State ex rel. Wright v. McQuillin

• Decision Date: 10 July 1913
• Citation: 158 S.W. 652,252 Mo. 334
• Parties: THE STATE ex rel. JOSEPH A. WRIGHT v. EUGENE McQUILLIN, Judge of Circuit Court
• Court: Missouri Supreme Court

158 S.W. 652

252 Mo. 334

THE STATE ex rel. JOSEPH A. WRIGHT v. EUGENE McQUILLIN, Judge of Circuit Court

Supreme Court of Missouri

July 10, 1913

Writ allowed.

Joseph A. Wright pro se.

The right to resign without the consent of the appointing power is settled. Sec. 5, art. 14, Constitution of Missouri; State ex rel. v. Bus, 135 Mo. 325; Reiter v State ex rel., 51 Ohio St. 74, 23 L.R.A. 684; Olmsted v. Dennis, 77 N.Y. 378. (2) A referee may resign in the absence of a statute forbidding it. 34 Cyc 809; Brooklyn Heights Railroad v. Brooklyn City Railroad, 93 N.Y.S. 849. (3) Where a judge or referee believes himself prejudiced, he has both the right and is under the duty of resigning. 23 Cyc. 590; 34 Cyc. 809; State v. Fort, 178 Mo. 518; State v. Gilham, 97 Mo.App. 296.

Fordyce Holliday & White and Fred Armstrong, Jr., for Eliza P O'Hara.

Eugene McQuillin pro se; Edw. C. Kehr for Berthold & Jennings.

The question is whether the circuit court, which has undoubted jurisdiction of the cause in which the referee is appointed, exceeds its authority in requiring the referee, before accepting his resignation, to file a report of his actions and proceedings as referee in said cause. "The whole subject of reference is governed by the statute." Caulk v. Blyth, 55 Mo. 294. On the 5th of April, 1905, the relator was appointed referee to try all the issues in this cause "and report his findings therein with convenient speed." The statute provides that the referee shall take and subscribe an oath faithfully and fairly to hear and examine the cause and to make a just, impartial and true report according to the best of his understanding. R.S. 1909, sec. 2001; R.S. 1899, sec. 703. The reference in this case is compulsory, and the parties having failed to agree, the court of its own motion appointed the referee. He accepted the appointment and qualified as such. He thereby became an officer of the court appointing him. Higgins v. Wright, 43 Barb. 461. And as such is subject to its orders and control. Ford v. Ford, 53 Barb. 525. It will be perceived that the statute of Missouri contains no provision authorizing the resignation of a referee. Having accepted the appointment it has become his duty to perform the functions which the court has assigned to him. If circumstances should arise which make it impossible for him to discharge that duty, he should report to the court his actions and proceedings up to that time, advising the court of what has been done and what remains to be done, and of the facts making it necessary for him to discontinue his labors; and upon the coming in of such report the court will be in condition to judge whether or not the referee should be relieved from further performance of his duties. The referee remains the court's appointee and subject to its order until his resignation is accepted by the court. Respondent moreover submits that sections 2006 and 2011 of the Code are ample warrant for the rule which the court made on relator to report his actions and proceedings in a case which he has had under submission for practically eight years.

GRAVES, J. Brown and Walker, JJ., dissent.

OPINION

In Banc.

Prohibition.

GRAVES J.

Original action in prohibition. The facts may be thus summarized: On April 5, 1905, there was pending in the circuit court of St. Louis City an action wherein Elizabeth O. O'Hara, executrix of the estate of Henry O'Hara, was plaintiff, and the firm of Berthold & Jennings were defendants. The suit and a counterclaim filed therein by defendants (both in large sums, requiring an extensive accounting between the parties) rendered the case one for compulsory reference. This action fell by allotment to Division No. 6 of the St. Louis City Circuit Court over which respondent has presided since January 1, 1913. On April 5, 1905, respondent's predecessor appointed relator, Wright, as referee in said cause by the usual order in such cases made, and Wright qualified and proceeded to act, but to what extent does not appear in the record before us in the instant case. It does appear that a previous referee had taken all the evidence in the case, and Wright was appointed on the death of the first referee. The facts we take from the respondent's return in so far as they controvert the allegations of the relator's petition. This we do because the case is submitted here upon a motion for judgment on the pleadings. In such case, so far as the facts stated in the return controvert the facts stated in the relator's petition the return must govern.

