State ex rel. McGaughey v. Grayston

• Decision Date: 23 June 1942
• Docket Number: 38029
• Parties: State of Missouri at the relation of H. D. McGaughey, Relator, v. Charles M. Grayston
• Court: Missouri Supreme Court

163 S.W.2d 335

349 Mo. 700

State of Missouri at the relation of H. D. McGaughey, Relator, v. Charles M. Grayston

No. 38029

Supreme Court of Missouri

June 23, 1942

Writ denied.

C T. Craig and R. H. Davis for relator.

(1) Section 4, Article XIV, of the Constitution of Missouri provides that, "No person holding an office of profit under the United States shall, during his continuance in such office, hold any office of profit under this state." This provision is self-enforcing, and no enactment of the General Assembly is required to make it effective. State ex rel. v. Hall, 325 Mo. 154, 28 S.W.2d 363; State ex inf. v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97. (2) The position of colonel in the national guard of a State inducted into the military service of the United States under the laws of the United States, and the call or proclamation of the President of the United States calling and ordering the guard into such service, is an office within the meaning of said provision of the Constitution. The following positions have been held to be offices under State constitutions and statutes prohibiting the holding of dual offices by the same person at the same time, to-wit: Tax collector of a school district, Privitt v. School District, 84 S.W.2d 1006; A deputy federal marshal, Illinois v. Moody, 9 F.2d 628, 632; Commissioner of a port district, State v Waddell, 183 P. 67, 69; Game warden, Wallace v Commonwealth, 156 N.E. 168, 169; A county jailer Scott v. Scotts Bluff Co., 183 N.W. 573; State ex rel. Biggs v. Corley, 172 A. 415. And the following have been held to be offices in this State, to-wit: A probation officer, State v. Hastings, 314 Mo. 144; Mayor of a city of the third class, State ex inf. v. Ferguson, 65 S.W.2d 97; A school director, State ex inf. v. Whittle, 63 S.W.2d 102; A deputy inspector of boilers and elevators, Gracy v. St. Louis, 213 Mo. 394; A deputy sheriff, State ex rel. v. Bus, 135 Mo. 325; A captain in the State National Guard, Fekete v. East St. Louis, 145 N.E. 692; Lowe v. State, 83 Texas, 134, 201 S.W. 986; United States commissioner, State ex rel. v. Gumer, 169 N.W. 304; City of Lynchburg v. Suttenfield, 13 S.E.2d 323; A commissioner of a circuit court, State ex rel. v. Turner, 169 N.W. 304. (3) It is held generally by the appellate courts of the Union that the acceptance of a second office, when prohibited by either the Constitution or statute of the State, operates, ipso facto, a resignation of the first office. 46 C. J., p. 947, sec. 55; Campbell v. Hunt, 162 P. 882; Hiday v. State, 115 N.E. 601; Fekete v. East St. Louis, 145 N.E. 692; Wells v. State, 96 N.E. 321; State v. Corley, 172 A. 415; State ex rel. v. Bus, 135 Mo. 330; State ex rel. v. Turner, 169 N.W. 304. (4) One who holds a Federal office at the time of his election or appointment to a State office, if the holding of a State office and a Federal office, at the same time, is prohibited by the Constitution or statute, operates as a resignation or vacation, ipso facto, of the State office. 46 C. J., pp. 947, 948, sec. 55; State v. Bratton, 253 S.W. 706; Fekete v. East St. Louis, 145 N.E. 692; Lowe v. State, 201 S.W. 986; State v. Mason, 135 So. 809; Bishop v. State ex rel., 48 N.E. 1058; People v. Leonard, 14 P. 853; Foltz v. Kerlin, 4 N.E. 439; 22 R. C. L., sec. 90, p. 437; Johnson v. Sanders, 115 S.W. 773; State ex rel. v. Barham, 137 So. 862; Shepherd v. Sartin, 64 So. 57; State v. Edwards, 130 A. 276. (5) It is not necessary that the question of the resignation, by operation of law, of Judge Watson from the office of circuit court judge, to which he had been elected while a colonel in the military service of the United States, should be first determined judicially in a direct proceeding by or against him before his resignation or abandonment of the office of circuit court judge can or could be called in question by a person specially interested in a proceeding pending in division No. 1 of said circuit court. 46 C. J., sec. 140, p. 981; City of Williamsburg v. Weesner, 178 S.W. 224, 164 Ky. 769; Fekete v. East St. Louis, 145 N.E. 692; State ex rel. v. Bus, 135 Mo. 330; Dillon, Munic. Corp. (4 Ed.), sec. 325; Attorney-General v. Maybury, 141 Mich. 31, 104 N.W. 324, 113 Am. St. Rep. 512; Lowe v. Texas, 201 S.W. 986; State ex rel. Gray v. Pipes, 133 So. 812; 22 R. C. L., p. 419, sec. 63; Chrisholm v. Cloeman, 43 Ala. 204, 94 Am. Dec. 678. (6) The plea that Judge Watson has severed his connection with the military forces of the United States is without merit. Bishop v. State ex rel., 48 N.E. 1058; Wells v. State, 94 N.E. 321. (7) The act of Judge Watson in taking and subscribing the oath of office, after his election in 1940, was null and void, and that fact constitutes no defense to this action. State ex rel. v. Pipes and State ex rel. v. Mason and State ex rel. v. Barham, 137 So. 862; State ex rel. v. Edwards, 130 A. 276. (8) This action is not a suit to try title of Judge Watson to the office of circuit court judge, and no relief or judgment can be awarded against him in this action; but this action is one in prohibition to have determined whether he resigned and vacated said office by operation of law on the facts pleaded in the amended petition or application and the return of respondent. Fekete v. East St. Louis, 145 N.E. 692; Lynchburg v. Suttenfield, 13 S.E.2d 323; Cook v. Kennedy, 146 S.W. 56; People ex rel. v. Leonard, 14 P. 853.

