State ex Inf. Taylor v. Cumpton

• Decision Date: 11 June 1951
• Docket Number: No. 41996,41996
• Citation: 362 Mo. 199,240 S.W.2d 877
• Parties: STATE ex inf. TAYLOR, Atty. Gen., v. CUMPTON.
• Court: Missouri Supreme Court

Page 877

240 S.W.2d 877

362 Mo. 199

STATE ex inf. TAYLOR, Atty. Gen., v. CUMPTON.

No. 41996.

Supreme Court of Missouri, en Banc.

June 11, 1951.

Rehearing Denied July 9, 1951.

J. E. Taylor, Atty. Gen., Gilbert Lamb, Richard F. Thompson, Asst. Atty. Gen., for relator.

Walter A. Raymond, Kansas City, Robert L. Spurrier, Butler, for respondent.

DALTON, Judge.

Original action in quo warranto commenced in this court to oust the respondent from the office of county treasurer and ex officio collector of Bates County on the ground that he had forfeited his office by his alleged willful failure, neglect and refusal to perform the duties of said office 'as such duties were and are imposed and required by law.'

After the respondent had filed a motion to dismiss the proceeding and an answer, we appointed Hon. Ray Weightman, 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 all relief sought by relator be denied, and that judgment be entered in favor of respondent.

The information alleged that respondent was duly elected to said office, had qualified, was duly commissioned and sworn, and had assumed the duties of said office on April 1, 1949, but charged that on and after April 1, 1949 respondent had 'failed to attend to the duties of said office during the usual business hours for the transaction of business therein and failed personally to devote his time to the performance of the duties of such office of County Treasurer and Ex Officio Collector and did and does willfully neglect and refuse to perform the official acts and duties which by law it was his duty to do and perform. * * * that on or about the 14th day of March, 1949, respondent entered into a contract of employment with what is known to relator as Skelly Oil Company, * * * so that on and after April 1, 1949 the performance of his duties thereunder occupied and consumed substantially the entire working time of respondent, including the usual business hours aforesaid, * * *.' The information further alleged that 'respondent has long since forfeited his right to hold, occupy, or to receive the emoluments of, the office aforesaid * * *,' and prayed that he 'be ousted from occupying said office * * *.'

It is admitted that Bates County is a political subdivision of this state, to wit a county of the third class, with a population of approximately 20,000; that township organization has been adopted in the county; and that respondent was duly elected and had assumed the duties of his office, as alleged. The execution of a contract with Skelly Oil Company was admitted, but respondent denied that his duties under said contract occupied his entire working time. Respondent further denied that he had 'failed, neglected or refused to attend his said office or to attend to the duties thereof or to personally devote his time to the performance of the duties thereof.' He alleged that 'all of the duties of the County Treasurer and Ex Officio Collector of Bates County, Missouri have been and are now being performed by him personally or under his immediate supervision and direction.'

In reply to particular allegations in the answer, relator admitted that 'respondent is personally present in charge of said office all day long on Saturday of each week'; and 'that respondent frequently works in said office of County Treasurer before office hours, after office hours and on Sundays and holidays.'

Relator's evidence relates to two matters: (1) the activities connected with the actual operation of respondent's office and respondent's connection therewith; and (2) the activities connected with respondent's employment by the Skelly Oil Company and the time given to that work. There was little or no conflict in the oral testimony presented before the special commissioner concerning the actual operation of respondent's office and his connection therewith whether the testimony was offered on behalf of relator or respondent. The evidence tended to show that respondent was first elected county treasurer and ex officio collector of Bates County at the general elecion in 1944 and was re-elected in 1948. Mrs. Fern Bolen became his deputy in 1945 and was 'bonded,' as such, and she has continued in the office in the same capacity with respondent since that date. In this connection we may say that relator insists there is 'absolutely no legal basis for having a deputy in that office, and certainly no statute authorizing it.' We think it is immaterial to any issue in this case whether she was legally an official deputy or only an assistant. It is clearly immaterial as far as relator's position is concerned. See State ex rel. Tilley v. Slover, 113 Mo. 202, 206, 20 S.W. 788; Id., 113 Mo. 211, 20 S.W. 790.

