State ex rel. Danforth v. Alford, 56820

• Decision Date: 04 May 1971
• Docket Number: No. 56820,56820
• Citation: 467 S.W.2d 55
• Parties: STATE of Missouri ex rel. John C. DANFORTH, Attorney General, Relator, v. Hon. John M. ALFORD, Clerk of the County Court of Pemiscot County, Missouri, Respondent. . Order
• Court: Missouri Supreme Court

Page 55

467 S.W.2d 55

STATE of Missouri ex rel. John C. DANFORTH, Attorney General, Relator, v. Hon. John M. ALFORD, Clerk of the County Court of Pemiscot

County, Missouri, Respondent.

No. 56820.

Supreme Court of Missouri, En Banc.

Order May 4, 1971.

May 11, 1971.

Charles A. Blackmar, Asst. Atty. Gen., for John C. Danforth, Atty. Gen.

James E. Reeves, Caruthersville, for respondent.

ORDER

Provisional rule in prohibition made absolute.

Opinion to be filed later.

HOLMAN, Judge.

Original proceeding in prohibition. The relator is John C. Danforth, Attorney General, and the respondent is John M. Alford, County Clerk of Pemiscot County. The relator seeks to prohibit respondent from placing the name of Clyde Orton on the ballot for the special election to be held on May 11, 1971, to elect a sheriff for Pemiscot County. We issued our provisional rule on April 26, 1971. Because of the time element involved the case was argued on May 3, and a decision was rendered on May 4, 1971, making our provisional rule absolute, with our opinion to be filed later.

This case should be considered in connection with our opinion and judgment in State ex inf. John C. Danforth, Attorney General, v. Clyde Orton, Mo., 465 S.W.2d 618. In that quo warranto action, upon a finding of willful misconduct and neglect of duty, we ordered that Clyde Orton be 'ousted from the office of Sheriff of Pemiscot County until the end of his present term expiring December 31, 1972.' Our mandate of ouster was duly served on Clyde Orton and on Respondent Alford on April 15, 1971. The county court (in accordance with § 57.080, RSMo 1969, V.A.M.S.) made an appointment to temporarily fill the vacancy and ordered the special election heretofore mentioned to elect a successor to the office of sheriff for the remainder of the term expiring December 31, 1972. Thereafter, Clyde Orton filed a 'Candidate's Declaration' and 'Nominating Petition' with respondent County Clerk as a candidate for said office in the special election. It is admitted that unless prohibited by this court respondent will place the name of Clyde Orton on the ballot as a candidate for sheriff at the special election.

Relator contends that Orton is not qualified to be a candidate for the office of sheriff in the special election and that since he is ineligible prohibition should be utilized to exclude his name from the ballot. Respondent counters with the contentions that '(T)he quo warranto proceedings terminated with the ouster of Orton. The writ has been fully executed and the office is now vacant. The qualifications of public office are created by the legislature and cannot be enlarged upon or detracted from by the judicial branch. There is no statutory disqualification prohibiting an ousted official from again holding the same office. * * * The writ of ouster did not and could not annex a future disqualification. Such is beyond the power of the judicial branch;' that Clyde Orton's 'statutory right to office for a term of four years arising by reason of his previous election is forfeited,' but that 'he stands for election to a new term created by the vacancy and stands in the position of any other citizen who runs for the new term. If elected, his right to the office of sheriff arises by reason of the new election and not from any claim or right arising from previous office or tenure from which he was ousted.' Relator answers with the contention that Orton's ineligibility to occupy the office of sheriff of Pemiscot County prior to January 1, 1973, was finally decided and adjudged in the quo warranto case and cannot be attacked collaterally in this action.

We agree with relator's contention that Orton's ineligibility was adjudicated in the prior case. The effect of our judgment in that case was that Orton would be disqualified or ineligible to hold the office of sheriff from the date of ouster until the end of his term expiring December 31, 1972. However, since our opinion in Orton did not contain any discussion of that question we elect to briefly discuss it here. We have found no Missouri cases that decide this question. However, there are a number of well reasoned cases from other states which hold that when an official is removed from office (as was Orton) it is for the current term and he cannot thereafter be appointed or elected to that office during the remainder of his term. See State v. Rose, 74 Kan. 262, 86 P. 296; State ex rel. Childs v. Dart, 57 Minn. 261, 59 N.W. 190; and People v. Ahearn, 196 N.Y. 221, 89 N.E. 930(10). Those holdings are summarized in State ex rel. Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505, 507, as follows: '(I)n all these cases it was held that the particular term or tenure of the officer was a part of and included in his office, and that, when he was removed from his office, he was removed for the particular term or tenure he was then enjoying. So when one is removed from an office, he is removed for the current term, and he cannot thereafter be re-elected to that term. This is so because the term is part of the office.'

In Rose, supra, the court stated that '(t)he right to exercise the functions of the office of mayor and to enjoy its privileges for the two-year term was an entity conferred on the defendant, and it was that which was taken from him...