State v. McAllister

• Decision Date: 22 December 1919
• Docket Number: No. 21565.,21565.
• Citation: 280 Mo. 258,217 S.W. 60
• Parties: STATE ex rel. McALLISTER, Atty. Gen., v. SANDERSON.
• Court: Missouri Supreme Court

217 S.W. 60

280 Mo. 258

STATE ex rel. McALLISTER, Atty. Gen., v. SANDERSON.

No. 21565.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Proceeding in quo warranto by the State, on the relation of Frank W. McAllister, Attorney General, to remove Judson Sanderson from the office of Prosecuting Attorney of Callaway County. Demurrer to information sustained.

Frank W. McAllister, Atty. Gen., and S. E. Skelley and John T. Gose, Asst. Attys. Gen. (Charles W. German, of Kansas City, of counsel), for relator.

R. D. Rodgers, of Mexico, Mo., and McBaine, Clark & Rollins, of Columbia, for respondent.

GOODE, J.

This is an original proceeding in quo warranto, instituted by the Attorney General, for the purpose of removing the respondent from the office of prosecuting attorney of Callaway county. The case stands for decision upon a demurrer to the information, which need not be set out in full. The reason assigned for the demurrer is that the information states no cause of action, a proposition rested upon a single fact, which will appear presently. According to the information respondent was elected prosecuting attorney of Callaway county in 1918, and qualified and entered upon the discharge of the duties of the office January 1, 1919. On March 28th of that year he was suspended from the practice of law in Callaway and the other counties of the state for 12 months from that date, by a judgment of the circuit court of Audrain county, whither a proceeding to disbar him had been sent by a change of venue from Callaway county. On the same day (March 28, 1919) respondent was granted an appeal from the judgment to this court, and gave a duly approved appeal bond in the `sum of $500; but the Audrain court made no order to suspend its judgment or stay the execution of it. In view of those and other formal facts, the Attorney General informs this court that respondent had unlawfully usurped, held, and exercised said office since March 28, 1919, and still usurped it at the date the information was filed. Respondent's position is that, as he was granted an appeal and his bond approved, the judgment of the trial court was superseded pending the appeal, and he has the right to practice law, at least so far as performing the duties of his office constitute practicing, until the appeal is determined. The judgment against respondent was rendered prior to the act of 1919, changing in some matters the statute relating to the suspension and removal from practice of attorneys; but those modifications in no way affect the decision of this case. Laws 1919, p. 151.

The statute regarding the qualifications a prosecuting attorney must possess is this one:

"At the general election to be held in this state in the year A. D. 1880, and every two years thereafter, there shall be elected, in each county of this state, a prosecuting attorney, who shall be a person learned in the law, duly licensed to practice as an attorney at law in this state and enrolled as such, at least twenty-one years of age, and shall hold his office for two years, and until his successor is elected, commissioned and qualified." R. S. 1909, § 1000.

The information is silent as to whether respondent had been duly licensed to practice law in this state previous to the judgment of disbarment, and at the date of his election; so it is to be presumed he had been. Therefore he was qualified for the office when elected, which is all the cited section requires, if enforced literally. The requirement as to age makes it clear, were it otherwise doubtful, that the primary object of the law was to prescribe the qualifications a person must possess when elected prosecuting attorney, to entitle him to the office after he is " elected. The facts stated in the information in the case at bar do not require us to say whether, by a reasonable construction of the language of the controlling statute, the conclusion can be reached that, if a person is elected prosecuting attorney while he holds a license to practice law in the state, the requirement of that qualification for the office is satisfied, as nothing is said about the license continuing in force as a condition on which he may retain the place. But it must be borne in mind that this proceeding is penal in its nature, and, further, that a disbarment statute is, too, and not to be extended beyond its terms. Moutray v. People, 162 Ill. 194, 44 N. E. 496; and see State ex rel. Weed v. Meek, 129 Mo. 431, 31 S. W. 913, a case construing a similar statute.

If the case is brought down to the precise point involved, it becomes unnecessary to decide whether a judgment of permanent disbarment and revocation of the license of a prosecuting attorney would disqualify him, within the spirit and intention of the statute, to hold his position; the essential inquiry being the narrower one as to the effect, in that regard, of a temporary suspension. In this connection we observe that various offenses disqualify the perpetrator to hold office, and others are made causes for forfeiture and removal; among them are murder, felonious assault, robbery, arson, larceny, fraud or oppression in office, corrupt practices in election, drunkenness, etc. R. S. 1909, §§ 4504, 6051, 6056, 4411, 4412, and 10203. There are other sections on the subject, and regulating the procedure to be followed, including section 10203 et seq., which provide for a trial by jury to determine the guilt of the accused. We observe, too, that there are occasional provisions for either suspension or removal of guilty officials, according to the seriousness of the offense, and also for the temporary suspension of certain officers when charged with misconduct or a crime until the charge is tried; for example, clerks of courts of record. R. S. 1909, §§ 9784, 9785, 9941, and 2689. More germane to the matter in hand is the law authorizing a circuit or prosecuting attorney in cities of 160,000 inhabitants or more, when indicted for designated violations of the law, to be suspended until the indictment has been disposed of in his favor, whereupon he is to be restored to office, and the person appointed to serve in his stead during the suspension ceases to act. R. S. 1909, §§ 998, 999.

In a proceeding under article 2, chapter 90, R. S. 1909 (or section 10203 et seq., cited above), to remove a county, city, or township officer, if there is a conviction, the defendant is allowed an appeal to this court, pending the appeal is suspended, and if the appeal results in his favor, he is paid for the time for which he was removed. Those statutes are referred to because they show the policy of the state is that a duly elected or appointed official shall not be deprived of his position, except for remissness in the performance of the duties of the office, or conviction of some crime which demonstrates he is unworthy to hold a position of honor or trust. Not only is said policy to be gleaned from statutory enactments, but this court has decided that if an official possesses the requisite qualifications for his position, he can be removed from it only for misconduct connected with the performance of the duties of the office, except when some transgression apart from those duties is made by statute cause for removal; and that rule is general. State ex rel. v. Sheppard, 192 Mo. 497, 511, 91 S. W. 477. We cite, as somewhat pertinent to our present inquiry, a case in which this court prohibited a circuit judge from suspending from practice, temporarily, an attorney who had appealed from the sentence; the court saying that no power was given by the statutes concerning disbarment, or elsewhere, to suspend for any period. State ex rel. Larew v. Sale, 188 Mo. 493, 87 S. W. 967.

Although numerous causes for removal, including official and nonofficial misconduct, are given in our statutes, suspension from the practice of the law is nowhere made cause for removing a prosecuting attorney; but, of...