State v. Patton

• Decision Date: 12 May 1908
• Citation: 131 Mo. App. 628,110 S.W. 636
• Parties: STATE ex rel. SCHULZ v. PATTON et al.
• Court: Missouri Court of Appeals

110 S.W. 636

131 Mo. App. 628

STATE ex rel. SCHULZ v. PATTON et al.

St. Louis Court of Appeals. Missouri.

May 12, 1908.

1. MUNICIPAL CORPORATIONS — OFFICERS — REMOVAL — DEFALCATION PRIOR TO ELECTION — NECESSITY OF LEGAL CONVICTION.

Rev. St. 1899, § 5761 (Ann. St. 1906, p. 2931), provides that the mayor may, with the consent of the majority of the city council, remove from office for cause shown any elective officer of the city; he being first given an opportunity to be heard. After relator was elected treasurer of a city of the third class the mayor and council thereof preferred charges against him to procure his removal; the charges being that while relator was collector of revenue of the city prior to his election as treasurer he embezzled a sum belonging to the city. Held that, unless an official has been convicted prior to proceedings to oust him from office, the misconduct for which removal is sought, in the absence of statute, must be misconduct as to the office from which he is sought to be removed, and such misconduct must be a legal cause of removal and affect the administration of such office, the rule being based upon the doctrine of condonation of past offenses, and having particular application to elective officers, and hence relator, having never been convicted of the offenses committed while holding the former office, may not be removed from his present office because of such offense.

2. SAME — DEFECT IN TITLE — STATUTE.

Rev. St. 1899, § 5761 (Ann. St. 1906, p. 2931), provides that the mayor may, with consent of the city council, remove from office for cause shown any elective officer of the city. Rev. St. 1899, § 5775 (Ann. St. 1906, p. 2934), which is a part of the charter of the city of G., disqualifies any person from being elected or appointed to any city office who shall then be in arrears to the city on account of a defalcation in office. Proceedings were brought by the mayor and council of a city to remove relator from the office of treasurer on the ground that while formerly serving as revenue collector he had embezzled money from the city which was due at the time of his election. Held, that section 5761, under which the proceedings for removal were had, related entirely to execution of the office rather than to the official's title to the office, and hence the fact that relator had defalcated to the city when he was elected to the office of treasurer was not a sufficient "cause shown" for his removal from that office under the statute, as a corporation, either at common law or under the statute, for mere cause may not remove an officer for defect of title; the proper remedy being quo warranto.

Original proceeding in the St. Louis Court of Appeals for prohibition brought by the state, on relation of Gustav Schulz, against Warren C. Patton and others, to review proceedings by the mayor and council of a city for the removal of relator from a city office. Prohibition made absolute.

R. L. Wilson and Wilson Cramer, for plaintiff. Robt. H. Whitelaw and M. A. Dempsey, for respondents.

NORTONI, J.

This is an original proceeding in prohibition. The relator is the duly elected, qualified, and acting treasurer of the city of Cape Girardeau, a city of the third class. Its charter consists of such provisions as are pertinent in chapter 91 of the Revised Statutes of Missouri for 1899 (Ann. St. 1906, p. 2749). The respondents are the mayor and members of the council of that city. The office of treasurer of the city of Cape Girardeau is elective, and relator holds his office in virtue of an election had and held in that city for city officers in April, 1907. For several terms prior to his election to the office of treasurer the relator, Gustav Schulz, occupied the office of collector of the revenue for that city. The charges preferred against him, and upon which his removal from the office of city treasurer is sought, all relate to derelictions of duty alleged to have been committed prior to his incumbency of the present office of treasurer, and while he was serving the city in the office of collector. The mayor of the city of Cape Girardeau lodged a complaint against the relator with the city council, in which it is alleged that "Gustav Schulz has failed in the proper discharge of his official duties and obligations as treasurer of the city of Cape Girardeau, that he has been guilty of official misconduct and of conduct grossly scandalous, and that he is now disqualified from holding the office of treasurer," and in support of such charges alleges certain specifications substantially as follows: That relator served three terms as city collector immediately preceding his election to the office of treasurer, that during said terms as such collector he had collected as much as $3,000 of the public revenue and appropriated the same to his own use without accounting therefor to the city or depositing the same in the city treasury, and that he has attempted to conceal the defalcations in that behalf. Due notice of the charges having been served upon the relator, he appeared before the council and entered his formal denial thereto. Thereupon the body resolved itself into a board of impeachment, and all parties being present, the council proceeded to hear the evidence with respect to the matters charged, to the end of determining the matter of the removal of relator from the office of treasurer for cause. Suggestions were filed in this court therefor, and a preliminary rule in prohibition was issued to the city council. Upon proper returns thereto and motions the question has been argued.

