State on Inf. of McKittrick v. Graves
| Decision Date | 09 November 1940 |
| Docket Number | 36717 |
| Parties | State of Missouri on the information of Roy McKittrick, Attorney General, Relator, v. Waller W. Graves, Prosecuting Attorney of Jackson County |
| Court | Missouri Supreme Court |
Rehearing Denied November 9, 1940.
Ouster ordered.
Roy McKittrick, Attorney-General, J. E. Taylor and Robert L. Hyder, Assistant Attorneys General, for relator.
(1) Respondent may be ousted for a prior term, or for the present term, because of misconduct during such prior term. (a) An officer may be ousted for misconduct during a prior term. State ex inf. v. Wymore, 132 S.W.2d 988; Sec. 11207, R. S 1929; 17 A. L. R., pp. 279, 285; Comant v. Grogan, 6 N.Y.S. 322; People ex rel. v. Auburn, 33 N.Y.S. 165; Thurston v. Clark, 107 Cal. 285, 40 P. 435; Woods v. Varnum, 85 Cal. 639, 24 P. 843; State ex rel. v. Henschel, 103 Kan. 511, 175 P. 395; State ex rel. v. Patton, 131 Mo.App. 633; State ex rel. v Sheppard, 192 Mo. 635; 17 A. L. R. 285; Allen v Tufts, 131 N.E. 573. (b) Respondent is guilty of misconduct in office and subject to be removed during his present term for failure to prosecute violations of the criminal laws during prior terms, but not barred by the Statute of Limitations. Breckenridge v. State, 4 L. R. A. 360, 11 S.W. 630, 27 Tex.App. 513; Comant v. Grogan, 6 N.Y.S. 322; State ex rel. v. Hasty, 184 Ala. 121, 50 L. R. A. (N. S.) 553, 63 So. 559; State ex rel. Gill v. Watertown, 9 Wis. 254. (c) The office of respondent was forfeited during his prior terms for misconduct during such terms. Sec. 11202, R. S. 1929; State ex rel. Evans v. Gordon, 149 S.W. 638, 245 Mo. 12; State ex rel. Chapman v. Walbridge, 54 S.W. 447, 153 Mo. 194; State ex inf. v. Wymore, 132 S.W.2d 979. (2) The commissioner did not err in the admission of evidence on the part of relator. (a) The newspaper articles offered by relator were properly admitted. State ex inf. v. Wymore, 132 S.W.2d 984; Green v. Water Co., 101 Wis. 258, 77 N.W. 722, 43 L. R. A. 117; Reilly v. H. & St. J. Ry. Co., 7 S.W. 407, 94 Mo. 608; Conover v. Berdine, 33 Am. Rep. 496, 69 Mo. 126; Crane v. Mo. Pac. Ry. Co., 87 Mo. 596; Putnam v. Gunning, 162 Mass. 554; Commonwealth v. Robinson, 67 Mass. 563; Roberts v. Spencer, 123 Mass. 398; 22 C. J., pp. 285, 286. (b) The judgments and decrees were properly admitted by the commissioner. St. Louis Mut. Life Ins. Co. v. Cravens, 69 Mo. 77; Foster v. Nowlin, 4 Mo. 26; State v. Gleim, 41 P. 999; Terry v. State, 233 S.W. 675. (3) The evidence is amply sufficient to oust respondent from office for neglect of duty within the meaning of Section 11202, Revised Statutes 1929. (a) Respondent never reached the point of exercising discretion in regard to the institution of prosecutions for violations of the liquor and gambling laws and laws against prostitution. The discretion exercised, if any, in dismissing criminal actions and in failing to prosecute vote fraud cases was arbitrarily exercised in bad faith. State ex inf. McKittrick v. Wymore, 132 S.W.2d 986; Sec. 11836, R. S. 1929. (b) Respondent would not have had to be a detective, investigator, spy or informer to have learned of the violations shown by the evidence. State ex inf. McKittrick v. Wymore, 132 S.W.2d 986. (c) The respondent was guilty of neglect of duty within the meaning of Section 11202, Revised Statutes 1929, and the evidence is amply sufficient to justify the court in removing him from office. Sec. 11202, R. S. 1929; 31 Missouri Digest, pp. 887, 888; Reeves v. State, 258 S.W. 583; State ex rel. Dawson v. Martin, 126 P. 1082, 87 Kan. 817; State ex inf. v. Wymore, 132 S.W.2d 986; State v. Martin, 87 Kan. 817, 126 P. 1080; Barbee v. Murphy, 149 Va. 406, 141 S.E. 240; State v. Reichman, 135 Tenn. 653, 188 S.W. 228; Ex parte January, 246 S.W. 241; Hebert v. Louisiana, 272 U.S. 312, 71 L.Ed. 111, 47 S.Ct. 103; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979; State ex rel. v. Foster, 32 Kan. 43; In re Voss, 11 N.D. 549; Speer v. State, 198 S.W. 115.
John G. Madden, James E. Burke, Jacob Brown and Madden, Freeman & Madden for respondent.
