could not assume and exercise the duties of circuit clerk because he was in the army and out of the State. An office is vacant when there is no person authorized to assume and exercise, at present, the duties thereof. State ex rel. Sauchez v. Dixon, 4 So.2d 591; State ex rel. Hoyt v. Metcalf, 80 Ohio St. 244, 88 N.E. 738. (a) Vacancy of office exists when there is no incumbent thereof. Williams v. Mabry, 176 Tenn. 343, 141 S.W.2d 481. (b) When respondent was appointed, Mr. Wall could not legally perform the duties of circuit clerk; and he was somewhere out of the State in the army, so he was not in present possession. An incumbent of an office is one authorized to exercise its functions and in present possession thereof. 31 C. J. 409, "Incumbent;" People on Complaint of Chapman v. Rapsey, 16 Cal.2d 636, 107 P.2d 388; Leymel v. Johnson, 105 Cal.App. 694, 288 P. 588; Webster International Dictionary, "Incumbent;" Black Law. Dic. (3) When an office becomes vacant it is within the authority of the appointing power to ascertain the fact of vacancy, without judicial determination thereof, unless the Constitution or statute requires such judicial determination. There is no such requirement in Missouri; so the Governor had power to determine the fact of vacancy and make the appointment of respondent. Gossman v. State, 106 Ind. 203, 6 N.E. 349. (4) Devotion of his time to the performance of the duties of his office is prerequisite to the right of John R. Wall to continue to hold the office of circuit clerk. Const. Missouri, Art. II, Sec. 18. (a) The constitutional provision last above cited makes no exception as to the cause or reason for failure personally to devote his time. The policy of this State is further defined upon this matter by a statutory provision that the Governor shall make an appointment when a vacancy occurs in the office of circuit clerk by either of certain causes mentioned or otherwise. Chap. 92, Art. 1, Sec. 13284, R. S. 1939. (b) Any condition causing a vacancy in office of circuit clerk, other than those specified in the statute, is covered by the words of the same section, which says if a vacancy occurs by death -- or otherwise. Chap. 92, Art. I, Sec. 13284, R. S. 1939. (c) Further our law indicates that failure of an official personally to devote his time to the office disqualifies him, regardless of the reason for such failure. It is only in case of violation or neglect of any official duty that the misconduct must be willful or fraudulent; and it is only in case of failure or refusal to perform any official act with respect to execution or enforcement of the criminal law, that the misconduct must be knowingly or willfully done. Chap. 83, Art. 3, Sec. 12828, R. S. 1939. (5) The requirement of the Constitution and statutes for personal devotion of an officer's time, is not complied with by appointment of a deputy to perform the duties of the office. State ex rel. Tilley v. Slover, 113 Mo. 202, 20 S.W. 788; State v. Yager, 250 Mo. 388, 157 S.W. 557; 1 Debates of Const. Conv. 1875, 440. (a) There are some duties of the office which a deputy cannot perform even under personal supervision of the clerk. State v. Foreman, 121 Mo.App. 502, 97 S.W. 269. (6) The office of circuit clerk is an important one, requiring skill and ability. Its duties require continuous, daily attention. Therefore, when conditions arose making it impossible for John R. Wall to give any personal time to the office, there was a noncompliance with the law and Constitution enjoining such attention. State ex rel. Sanders v. Blakemore, 104 Mo. 340, 15 S.W. 960.

J. Francis O'Sullivan, Vance Julian, William O. Reeder and Claude W. McElwee, amicus curiae.

(1) The inability of John R. Wall to be personally present and to personally perform the duties of his office as circuit clerk of Henry County, which resulted entirely from his induction into the armed forces of the United States under the Selective Service Act of 1940, did not create a vacancy in the office of clerk of the Circuit Court of Henry County because he neither died, resigned, refused to act, nor was removed from office, as provided in Sections 13300 to 13306, Revised Statutes of Missouri 1939. His inability to be personally present, and to personally perform the duties of his said office, did not, therefore, amount to or constitute any of the acts specified in Section 13284, Revised Statutes of Missouri 1939, as creating a vacancy in the office of circuit clerk. Art. XIV, Sec. 7, Constitution of Mo.; Secs. 13284, 13300-13306, R. S. 1939; State ex rel. McGaughey v. Grayston, 163 S.W.2d 335. (2) The office of circuit clerk is a ministerial office and all of its duties are capable of performance by deputies. As John R. Wall duly delegated the performance of the duties of his said office to Jessie E. Rucker, whose competence to properly perform the duties of the office is not questioned by the pleadings, his personal presence is neither necessary nor indispensable to the proper and efficient performance of the duties of the office, and under the circumstances his inability to be personally present and to personally perform or supervise the performance of the duties of his office, resulting from his induction into the armed forces of the United States under the Selective Service Act of 1940, does not constitute nonfeasance, malfeasance, misdemeanor in office, or a vacancy in his office. State ex rel. v. Hostetter, 137 Mo. 636, 39 S.W. 270; State ex rel. McGaughey v. Grayston, 163 S.W.2d 335. (3) By the provisions of Section 13284, Revised Statutes of Missouri 1939, a vacancy occurs in the office of clerk of the circuit court upon his death, resignation, removal, refusal to act, "or otherwise," and by the rule of construction known as "ejusdem generis," since the words "or otherwise" follow the enumeration of particular acts which constitute a vacancy in the office of circuit clerk, the meaning of the words "or otherwise," as they appear in said statute, will be construed as applicable only to acts of the same nature or class as those enumerated, namely, death, resignation, removal or refusal to act, and since John R. Wall has neither died, resigned, refused to act nor been removed from office (in the manner provided in Sections 13300-13306, inclusive, Revised Statutes of Missouri 1939) no vacancy occurred in the office of circuit clerk of Henry County by or upon his induction into the armed forces of the United States under the Selective Service Act of 1940. State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64; Regan v. Ensley, 283 Mo. 297, 222 S.W. 773; 59 C. J., p. 981, sec. 581. (4) A clerk of the circuit court can be removed from office only when he has been found guilty of "a misdemeanor in office," which is defined in Section 13300, Revised Statutes of Missouri 1939, as knowingly and willfully doing any act contrary to the duties of his office, or knowingly and willfully failing to perform any act or duty required of him by law. Therefore, as John R. Wall did not voluntarily fail to personally perform any of the duties of his office, but was involuntarily prevented from continuing to do so personally by his induction into the armed forces of the United States under the Selective Service Act of 1940, his inability to be personally present and to personally perform the duties of his office was not voluntary and could not be construed either as "knowingly and willfully doing any act contrary to the duties of his office," or "knowingly and willfully failing to perform any act or duty required of him by law," and, therefore, he is not guilty of "a misdemeanor in office," as that term is defined in the statute, and is not subject to removal from office. State ex rel. v. Sheppard, 192 Mo. 497, 91 S.W. 447; Sec. 13300, R. S. 1939. (5) Even if John R. Wall were guilty of "a misdemeanor in office," as that term is defined in Section 13300, Revised Statutes of Missouri 1939, and proceedings were instituted to remove him from office, as provided in Sections 13300 to 13306, Revised Statutes of Missouri 1939, he could not...