State on inf. McKittrick v. Wallach

• Decision Date: 05 September 1944
• Docket Number: 38400
• Parties: State of Missouri upon the Information of Roy McKittrick, Attorney General, Relator, v. Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri
• Court: Missouri Supreme Court

182 S.W.2d 313

353 Mo. 312

State of Missouri upon the Information of Roy McKittrick, Attorney General, Relator, v. Stanley Wallach, Prosecuting Attorney of St. Louis County, Missouri

No. 38400

Supreme Court of Missouri

September 5, 1944

Quo Warranto.

Information dismissed.

Roy McKittrick, Attorney General, John S. Phillips and Vane C. Thurlo, Assistant Attorneys General, for relator.

(1) Respondent's duty was to prosecute all law violations including intoxicating and non-intoxicating liquor law infractions. Secs. 4876, 4990, 12942, R.S. 1939; State ex inf. McKittrick v. Graves, 144 S.W.2d 91, 346 Mo 991; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169; State ex inf. McKittrick v Wymore, 119 S.W.2d 1. c. 944, 343 Mo. 98. (2) Respondent's duty to prosecute law violations cannot be diminished by arrangements made with other officers. Secs. 4876, 4990, R.S. 1939; State ex inf. McKittrick v. Williams, 144 S.W.2d 98, 346 Mo. 1003; State ex rel. Dawson v. Martin, 126 P. 1080, 87 Kan. 817; State ex rel. Thompson v. Reichman, 188 S.W. 225, 135 Tenn. 653. (3) Respondent, as prosecuting attorney, was not subject to the direction or control of the Supervisor of Liquor Control. Secs. 4876, 4878, 4990, 4991, 12942, R.S. 1939; Watts v. Gerking, 228 P. 135; People v. Pollock, 77 P.2d 885, 25 Cal.App. 440; State ex inf. McKittrick v. Williams, 144 S.W.2d 98, 346 Mo. 1003; State ex inf. McKittrick v. Graves, 346 Mo. 991, 144 S.W.2d 91. (4) Respondent's actions in prosecuting persons for violations of the non-intoxicating beer laws and the intoxicating liquor laws after the information was filed in this cause, constitute no defense. Speer v. Burlingame, 61 Mo.App. 75; Tucker v. Frederick, 28 Mo. 574, 75 Am. Dec. 139; Watson v. Kentucky & I. Bridge & R. Co., 129 S.W. 341. (5) Respondent, as prosecuting attorney, had the duty to investigate the facts of law violations reported to him by the Supervisor of Liquor Control in addition to examining the transcript sent him by the Supervisor. Secs. 4876, 4878, 4990, 4991, R.S. 1939; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169; State ex inf. McKittrick v. Graves, 144 S.W.2d 91, 346 Mo. 990; State ex inf. McKittrick v. Williams, 144 S.W.2d 98, 346 Mo. 1003. (6) Respondent has forfeited his office in failing to commence and prosecute injunction and criminal actions. It was respondent's duty to (1) commence and prosecute criminal actions and (2) to enjoin and abate liquor law violations. Secs. 4943, 4944, 4946, 12828, 12942, R.S. 1939; State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 655; State ex rel. Wallach v. Ochler, 159 S.W.2d 313. (7) Respondent is not excused from failing to enforce the laws because of local sentiment or prejudice. 18 C.J., 1314, sec. 42; In re Voss, 11 N.D. 540, 40 N.W. 15; State ex rel. v. Howse, 183 S.W. 510; State ex rel. Johnson v. Foster, 32 Kan. 14, 3 P. 537; State ex inf. McKittrick v. Graves, 346 Mo. 1. c. 1001, 144 S.W.2d 91; Speer v. State, 198 S.W. 115. (8) Respondent improperly failed to prosecute persons who were discharged by justices of the peace on felony charges before other justices, and persons who admitted their guilt, and improperly failed to prosecute misdemeanor cases in the circuit court. Secs. 3872, 3893, R.S. 1939; State v. Langford, 293 Mo. 436, 240 S.W. 167; State v. Ancell, 333 Mo. 26, 62 S.W.2d 443; 22 C.J.S., p. 508, sec. 347; State ex rel. McCutchan v. Cooley, 321 Mo. 786, 12 S.W.2d 466. (9) Respondent's failure and refusal to properly enforce the laws as willful and unlawful. State ex inf. McKittrick v. Williams, 144 S.W.2d 98, 346 Mo. 1003; State ex inf. v. Graves, 144 S.W.2d 91, 346 Mo. 991; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169. (10) Respondent is subject to ouster for misconduct in his previous term. Tibbs v. Atlanta, 125 Ga. 18, 53 S.E. 811; State v. Welsh, 109 Iowa 19, 79 N.W. 369; State ex rel. v. Lazarrus, 39 La. Ann. 142, 1 So. 361; State ex rel. v. Bourgeois, 45 La. Ann. 1350, 14 So. 28; State ex rel. Perez v. Whitaker, 116 La. 947, 41 So. 218; Allen v. Tufts, 131 N.E. 573, 17 A.L.R. 274; Hawkins v. Grand Rapids, 192 Mich. 276, 158 N.W. 953; State ex rel. v. Megaarden, 85 Minn. 41, 89 Am. St. Rep. 534, 88 N.W. 412; State v. Hill, 37 Neb. 80, 20 L.R.A. 573, 55 N.W. 794; Territory v. Sanches, 14 N.M. 493, 94 P. 954, 20 Ann. Cas. 109; People ex rel. v. Auburn, 85 Hun, 601, 33 N.Y.S. 165; State ex rel. v. Howse, 134 Tenn. 67, 183 S.W. 510; 17 A.L.R. 274; 131 A.L.R. 1205; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169; State ex inf. McKittrick v. Graves, 144 S.W.2d 91, 346 Mo. 991. (11) The character of the judgment is within the discretion of the court. State ex inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169.

