State ex rel. Wright v. Carter

• Decision Date: 03 February 1958
• Docket Number: No. 22703,22703
• Citation: 311 S.W.2d 580
• Parties: STATE of Missouri ex rel. Scott O. WRIGHT, Prosecuting Attorney of Boone County, Missouri, Relator-Respondent, v. Don C. CARTER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 580

311 S.W.2d 580

STATE of Missouri ex rel. Scott O. WRIGHT, Prosecuting Attorney of Boone County, Missouri, Relator-Respondent, v. Don C. CARTER, Defendant-Appellant.

No. 22703.

Kansas City Court of Appeals, Missouri.

Feb. 3, 1958.

Alexander, Welliver & Wayland, Columbia, Kemp, Koontz, Clagett & Norquist, Kansas City, for defendant-appellant.

Scott O. Wright, Columbia, for relator-respondent.

MAUGHMER, Commissioner.

This is a proceeding brought by the Prosecuting Attorney of Boone County to recover a penalty from the defendant (appellant) for failure to file a statement of his campaign expenses in his uncontested and successful race for township member of a political party county committee. The jury, under direction of the court, returned a verdict for relator and against defendant. The jury assessed the sum of $50 as penalty. Defendant's motions for directed verdict at the close of plaintiff's case, at the close of all the evidence, and after judgment were each overruled. Defendant's motion for a new trial was denied and an appeal duly perfected. Since the amount in dispute is less than $7,500 and as the subject matter is not jurisdictionally lodged with the Supreme Court, jurisdiction lies with this court, Article V, Sections 3 and 13, Constitution, V.A.M.S., Section 477.040, V.A.M.S.

On February 28, 1956, defendant filed with the county clerk his formal written Candidate's Declaration, announcing himself as a candidate for Committeeman for Bourbon Township, Boone County, Missouri on the Democratic ticket to be voted for at the primary election Tuesday, August 7, 1956. The county clerk listed defendant's candidacy in the Notice of Primary Election as published in two newspapers. At the primary election held August 7, 1956, defendant's name appeared on the official ballots. Thereafter, the official election returns were canvassed. On August 14, 1956, the county clerk certified and transmitted to the chairman of the Boone County Democratic Central Committee a 'Complete return of the Primary Election held in Boone County, Missouri on Tuesday, August 7, 1956, for candidates of the Democratic Party', as required by Section 120.500, V.A.M.S. This return listed defendant as receiving 319 votes for committeeman. No other person was listed as receiving any votes for such office in Bourbon Township. The county clerk issued no certificate of election as committeeman to defendant. Defendant, on the third Tuesday in August, 1956, met with other members and participated in the organization of the county committee. Continuously since he has assumed and exercised the functions of that office. He has never filed with the county clerk or with the recorder of Boone County, a sworn statement as to the sums of money expended or promised by him in endeavoring to secure his election which the relator contends he was required to file by reason of the provisions of Section 129.110, V.A.M.S. Defendant testified that he expended no money in his campaign.

Absent a legislative requirement, no candidate for office need make any statement as to his campaign expenditures. Therefore, we look to the statutes. Section 129.110, V.A.M.S. reads as follows:

'Every person who shall be a candidate before any caucus or convention, or at any primary election, or at any election for any state, county, city, township, district or municipal office, or for senator or representative in the General Assembly of Missouri, or for senator or representative in the Congress of the United States, shall, within thirty days after the election held to fill such office or place, make out and file with the officer empowered by law to issue the certificate of election to such office or place, and a duplicate thereof with the recorder of deeds for the county in which such candidate resides, a statement in writing, which statement and duplicate shall be subscribed and sworn to by such candidate before an officer authorized to administer oaths, setting forth in detail all sums of money, except all sums paid for actual traveling expenses, including hotel or lodging bills, contributed, disbursed, expended or promised by him, and, to the best of his knowledge and belief, by any other persons or person in his behalf, wholly or in part, in endeavoring to secure or in any way in connection with his nomination or election to such office or place, or in connection with the election of any other persons at said election, and showing the dates when and the persons to whom and the purposes for which all such sums were paid, expended or promised. Such statement shall also set forth that the same is as full and explicit as affiant is able to make it. No officer authorized by law to issue commissions or certificates of election shall issue a commission or certificate of election to any such person until such statement shall have been so made, verified and filed by such persons with said officer'.

