State v. Dearing

• Citation: 162 S.W. 618,253 Mo. 604
• Parties: STATE ex rel. LETCHER v. DEARING, Circuit Court Judge.
• Decision Date: 24 December 1913
• Court: Missouri Supreme Court

162 S.W. 618

253 Mo. 604

STATE ex rel. LETCHER v. DEARING, Circuit Court Judge.

Supreme Court of Missouri.

December 24, 1913.

1. PROHIBITION (§ 25)—RETURN—EFFECT.

Where the return to a petition for prohibition admitted the allegations of fact contained therein, it is properly treated as a demurrer.

2. QUO WARRANTO (§ 3)—SCOPE OF REMEDY.

Quo warranto will not lie where there is any other plain and adequate remedy.

3. QUO WARRANTO (§ 14)—FORFEITURE OF OFFICE.

Const. art. 12, § 24, prohibits any railroad company from granting free passes or tickets at a discount to members of the General Assembly, the Board of Equalization, or any state, county, or municipal officer, and makes the acceptance of passes by such officials a forfeiture of the office. Article 14, § 5, provides that all officers shall hold office during their official terms until their successors are duly elected, appointed, or qualified; and section 7 provides that the General Assembly, in addition to other penalties, shall provide for removal from office of county, city, and township officers on conviction of willful, corrupt, or fraudulent violation or neglect of official duty. Held that the constitutional provision was not self-executing, and a county official who accepted free passes did not forfeit his right, so that he could be ousted under Rev. St. 1909, § 2631, providing for informations by way of quo warranto in case any person shall intrude into office, but he must be proceeded against under section 4814, providing that any officer who shall accept free passes or reduced tickets shall be deemed guilty of a misdemeanor, and upon conviction thereof forfeit his office, and, if no provision be made by law for the removal of such officer by impeachment, the court trying the cause shall adjudge the defendant to have forfeited his office and declare the same vacant, but that no court other than the circuit court or criminal court of record shall have power to adjudge any such office to be forfeited or vacant.

Woodson and Brown, JJ., dissenting.

En Banc. Prohibition by the State, on the relation of Isaac A. Letcher, against Elbridge M. Dearing, Judge of the Circuit Court. Provisional writ made permanent.

Edward T. Eversole, of Potosi, and James F. Green, of St. Louis, for relator. W. A. Cooper, of Potosi, and H. B. Irwin, of De Soto, for respondent.

GRAVES, J.

Original action in prohibition. Relator seeks to prohibit the respondent, as judge of the Washington county circuit court, from now proceeding to try him upon a certain information in the nature of quo warranto lodged against him by the prosecuting attorney of Washington county. Relator, Letcher, is the duly qualified collector of revenue of Washington county. The information in the nature of quo warranto seeks to oust him from that office for reasons thus stated in the petition: "That the said Isaac A. Letcher, during his said term of office as collector of the revenue aforesaid, did at the county of Washington and state of Missouri unlawfully accept from the Missouri Pacific Railway Company, a railroad corporation organized under the laws of the state of Missouri, and engaged in owning and operating a line of steam railroad in the state of Missouri, a free pass, which said free pass entitled the said Isaac A. Letcher to be carried as a passenger without charge over the line of said railway company in the state of Missouri, and did use the same in traveling as a passenger on said railroad in the state of Missouri during his said term of office. That the said Isaac A. Letcher on the ____ day of January, 1913, and during his term of office as aforesaid of said county, did unlawfully accept from the railway company aforesaid a pass and ticket at a discount, which entitled him to be carried as a passenger over the line of said railway company in the state of Missouri, and thereafter and during his said term of office did use same in traveling as a passenger on said railway in the state of Missouri. That the said Isaac A. Letcher, during his said term of office as collector of the revenue aforesaid, did at the county of Washington and state of Missouri unlawfully accept from the St. Louis, Iron Mountain & Southern Railway Company a railroad corporation organized under the laws of the state of Missouri, and engaged in owning and operating a line of steam railroad in the state of Missouri, a free pass, which said free pass entitled the said Isaac A. Letcher to be carried as a passenger without charge over the line of said railway company in the state of Missouri, and did use the same in traveling as a passenger on said railroad in the state of Missouri during his said term of office. That the said Isaac A. Letcher on the ____ day of January, 1913, and during his term of office as aforesaid of said county, did unlawfully accept from the railway company aforesaid a pass and ticket at a discount which entitled him to be carried as a passenger over the line of said railway company in the state of Missouri, and thereafter and during his said term of office did use same in traveling as a passenger on said railway in the state of Missouri. Wherefore the said Isaac A. Letcher, by the acceptance and use of the passes and tickets aforesaid or any or either of them, has, by virtue of section 24 of article 12 of the Constitution of the state of Missouri, forfeited his said office of collector of the revenue of the county of Washington and state of Missouri, and is now unlawfully holding said office and still does usurp at the county of Washington and state of Missouri, without legal right so to do, the rights, liberties, privileges, and franchises of said office, and threatens to continue so to do, in contempt of and to the great damage and prejudice of the authority of the state of Missouri aforesaid. Whereupon the said prosecuting attorney in this behalf prosecutes for the state of Missouri and prays the consideration of the court here in the premises, and that due process of law may be awarded against the said Isaac A. Letcher in this behalf to make answer to the state of Missouri, and show by what authority he claims to have, use, and enjoy the rights, liberties, privileges, and franchises aforesaid."

