State ex rel. Stinger v. Kruger
| Decision Date | 22 December 1919 |
| Citation | 217 S.W. 310,280 Mo. 293 |
| Parties | STATE ex rel. WILLIAM STINGER v. CHANCEY J. KRUGER, Judge of St. Louis Court of Criminal Correction |
| Court | Missouri Supreme Court |
Writ denied.
Campbell Allison for relator.
(1) The St. Louis Court of Criminal Correction is not only a court of limited jurisdiction, but its jurisdicton is more limited than is that of the justice of the peace. It is given jurisdiction only of certain misdemeanors that are punished in certain ways. Sec. 13, p. 2544, R. S. 1889; Ex parte O'Brien, 127 Mo. 447; Ex rel. Murphy, 132 Mo. 382; State v. Anderson, 191 Mo. 134. (2) The word "or," when used in a penal statute, denotes an alternative. The context shows that it was not used or intended to be construed as meaning "and." State v St. Louis, 174 Mo. 145; Germania v. State, 7 Md. 1; State v. Walker, 97 N.C. 489; State v. Fairbanks, 115 La. 457; State v. Kearney, 8 N.C. 53; State v McDonald, 4 Port. (Ala.) 449; State v. Nichols, 2 Muro (Del.) 448; Addison v. Ins. Co., 144 Mass 591; Buck v. Danzenbacker, 37 N. J. L. (8 Vroom) 359. (3) The punishment of oppression in office, as provided by Section 4411, takes it completely out of the class of misdemeanors over which the Court of Criminal Correction is given jurisdiction. Secs. 4411, 4413, 4416, 4925, 4924, R. S 1909. (4) The word "forfeiture," as used in penal statutes and in criminal law, is always equivalent to fine or penalty. As it is used in the expression fine, penalty and forfeiture. Sec. 4919, R. S. 1909; Sec. 11, p. 2153, R. S. 1889; Ex parte Anderson, 39 Mo.App. 103; Cooley on Constitutional Limitations (6 Ed.), 752; Blair v. Ridgway, 41 Mo. 63; Chamberlain v. Wood, 88 N.W. 109; State v. Slade, 46 Tenn. (6 Gould) 233; 15 Cyc. 280. (5) An office is a part of the sovereign function of government delegated to an individual to be executed by him for the benefit of the people. Barnhill v. Thompson, 122 N.C. 493; State v. Hocker, 29 Fla. 477; Montgomery v. State, 197 Ala. 372; Patton v. Board of Health, 127 Cal. 388; Lindsay v. Atty. Genl., 33 Miss. 520. (6) An office is not property, neither is the right of office a property right. Primm v. City of Carondelet, 23 Mo. 22; State ex rel. Brown, 44 Mo. 129; State ex rel. Valli, 44 Mo. 30; Mead v. Curators, 47 Mo. 131; Westburg v. City of Kansas, 64 Mo. 503; State v. Shephard, 192 Mo. 509.
Howard Sidener for respondent.
(1) Conviction of oppression in office carries with it disqualification to hold office, loss of suffrage, and forfeiture of office. It requires no action on the part of the trial judge, or jury to attach the disabilities. They follow as a legal result of conviction. Secs. 4413, 4631, 4924, R. S. 1909; Barnett v. Pemiscott Co., 111 Mo.App. 693; Higgins v. Tally, 157 Mo. 280; Anderson v. State, 72 Ala. 187; State ex rel. v. Buckman, 18 Fla. 267; State v. Grant, 79 Mo. 113. (2) The word "and" will be substituted for the word "or," in a statute, to carry out the intention of the Legislature. Thomas v. Grand Junction, 13 Col. App. 83; Pollock v. Laura, 5 F. 133-135; State v. Lentz, 146 P. 932; 2 Sutherland on Statutory Construction (2d Ed.), par. 397; Endlich on the Interpretation of Statutes, par. 303. (3) The St. Louis Court of Criminal Correction has jurisdiction over the crime of oppression in office, and has the power to try the case of State of Missouri v. William Stinger. State v. Lawrence, 45 Mo. 492.