The defendant presents six assignments of error. He asserts that this case should not have been tried as a civil case and cites State v. Harold, 364 Mo. 1052, 271 S.W.2d 527 in support of such position. That decision by the Supreme Court merely holds that a juvenile case, though not a 'criminal case', is, nevertheless, not a 'civil case' with the state as a party so as to confer jurisdiction upon the Supreme Court. Section 129.120, V.A.M.S. provides that any person failing to comply with the provisions of Section 129.110, supra, shall be liable to a fine not exceeding $1,000 to be recovered in an action brought in the name of the state by the Attorney General or by the Prosecuting Attorney with the amount of the fine to be fixed by the jury. We believe that under this section an action to recover the fine is not strictly criminal but remedial as well, and the penalty may be recovered in a civil action as the offense is not denounced as a misdemeanor. State ex rel. Jones v. Howe Scale Co. of Illinois, 182 Mo.App. 658, 166 S.W. 328; State ex rel. Howell County v. West Plains Telephone Co., 232 Mo.App. 579, 135 S.W. 20.

The other five assignments complain generally of the refusal of the court to direct a verdict for the defendant. Particularly, we are told, this should have been done because (1) Political party committeemen are not specifically named in the statute. (2) Such committeemen could not file such a statement 'with the officer empowered by law to issue certificates of election' because no officer is designated to issue such certificates, (3) One of the penalties, namely, loss of salary or emolument could not be applied since the office carries no salary, (4) The defendant expended no money and, therefore, it was impossible for him to list his expenditures and (5) A party committeeman is not a public officer nor is the office within the purview of Section 129.110. These last five assignments can be discussed together.

We are here concerned with a statute generally known as the Corrupt Practices Act, V.A.M.S. Sec. 129.010 et seq. It is strictly penal in its nature and must be strictly construed. State ex rel. Crow v. Bland, 144 Mo. 534, 46 S.W. 440, 41 L.R.A. 297; State ex inf. Burgess ex rel. Hankins v. Hodge, 320 Mo. 877, 8 S.W.2d 881, loc. cit. 884. Political party committeemen are not specifically named in the statute, but neither is any office or candidate specifically named save only senators and representatives, both Federal and State. The fact that committeemen are not specifically named is not of itself sufficient to exclude candidates therefor from the provisions of the Act.

Defendant says the Act does not apply to him because he receives no salary. A defeated candidate for senator or sheriff receives no salary, but as a person who was a candidate he is required to file a statement. We rule this point against defendant.

Defendant asserts that no officer is empowered to issue a certificate of election for committeeman and, therefore, there was no designation of the office in which his statement should have been filed. Section 111.710, V.A.M.S. provides that the county clerk shall, within five days after the close of each election, '* * * examine and cast up the votes given to each candidate, and give to those having the highest number of votes certificates of election'. The evidence here shows that the county clerk cast up the votes, certified the totals, including the votes for defendant as committeeman and delivered same to Mr. Warren D. Welliver, Chairman of the Boone County Democratic Central Committee, as required by law. We express no opinion as to whether this 'return of votes' amounted to a certificate of election as to defendant, or whether the clerk should have sent defendant an individual certificate of election. We do say that if the Act applies to committeemen, the law sufficiently provides that the statement shall be filed with the county clerk and a copy with the recorder of deeds.

We find no merit in defendant's contention that he is exempt because he neither spent nor promised to spend any money. The Act does not provide that every candidate who spends shall file, but rather that every candidate shall file. In McKinney v. Barker, 180 Ky. 526, 203 S.W 303, loc. cit. 304, L.R.A.1918E, 581, the court said: '* * * it is not a sufficient excuse for a failure to file it that the candidate had spent no money in his campaign, because it is as necessary that such fact be divulged before the election as it is to make known sums that had been spent, if any, for legitimate purposes. The same reasoning would justify a failure to file the certificate when the candidate, although he had used campaign funds, had done so within the limitations and for the purposes prescribed by the statute; i. e., that he had not violated the statute, and the necessity for the statement was removed'.

In Owen v. Brooks, 300 Ky. 743, 190 S.W.2d 326, the court held the Corrupt Practices Act was applicable to a school director, and it was no excuse that he had...