Relator unsuccessfully demurred to this information, and respondent was threatening him with a trial thereon, when the proceeding was stopped by our order to show cause. Such steps as were taken in the quo warranto case were taken at the March term of said court. By relator's petition here it further appears that the prosecuting attorney of Washington county, at said March term, 1913, of that court, also filed a criminal information against relator, wherein relator was charged with a violation of section 4814, R. S. 1909, in accepting a free railroad pass. Upon this information the relator here was arrested, but the cause was continued until the August term, 1913, for trial. The quo warranto case was docketed for hearing June 16, 1913, at the March term.

In his application for our writ the relator thus succinctly states his position: "Petitioner further states that respondent, as judge of the circuit court, has no jurisdiction to proceed to the trial of the cause on information in the nature of quo warranto, which is now pending against him in the circuit court of Washington county, Mo., and said respondent judge is precluded from entertaining said proceeding in quo warranto, and from entering any judgment therein against relator; that relator is entitled as of right to a trial by jury in the cause which has been continued until the August term of the circuit court of Washington county, and respondent is without jurisdiction to entertain or hear said proceeding by quo warranto, which is set for hearing on the 16th of June, for the reason that under the laws of Missouri, to wit, section 4814, it is provided that only upon conviction of the offense named in said section can a forfeiture of office be declared, and only after conviction can petitioner be ousted from the office which he holds as collector of the revenue of Washington county, and he therefore avers that respondent should be precluded and restrained from hearing and further considering said quo warranto against him until there has been a trial and judgment in the case filed by said prosecuting attorney against your petitioner, alleging a violation of section 4814, Revised Statutes of Missouri 1909; that said contemplated proceeding and trial by respondent on the 16th of June, 1913, and before a hearing of the case against your petitioner at the August term, 1913, is in excess of the jurisdiction of respondent; and, if said cause is tried on the 16th of June, 1913, your petitioner will be precluded and prevented from obtaining a right guaranteed him by the Constitution of the state of Missouri, to wit, a trial by a jury on the question of his guilt or innocence as to the same matter upon which respondent proposes and intends to try him, as above stated, on the 16th of June, 1913. Petitioner avers that he is without adequate remedy in the premises to prevent the exercise of jurisdiction by respondent other than by prohibition to be issued by this honorable court. Wherefore petitioner prays that the court will issue against respondent its writ of prohibition restraining and preventing him from hearing or taking further action in said cause against your petitioner, set for trial on Monday, June 16, 1913, and that upon final hearing said prohibition may be made absolute."

The return of respondent concedes the material facts involved in the case, and, upon the filing of the return, relator moved for judgment. In this situation of the case, we borrow the facts from the return, if in any particular they differ from those stated by relator. The case is one of law rather than of fact, and the necessary facts will be more fully stated in the course of the opinion. This sufficiently states the case.

I. The return of the respondent admits...