Allen McReynolds, Loyd E. Roberts, Roy Coyne, John Scott and Haywood Scott for respondent.

(1) The title to a judicial office, either de facto or de jure, may not be tried by prohibition, quo warranto being the exclusive remedy to reach the question of usurpation of judicial office. R. S. 1939, secs. 1782, 1773, 2105; Mo. Const., Art. VI, Sec. 29; 16 Encyl. P. & P. 1094; 17 Encyl. P. & P. 386-387; State v. St. Louis Perpetual Marine, etc., Ins. Co., 8 Mo. 330; State v. Stone, 25 Mo. 555; State v. Laughlin, 7 Mo.App. 529; 50 C. J. 692; 22 R. C. L. 17, sec. 15; State v. Dawson, 333 Mo. 673, 63 S.W.2d 135; State ex rel. Blue v. Waldo, 222 Mo.App. 396, 5 S.W.2d 653; State v. Kansas City, 319 Mo. 705, 7 S.W.2d 357; 111 Am. St. Rep. 939; Walcott v. Wells, 21 Nev. 47, 24 P. 367, 37 Am. St. Rep. 478; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Usher v. Western Union Tel. Co., 122 Mo.App. 98, 98 S.W. 84. (2) The National Guard of Missouri is a part of the militia of the United States and the State of Missouri, was organized pursuant to, and in accordance with powers granted by the Constitution of the United States and of the State, in furtherance of a common purpose, to provide for the common defense. U.S. Const., Art. I, Sec. 8, clauses 1, 12, 14, 15, 16; Arver v. United States, 62 L.Ed. 349, 245 U.S. 366; Mo. Const., Art. XIII, Secs. 1, 2, 3, Art. V, Sec. 7; R. S. 1939, chap. 121. (3) The induction of the National Guard into the service of the United States for active duty does not change the status of the organization or of its officers. (4) The office of circuit judge and that of Colonel in a National Guard regiment in Missouri are not incompatible under the terms of the Missouri Constitution. Mo. Const., Art. IV, Sec. 12, Art. IX, Sec. 18. (5) A national guard officer ordered to active duty in the military service of the United States does not hold an office under the United States such as is prohibited by Article XIV, Section 4, of the Constitution of Missouri. State v. Joseph, 78 So. 663, L. R. A. 1918E, 1062; Carpenter v. Shephard, 135 Tex. 413, 145 S.W.2d 562; Kennedy v. Cook, 146 S.W.2d 56; Lynchburg v. Suttenfield, 13 S.E.2d 323; McCoy v. Board of Supervisors of Los Angeles County, 114 P.2d 569; United States v. American Brewing Co., 296 F. 776; Gracie v. St. Louis, 213 Mo. 394, 111 S.W. 1159; United States v. Hartwell, 6 Wall. 385; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105; 53 A. L. R. 595; 93 A. L. R. 333; State ex inf. McKittrick v. Bode, 342 Mo. 162, 113 S.W.2d 805; Martin v. Smith, 1 N.W.2d 163.

J. Carrol Combs, Edwin L. Moore, Robert Stemmons, F. P. Sizer, James E. Sater, John H. Flanigan, George E. Phelps, John H. Flanigan, Jr., Westley Halliburton, E. J. McNatt, Arthur W. Allen, E. P. Mann, Frank C. Mann, Justin Ruark, Leo H. Johnson, James L. Paul, E. B. Morgan, Fred A. Walker, Don H. Elleman, Woodson Oldham, Stanley P. Clay, Paul E. Bradley, Max Patten, L. J. Haines, Henry Warten, Enos Currey, Ray Bond, John S. Bond, J. B. Greer, Dale Tourtelot, Emerson Foulke, Kelsey Norman and William F. Maher amicie curiae.

Douglas, J. All concur except Gantt, J., not sitting.

OPINION

DOUGLAS

The decision in this case turns on whether a judge of a circuit court who is called into the military service of the United States as a Colonel in the National Guard thereby vacates his judicial position.

Ray E. Watson, Judge of Division One of the Circuit Court of Jasper County, was called into active service in 1940 as a Colonel of the Missouri National Guard in command of a Coast Artillery Anti-Aircraft regiment. In his absence the court has functioned through special judges as provided by law. ^[1] Nine hundred and ninety-four cases have been disposed of by these special judges.

Charles M. Grayston, Esq., of the Jasper County Bar, the respondent, was elected special judge by the lawyers to hold the January, 1942, term at Joplin. While in the exercise of his duties he was about to proceed with the case of McGowen v. McGaughey, a suit to recover $ 10,000 damages. The defendant objected to his jurisdiction to try the case on the ground there was no authority for his election as special judge under the existing circumstances. The objection was overruled and defendant, as relator comes to this court for prohibition.

In this State a special judge is a judge de facto. ^[2] Usually the authority of a...