C. Orrick Bishop, Amici Curice; B. H. Charles of counsel.
(1) The St. Louis Court of Criminal Correction is an inferior court, and there is no intendment in favor of its jurisdiction. State v. Anderson, 191 Mo. 134, 139; State ex rel. v. Murphy, 132 Mo. 382; Ex parte O'Brien, 127 Mo. 477, 487. While nominally a court of record, its real jurisdiction is but that of a justice of the peace. Cases supra. The jurisdiction is a prescribed and restricted one, and measured in terms of punishment. Laws 1869, p. 196, sec. 13. (2) The punishment for oppression in office is by fine or imprisonment or both and also disqualification to vote, and also disqualification to hold office, and also forfeiture of office. R. S. 1909, secs. 4411, 4413, 4416. (3) The statute confers no jurisdiction of a crime whereof the punishment is, among other things, a disqualification to hold office. The statute confers no jurisdiction of a crime whereof the punishment is, among other things, a deprivation of the right of suffrage. (4) What is the jurisdiction? Laws 1869, p. 196, sec. 13. (a) It is expressly limited to misdemeanors. (b) It is expressly limited to misdemeanors punishable in certain ways only: by fine, or by imprisonment in the county jail, or by both, or "by any forfeiture." (c) It does not extend to misdemeanors punishable by fine and "any forfeiture;" nor to misdemeanors punishable by imprisonment in jail and "any forfeiture;" but (so far as the last clause may have any meaning whatever) only to these misdemeanors which are punishable "by any forfeiture." (d) The crime of oppression in office is not punishable by forfeiture only. (5) The punishment prescribed for the crime of oppression in office (namely, fine or imprisonment, or both, and also forfeiture of office, disqualification to hold office and disqualification to vote) removes this crime from the jurisdiction of the St. Louis Court of Criminal Correction, and places it in the class denominated infamous crimes, of which the circuit court alone has jurisdiction. Mo. Constitution, Art. 6, sec. 22; R. S. 1909, sec. 3956. It is of no consequence whether felonies and infamous crimes are in the same class. They are both distinguished from misdemeanors (other than misdemeanors connected with the right of suffrage.) Mo. Constitution, art. 8, sec. 10. Whatever may have been the classification of crimes at common law, i. e., infamous or otherwise, is of no consequence. Our statute creates a special class of infamous crimes, and does not extend the jurisdiction of the St. Louis Court of Criminal Correction over them. (6) The word "forfeiture" as used in penal statutes, especially when used in connection with the words "fine" or "penalty," has reference to a forfeiture of property rights, and is equivalent in meaning to fine or penalty. Ex parte Alexander, 39 Mo.App. 108; State v. McConnell, 70 N.H. 150; State v. Rose, 78 Kan. 600; 1 Bouvier's Law Dict. p. 602; R. S. 1909, sec. 4919. The word "forfeiture," as used in this statute, has reference to property rights only. Laws 1866, p. 78, secs. 13 and 25; Laws 1869, p. 194, secs. 11, 17, 27. (7) The language used in the amendment was not "forfeiture of office," but "forfeiture." The statute confers no jurisdiction to forfeit an office.
OPINIONIn Banc
Prohibition.
Relator, William Stinger, seeks to prohibit the St. Louis Court of Criminal Correction from trying a case against him, wherein, by the information of the prosecuting attorney of said court, he is charged, as a member of the Metropolitan Police Department of the City of St. Louis, with wilfully, unlawfully and maliciously arresting and imprisoning Edward Meany, while relator was acting in his official capacity, and with wilfully and unlawfully intending to oppress said Meany and deprive him of his liberty without any warrant to authorize the arrest, knowing Meany had been guilty of no violation of the law; in short, a prosecution for oppression in office, based on Section 4411, Revised Statutes 1909. That statute is as follows:
"Every person exercising or holding any office of public trust who shall be guilty of wilful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor." [Sec. 4411, R. S. 1909.]
As regards punishment for a violation of said section, another section provides:
"Every person who shall be convicted of any of the offenses mentioned in the preceding sections of this article, shall be forever disqualified from holding any office of honor, trust or profit under the Constitution and laws of this State, and from voting at any election; and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office." [R. S. 1909, sec. 4413.]
Still another section says:
"Every officer or person holding any trust or appointment, who shall be convicted of any wilful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment." [R. S. 1909, sec. 4416.]
The jurisdiction of the Court of Criminal Correction was conferred in the act which established it, in these words "Said Court shall have exclusive original jurisdiction of all misdemeanors under the law of the State committed in St. Louis County, the punishment whereof is by fine or imprisonment in the county jail, or both, except in cases of assault and battery and affray which shall continue to be cognizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them." [Laws 1865-1866, p. 78, sec. 10.] That act was amended in 1868 (Laws 1868, p. 265), Section 10 of the original act becoming Section 13 of the amendment, but with a modification which was carried into a second amendment (Laws 1869, pp. 194, 196). In Section 13 of the Act of 1869, the jurisdiction of the court was thus defined: ...
To continue reading
Request your trial