Jacob M. Lashly, Harvey B. Cox and Walter Wehrle for respondent.

(1) The findings made by the Special Commissioner are persuasive as those of a sui generis arm of the court or of a Master in Chancery. State ex inf. Attorney General v. Arkansas Lbr. Co., 260 Mo. 212, 169 S.W. 145; State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 348. (2) Although the overall burden of showing title to the office, when challenged by quo warranto, is upon respondent, nevertheless, in accordance with accepted principles of procedure and fairness, the person making specific charges of misconduct or bad faith would seem to be required to offer evidence which sustains said charges. State ex rel. Coleman v. Trinkle, 70 Kan. 396, 78 P. 854; State ex rel. Hopkins v. Foley, 107 Kan. 608, 193 P. 361; Attorney General v. Pelletin, 240 Mass. 264, 134 N.E. 407. (3) Regardless of where the burden of proof may rest as to the conduct and good faith of respondent, the record herein discloses no misconduct in office on the part of respondent, and therefore the issue is one of fact more than one of law. (4) The Missouri Legislature has enacted a practice act for the administrative handling of liquor control. These laws place primary responsibility for law enforcement in the State Liquor Supervisor, who is furnished with an investigating staff, and is vested with summary powers to suspend and revoke licenses. Chapter 32, Articles 1 and 2, R.S. 1939, Sections 4874-4996; Official Manual of the State of Missouri, 1933-1934, p. 825; U.S. Food Administration Annual Report 10 (1917), H. Dsc. 837, 65th Cong., 2d Ses.; War Industries Price Board, Price Bulletin 3 (1920), p. 145. (5) These laws do not relieve the prosecuting attorney from his law enforcement duties, but authorize him to rely upon the active collaboration of other statutory lawenforcing agencies and to devise an administrative method for a more proficient co-ordination of their activities. Secs. 4876, 4878, 4890, 4990, 4991, R.S. 1939; Laws 1943, H. 621-623; State ex inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98; President's Committee on Administrative Management, Vol. IV, p. 6, U.S. Government Printing Office, 1937. (6) Neither these laws, nor the common law, require the prosecuting attorney to make a personal and independent factual investigation in each one of the cases in which he received a transcript from the State Liquor Supervisor. Secs. 4875, 4878, 4991, R.S. 1939; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Bowers v. Missouri Mut. Assn., 333 Mo. 492, 62 S.W.2d 1058; Wright v. City of Chicago, 48 Ill. 285; State ex rel. Buchanan v. Fulks, 296 Mo. 614, 247 S.W. 129; State ex inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979; State ex inf. McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 98. (7) Regardless of the specific scope of his statutory duties, the record shows that respondent has made and caused his assistants to make personal and independent investigations of liquor law violations, and enlisted the co-operative efforts of the sheriff and other police forces -- as well as of liquor control agents -- in compliance with his duties. (8) In the exercise of his duties, the prosecuting attorney is vested with discretion to determine in good faith whether or not to prosecute, refile or appeal a case in the light of the circumstances, of the evidence and of reasonable expectancy of success, and the record does not show that respondent has ever abused his discretion in any instance. Secs. 4876, 4990, R.S. 1939; Kansas City v. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195; State ex rel. v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979; Watts v. Gerking, 111 Ore. 641, 228 P. 135; State ex rel. Gebrink v. Hospers, 147 Iowa 712, 126 N.W. 818; State v. Marrero, 132 La. 109, 61 So. 136; People ex rel. v. Conway, 121 Misc. 620, 202 N.Y.S. 104; State ex rel. Coleman v. Trinkle, 70 Kan. 396, 78 P. 854. (9) Evidence of results of prosecutions instituted by respondent for offenses committed prior to the filing of the information is admissible to show the results of respondent's investigations. State ex rel. Bourg v. Marrero, 132 La. 110, 61 So. 136; State ex rel. Boynton v. Jackson, 139 Kan. 744, 33 P.2d 118; State ex rel. v. Carl, 245 P. 151; Graham v. Jewell, 204 Ky. 260, 263 S.W. 693. (10) Even if such evidence were improperly admitted, this court has power to decide the case on its merits. State ex inf. Attorney General v. Arkansas Lbr. Co., 260 Mo. 212, 169 S.W. 145. (11) A public official is not subject to ouster for misconduct in a previous term when election has intervened. State ex inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979; State ex inf. McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 91; Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683; Anderson v. Inter-River Drainage, 309 Mo. 189, 274 S.W. 448, 17 A.L.R. 279, 138 A.L.R. 753.

OPINION

Hyde, J.

This case, recently coming to the writer by reassignment,...