State on Information of Connett v. Madget

• Decision Date: 10 December 1956
• Docket Number: No. 45058,45058
• Citation: 297 S.W.2d 416
• Parties: STATE of Missouri, on the Information of Frank D. CONNETT, Jr., Prosecuting Attorney of Buchanan County, Informant, v. John MADGET, Presiding Judge of the Buchanan County Court and A. Walter Smith, Jr., Judge from the Second District, Buchanan County, Respondents.
• Court: Missouri Supreme Court

Page 416

297 S.W.2d 416

STATE of Missouri, on the Information of Frank D. CONNETT Jr., Prosecuting Attorney of Buchanan County, Informant, v. John MADGET, Presiding Judge of the Buchanan County Court and A. Walter Smith, Jr., Judge from the Second District, Buchanan County, Respondents.

No. 45058.

Supreme Court of Missouri, En Banc.

Dec. 10, 1956.

Rehearing Denied Jan. 14, 1957.

Frank D. Connett, Jr., Pros. Atty., James H. Horn, St. Joseph, for informant.

Lyman Field, Clay C. Rogers, James W. Benjamin, Rogers, Field, Gentry & Jackson, Kansas City, for respondents, Randolph & Randolph, St. Joseph, of counsel.

STORCKMAN, Judge.

This is an original proceeding in quo warranto brought by Frank D. Connett, Jr., prosecuting attorney of Buchanan County, as informant and directed against respondents John Madget and A. Walter Smith, Jr., judges of the County Court of Buchanan County. The information charges the respondents jointly and severally with the commission of acts of wilful and malicious oppression, partiality, misconduct and abuse of authority in their official capacities and under color of their offices. The prayer is for a declaration that the respondents have forfeited their offices and for ouster.

The action was instituted June 11, 1955, and on September 12, 1955, the Honorable James D. Clemens, judge of the Circuit Court of the Thirty-fifth Judicial Circuit, was appointed special commissioner to hold hearings and report his findings of fact and conclusions of law. Hearings were held and in his report filed March 26, 1956, the special commissioner found that the respondents had committed certain of the acts charged and had thereby forfeited their respective offices, and should be ousted therefrom. The transcript of the proceedings, consisting of 1282 typewritten pages, is well reported and prepared. The record attests that the special commissioner discharged his duties ably and efficiently. There was commendable cooperation by counsel for both parties. The case has been well briefed and orally argued before the court.

The amended information, in addition to a general allegation, charges seven instances or categories of violations. The charges are well summarized in the report of the special commissioner as follows:

'In submitting the case, Informant relied on the following charges of misconduct, which are numbered as in the First Amended Information, and titled by the Commissioner for sake of clarity and reference:

'Par. 5. The General Charge. Informant charges that Respondents, as judges of the County Court, have jointly and severally committed acts of willful and malicious oppression, partiality, misconduct and abuse of office, all by the following specific acts:

'Par. 6. Exclusion of Judge Gilpin Charge. Informant charges that Respondents have ostracized the third judge of the court, Judge Don Gilpin, and conducted county business at irregular times and in such manner as to prevent Judge Gilpin from participating in the county's business.

'Par. 7. Purchase of Girls' Home Charge. Informant charges that Respondents, knowing that the Judge of the juvenile Court of Buchanan County had recommended the purchase of a rural home, rather than urban property, for a home for juvenile girls, nonetheless purchased a house within the city of St. Joseph; that Respondents caused the County to pay $14,500 therefor, although the market value was $8,000, for which sum the property had been sold to the County's grantor only one week earlier.

'Par. 8. The Players Night Club Charge. Informant charged that Respondent A. Walter Smith, Jr., operated a night club and had five employees there, whom Respondents placed on the county payroll; that the employees were assigned working hours so as not to interfere with their employment at the night club but so as to result in inefficiency and inconvenience to other County employees; that Respondent A. Walter Smith, Jr., gained indirect financial benefit thereby.

'Par. 9. The Lowest and Best Bidder Charge. Informant charges that Respondents failed to afford due opportunity for competitive bidding on purchases of supplies, and exercised personal favoritism in awarding contracts to persons other than the lowest and best bidders. The specificitems items were: (a) A motor grader (b) A vacuum cleaning machine (c) A scrubbing machine (d) Crushed road rock (e) Two Nash station wagons.