Mrs. Bolen was well prepared for her work. She had finished high school and taken two years college work. She had taught school for five years and for four years she was the bookkeeper for a drug company. She had had four years experience acting as deputy county treasurer and ex officio collector of Bates County prior to April 1, 1949, the beginning of the period here involved. She received a salary of $175 per month, of which sum Bates County paid her $125 per month as clerk hire, and respondent paid the balance. She was in the office each week day, except Saturday and occasionally on Saturdays. The office was kept open from 8:30 to 12 a. m., and from 1 to 5 p. m., which hours corresponded with the hours other offices were kept open in the court house. In this connection the special commissioner found the facts to be that Mrs. Bolen was 'a lady of superior mentality, thoroughly familiar with all the work of the office and entirely capable of running the office even without advice or supervision. The records of the office were in excellent order and all the functions of the office were being well performed.' Other county officials testified that the work of the county treasurer's office was done promptly and efficiently so as to coordinate with the work of the other offices. No citizen testified to any defect or deficiency in the service rendered by such office.

From the second week in March 1949 to the end of that year, Mr. C. H. CcNay also worked in respondent's office, six days per week, at a salary of $200 per month paid by respondent. Mr. McNay had been a printer and publisher, and for five years, postmaster at Butler. Relator called Mrs. Bolen as a witness in his behalf and undertook to show by her 'the multitudinous duties of the county treasurer and ex officio collector' of Bates County, the extent and complexity of the statements of monthly collections, the monthly reports of moneys due from the ex officio collector to the state director of revenue and the monthly settlements prepared and filed in the office of the county clerk of the county, as well as the books and bookkeeping required in respondent's office and numerous other duties to be performed. We need not review this evidence because, as the special commissioner found, 'there is no substantial evidence in the record that the duties of such office are not properly performed.' No evidence tended to show any irregularities in the bookkeeping, reports, or settlements or that the work of the office was not efficiently and properly conducted.

The evidence tended to show and the special commissioner found that for more than 20 years there had been a bonded deputy county treasurer and ex officio collector in Bates County; and that it had been customary throughout that time for such deputy to sign checks, execute instruments and do practically all types of work pertaining to such office. Respondent was in his office in the court house every Saturday for the entire day with a possible exception or two. When he was away Mrs. Bolen was there. He spent most nights at his home in Butler. He picked up the mail at the post office almost every morning, took it to his office in the court house, read it and either answered it or instructed Mrs. Bolen how to answer it. About 90% of all mail received, and all the important mail received by the county treasurer, comes in during the night and is delivered in this first morning mail. Respondent ordinarily remained in the office from one to three hours, dependent upon the matters that required his attention. He stayed in the office 'practically all the days that the township collectors settle' with the county court and make payment to the treasurer, to wit, the first five days of December, January, February and March. During the period from May 1, to July 1, 1949, respondent was in his office about one-half of the time the office was open. After that respondent was in the office 'most mornings and sometimes in the afternoon and other parts of the day and all day on Saturday.' During the period from July 1, 1949 to April 1, 1950 respondent spent an average of 17 to 18 hours per week in his office in the court house. When respondent was out of the office, his deputy knew where and how to reach him on the phone if he was needed.

Respondent was present almost always when the county court was in session. He checked and approved all monthly settlements with the county court and usually presented them in person. He also personally checked and approved all reports to the state or county court, although in 11 out of 12 instances the reports to the state were signed on respondent's behalf by Mrs. Bolen. Respondent personally signed all liquor and pool hall licenses and all but a few of the merchant's licenses. He personally handled all tax sales, signed all certificates of purchase and personally filled out and signed all tax deeds. Of 1953 checks, for a total of $700,158.81, written in respondent's office during the period of one year, 921 of them for a total of $303,625 were personally signed by respondent. Respondent's handwriting appeared on 26 out of 57 pages of the...