It is insisted upon the part of relator that the council is without jurisdiction to remove him from the office of city treasurer for misconduct during his tenure as city collector. On the other hand, it is argued by learned counsel representing the city that, where the statute fails to specify with a degree of precision the causes for which a removal may be had, the question is to be determined by reference to the character of the trust reposed in virtue of the office and the qualifications essential to a proper discharge of the duties incident thereto, notwithstanding the alleged acts of misconduct occurred during his prior incumbency of another office. And indeed on principle it seems that, where one has embezzled and converted to his own use public funds given into his hands as collector, he ought thereby to be disqualified from exercising the franchises pertaining to the high trust of treasurer. However, a proper application of sound principle seems to enforce and sustain another conclusion in cases of this character. The statute under which the proceeding in the city council is had is as follows: "The mayor may, with the consent of a majority of all the members elected to the city council, remove from office, for cause shown, any elective officer of the city, such officer being first given opportunity, together with his witnesses, to be heard before the council, sitting as a court of impeachment. Any elective officer may, in like manner, for cause shown, be removed from office by a two-thirds vote of all the members elected to the city council, independently of the mayor's approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the council, remove from office any appointive officer of the city at will; and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the council independently of the mayor's approval or recommendation. The council may pass ordinances regulating the manner of impeachment and removals." Section 5761, Rev. St. 1899 (Ann. St. 1906, p. 2931). It will be observed the statute fails to specify the particular dereliction for which a removal may be had. The proceeding is authorized thereby for "cause shown"; and while it seems that the defalcation in the office of collector ought to be sufficient cause for removal from the office of treasurer within the contemplation of the statute, supra, the weight of authority indicates and supports the law to be that, unless the incumbent has been convicted in a court of law prior to such proceeding, the misconduct for which a removal is sought, in the absence of statutory specifications to the contrary, must be misconduct with respect to the execution of the particular office from which the incumbent is sought to be ousted, and such misconduct must constitute a legal cause for removal, and affect a proper administration of such office. The fundamental notion involved in this doctrine is that of condonation for past offenses; and it seems there is especial reason for its application with respect to elective offices. This must be true when we reflect that all presumptions go in aid of the incumbent, and that the constituency which has seen fit to confer the office by popular election is presumed to have knowledge of prior derelictions of the present incumbent in the former office, condoned his offenses, and subsequently awarded him a new commission by a free expression of the popular will. Indeed, as has been well stated, the door of reform is always open, and it is the part of a Christian people to condone and forgive. There is no restriction whatever in our Constitution or statutes, respecting the office involved upon the power of the people to elect or, for that matter, the power to appoint any citizen to office, notwithstanding his previous character, habits, or official misconduct, and the doctrine of the law predicates upon this thought as fundamental. Adjudications given by the highest and most respectable courts of this country and England on the proposition here under consideration sustain the view indicated, as will appear by reference to the following cases in point: Speed v. Com. Council, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555; State ex rel. v. Com. Council, 25 N. J. Law, 536; Commonwealth v. Shaver, 3 Watts & S. (Pa.) 338; ...