'Par. 10. The Boycott Charge. Informant charges that Respondents ordered other county officials to refrain from making purchases from certain business firms and threatened to withhold payment if such purchases were made. The specific firms involved were: (a) Louis Marek (b) Reagan-Whitaker Insurance Agency (c) Hillyard Chemical Company (d) Woodbury Chemical Company (e) St. Joseph Chemical & Brush Company (f) Mannschreck Book Store.

'Par. 11. The Bond Premium Charge. Informant charges that the Buchanan County Collector had negotiated with two local agents for his official bond, but that Respondents declined to approve such bond unless a third local agent, Leo Roseler, received one-third of the agents' commission.

'Par. 12. The Defense Fund Charge. Informant charges that after the filing of the original Information herein, the Respondents coerced county employees to pay money into a fund to be used to pay Respondents' counsel for defending this action.'

For present purposes the facts are sufficiently stated in the special commissioner's finding of fact as follows:

'The Commissioner recommends adoption by the Court of these findings of fact:

'The Respondents.

'Respondents John Madget and A. Walter Smith, Jr., were elected as Presiding Judge and Associate Judge, respectively, of the County Court of Buchanan County, and took office January 1, 1955. Both were Democrats and neither had held such office before.

'Respondent Madget was 43 years old. He had previously held public office as Representative in the Missouri General Assembly and as Public Administrator of Buchanan County. He is mature and intelligent.

'Respondent Smith was 41 years old. He had experience in business and at all times involved here he operated the Players Night Club in St. Joseph. Respondent Smith is keenly intelligent and vigorous.

'Buchanan County and The County Court.

'Buchanan County is a County of the Second Class with a population of over 90 thousand. The County Court consists of a Presiding Judge and two associate judges. The other member of the Court is Associate Judge Don Gilpin, a Republican, who has held such office since January 1, 1953.

'Prior to January 1, 1955, the County Court was composed of two members of the Republican Party and one of the Democratic Party. On that date, Respondent Madget succeeded a Republican, Respondent Smith succeeded another Democrat and Judge Gilpin succeeded himself. Thus, upon the election of Respondents, the Court changed from Republican to Democratic 'control'. Employees of the highway department the county health unit, engineering department and courthouse janitors, eighty-some in all, are appointed by the county court. By tacit understanding over many years these employees serve for two-year terms, and at the end of each term the employees tender their resignations. January 1, 1955, saw a 'change in political complexion' of Buchanan County, so the old employees resigned and new employees were appointed by Respondents. Not only the appointment of employees, but the awarding of court business, was not without a partisan tinge. Andrew Jackson's credo 'to the victor belong the spoils' was not without its advocates in Buchanan County. In past administrations, when one of the county judges belonged to a political party different from the other two judges, the 'party line' was often followed, even to the extent of the 'minority judge' not joining the 'majority judges' in signing court records and official documents. The inevitable result of such a schism is to deprive some of the people of representation, but such a situation is not, of course, peculiar to Buchanan County. Such was the climate in which Respondents found themselves at the beginning of their term, more realistic than idealistic.

'The Exclusion of Judge Gilpin Charge.

'Prior to January 1, 1955, the 'regular hours' of sessions of the County Court were from 10 A.M. to 4 P.M., with a recess for lunch, and these hours seemed to continue in force. From the outset, Judge Gilpin was not taken into full confidence by Respondents. The County Court records and purchase orders were generally signed only by Respondents. (Some of these forms had places for only two signatures.) The Respondents failed to seek the counsel of Judge Gilpin on all county business, and Judge Gilpin did not press the matter. Soon, Judge Gilpin began attending sessions tardily, and rarely attended afternoon sessions. Previously, bids were received at 4 P.M., and laid over until the next day, but Respondents opened bids and acted upon them when received. Judge Gilpin was rarely present at such times, although the 'dead-line' for bids was, of course, known to Judge Gilpin as a matter of public knowledge.

'There was no evidence that Respondents conducted county business at irregular times.

'From the outset, Judge Gilpin realized that he could not control the action of the County Court in the face of united opposition, and he accepted the situation. Respondents did not act in the best public interest by not encouraging Judge Gilpin's participation, nor did he by petulantly declining to be present to represent his constituents. Judge Gilpin was not so much a pariah as he was a recluse.

'The Purchase of the Girls' Home Charge.

'Prior to 1955, juvenile delinquent girls were detained in a 5-room house at the outskirts of St. Joseph. The home was in poor repair, vermin infested, and subject to overflow from sewage facilities. Early in January, Respondents conferred with the 3 Circuit Judges of Buchanan County about the home, and they inspected it. The...