On December 31, 1912, the referee Wright filed his written resignation in said cause, assigning as one of his reasons therefor that he was biased and prejudiced in the cause as to the plaintiff therein. Other reasons we omit. January 2, 1913, the defendants in the cause pending nisi filed their application for a rule upon the referee to report on said cause. This application on January 24, 1912, the court sustained in a summary way and directed the referee to report forth-with his actions and proceedings in said cause. January 30, 1912, the plaintiff by proper motion and application asked the court to vacate its order of January 24, 1912, and either accept the resignation of the referee, or remove him from office, because of his bias and prejudice against her, and appoint another referee in said cause. This application, which was duly verified by oath, contains among other things the following:

"That said Joseph A. Wright, the present referee, is prejudiced and biased against plaintiff in this cause, and has expressed a prejudice and bias against plaintiff in this cause, and consequently is not a proper person to act as referee herein, and is not competent to render a report on the merits of the cause."

This application, verified as aforesaid by the affidavit of one of plaintiff's counsel, was summarily overruled, and the referee left to make immediate report or take other steps. The referee in this situation applied to this court for a writ of prohibition, and an order to show cause was issued. The return of the respondent does not question the fact of Wright's prejudice and bias. It proceeds on the broad ground that the court can direct Wright to report until such time as the resignation is accepted or he is removed -- and although not in expressed terms, the return in fact denies the right of the referee to resign for any reason. Other matters will be left for the course of the opinion.

I. I am impressed that both parties to this action have an erroneous view of the law of the case. Relator urges an absolute and unqualified right to resign his position, and cites us to section 5 of article 14 of the Constitution, and some case law. The constitutional provision cited has no reference to a referee. This provision has reference to officials of a different kind and character. The section does recognize the absolute right to resign in the class of officers to whom it refers, but relator does not belong to this class. The cases cited likewise do not support the contention, and for the same reasons. Whilst in a sense a referee is an officer of the court, he is not an officer within the meaning of this constitutional provision. A referee is thus defined in 24 Am. & Eng. Ency. Law (2 Ed.), p. 219:

"A referee is a person to whom a cause pending in court is referred by the court, to take testimony, hear the parties, and report thereon to the court, and upon whose report, if confirmed, judgment is entered."

Another authority, 34 Cyc. 774, thus defines "reference" and "referee:"

"A reference is a sending of a pending cause or some question therein by the court in which it is pending to a private person to hear and determine the cause or some question therein or to take evidence and report the same, with or without his opinion thereon, to the court. Before there can be a reference there must be an action pending, and generally only matters connected with the pending suit can be referred. The person to whom the reference is made is usually termed a referee; but various other names are given to such persons in different jurisdictions, there sometimes being, however, a difference between a referee and such other person. The terms auditor, commissioner, arbitrator, examiner, assessor, etc., are often used. A referee is to be distinguished from a master who is appointed only in equity suits pursuant to the old equity practice, although in some jurisdictions a referee in an equity suit appointed pursuant to statute is now termed a referee rather than a master. In so far as such officers perform the duties of a referee, the difference in title may be disregarded and the title of referee is therefore used generically throughout this article except where there is a difference of importance between the particular officer and a referee."

No definition brings a referee within the class of officers held in view by the constitutional provision, supra. On the other hand respondent apparently denies the right to resign in toto. To our mind the true rule lies between the two extremes. I do not believe that a referee should be permitted to resign for mere captious or capricious reasons, but that there is a right to resign for good and sufficient reasons, I have no doubt. The right to resign is in my judgment a qualified, rather than absolute one. In other words it is a right dependent upon the the reasons for its exercise. If the reason assigned is good and valid the right is there, but not so if the reasons are otherwise. The right of the court to remove a referee for good cause, and the right of the referee to resign for good cause, should go hand in hand. If the one is recognized, the other should be recognized. The thing which would authorize the court to remove the...