(1) Respondent cannot be ousted from office for alleged misconduct during a prior term. Secs. 11202, 11207, R. S. 1929; State v. Blake, 280 P. 833; In re Fudula, 147 A. 68; State v. Council, 25 N. J. L. 536; Montgomery v. Nowell, 183 Ark. 1116; Conant v. Grogan, 6 N.Y.S. 322; Thurston v. Clark, 40 P. 435; State v. Henschel, 175 P. 393; Jacobs v. Parham, 298 S.W. 483; State ex rel. v. Hasty, 63 So. 559; In re Advisory Opinion, 60 So. 337; State ex rel. v. Patton, 131 Mo.App. 628. (2) The commissioner erred in the admission of incompetent evidence and in predicating his findings adverse to respondent thereon. State ex inf. v. Wymore, 132 S.W.2d 979; Shields v. Railways, 264 S.W. 890; Shafer v. Railways, 201 S.W. 611; Green v. Water Co., 101 Wis. 258, 77 N.W. 722, 43 L. R. A. 117; 10 R. C. L. 1160; 20 R. C. L. 352; Frink v. Fire Ins. Co., 90 S.C. 544; Yocum v. Morice, 4 Phila. 106; Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 A. 244; English-American Co. v. Hiers, 112 Ga. 823, 38 S.E. 103; Beltzhoover v. Blackstock, 3 Watts, 20, 27 Am. Dec. 330; Clark v. Ricker, 14 N.H. 44; American Ins. Co. v. Landfare, 56 Neb. 482, 76 N.W. 1068; Watkins v. Peck, 13 N.H. 360, 40 Am. Dec. 156; Walker v. Laighton, 31 N.H. 111; Sloane v. Boyer, 95 N.Y.S. 531; King v. Paterson, 29 N. J. L. 82; Weaver v. Craighead, 104 Pa. St. 288; Lincoln v. Wright, 23 Pa. St. 76, 62 Am. Dec. 316; Rowley v. Horne, 3 Bing. 2, 11 E. C. L. 3; Bennett v. Accident Corp., 255 S.W. 1076; Utah Min. Co. v. Utah Apex Co., 285 F. 249; State v. Gilmore, 81 S.W.2d 431; Smith v. United States, 157 F. 721; Conant v. Grogan, 6 N.Y.S. 322; Crinnian v. United States, 1 F.2d 643; Marshall v. United States, 197 F. 511; Fish v. United States, 215 F. 544; Grantello v. United States, 3 F.2d 117; State v. Buxton, 22 S.W.2d 635. (3) The evidence is insufficient to establish that respondent was guilty of willful or corrupt neglect of duty as charged. (a) Respondent was at all times vested with broad discretion in initiating, prosecuting or dismissing criminal actions. 18 C. J. 1303; Watts v. Gerking, 228 P. 135, 34 A. L. R. 1489; United States v. Woody, 2 F.2d 262; State ex rel. v. Lamb, 237 Mo. 451; State v. Ransberger, 106 Mo. 135. (b) Respondent by controlling decisions of this court was prohibited from becoming a detective, investigator, spy or informer. State v. Trinkle, 70 Kan. 396; State v. Foster, 32 Kan. 14; In re Voss, 90 N.W. 15, 11 N.D. 540. (c) A prosecuting attorney cannot be guilty of willful neglect of duty without having personal knowledge of the law violations charged and failing to prosecute such violations by reason of an evil, criminal or malign intent. Vroom v. Thompson, 55 S.W.2d 1024; Hargrove v. United States, 67 F.2d 820; Phillips v. State, 181 P. 713, 75 Okla. 46; Shields v. State, 184 Okla. 618, 89 P.2d 756; State v. Manning, 259 N.W. 213, 220 Iowa 525; State ex rel. v. Foley, 107 Kan. 608; State v. Grassle, 74 Mo.App. 313; State ex rel. v. Meek, 148 Iowa 671, 127 N.W. 1023; State ex rel. v. Naumann, 239 N.W. 93, 81 A. L. R. 483; Fox v. Ohio, 5 How. 410, 12 L.Ed. 213; United States v. Amy, 14 Md. 149; United States v. Palan, 167 F. 991; United States v. Holt, 270 F. 639; People ex rel. McMahon v. Westchester County, 1 Park. Crim. Rep. 659; In re Oppenstein, 289 Mo. 421; State ex rel. v. O'Malley, 117 S.W.2d 319; Sec. 10315, R. S. 1929.
Original action in quo warranto commenced by the attorney general filing an information on May 10, 1939, by which he seeks to oust the respondent from the office of Prosecuting Attorney of Jackson County. After the respondent filed answer to amended information we appointed a special commissioner to hear the evidence and report his findings of fact and conclusions of law. The commissioner, so appointed, has filed his report finding that the respondent has forfeited his office through failure to perform the duties thereof and recommending that a judgment of ouster be entered. Respondent excepts to this report.
The evidence discloses that the respondent served as Prosecuting Attorney of Jackson County for two terms from 1935 to 1938. In the latter year he was elected for a third term which he is now serving and which commenced January 1, 1939, and would in the ordinary course of events terminate December 31, 1940. The amended information charges three classes of alleged misconduct of respondent: (1) failure to enforce the laws against gambling, prostitution and illegal sale of intoxicating liquor; (2) the wilful and corrupt entering of nolle prosequi in certain criminal cases in which, according to the relator, there was ample evidence to warrant further prosecution; and (3) failure to prosecute persons guilty of violation of election laws.
A considerable amount of evidence was received by the commissioner, over the objection of respondent, as to alleged acts and omissions of respondent during the two terms of office which preceded his present term. In his report the commissioner reached the conclusion that an order of ouster cannot be based upon misconduct alleged to have occurred during a former term of the respondent officer. His recommendation of removal is therefore based exclusively upon evidence of occurrences during the respondent's present term. Respondent contends that evidence of occurrences during previous terms should not have been received at all; while relator assumes the position that respondent might be ousted for misconduct in office before his present term commenced. The case of State ex inf. McKittrick v Wymore, 345 Mo. 169, 132 S.W.2d 979, differs somewhat on the facts from the present case. There the information was filed by the attorney general during one term of office of the respondent and...
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