State v. Wymore

• Decision Date: 05 September 1939
• Docket Number: No. 35738.,35738.
• Citation: 132 S.W.2d 979
• Parties: STATE on Inf. McKITTRICK, Atty. Gen., v. WYMORE, Pros. Atty.
• Court: Missouri Supreme Court

132 S.W.2d 979

STATE on Inf. McKITTRICK, Atty. Gen., v. WYMORE, Pros. Atty.

No. 35738.

Supreme Court of Missouri, in Banc.

September 5, 1939.

Rehearing Denied October 17, 1939.

Original quo warranto proceeding by the State, upon the information of Roy McKittrick, Attorney General of the State of Missouri, against Carl F. Wymore, Prosecuting Attorney of Cole County, Missouri, to oust respondent from his office of prosecuting attorney.

Respondent ousted from his office of Prosecuting Attorney as of August 24, 1937, until the end of his first term, and fined $1 and taxed all of the costs of the action.

Roy McKittrick, Atty. Gen., and Franklin E. Reagan and Max Wasserman, Asst. Attys. Gen., for relator.

John G. Madden, Alfred Kuraner, and Madden, Freeman & Madden, all of Kansas City, for respondent.

GANTT, Judge.

Original action in quo warranto. On Aug. 24, 1937, the Attorney General filed in this court an information in which it is alleged that on and since Jan. 1, 1937, the respondent Carl F. Wymore was the prosecuting attorney of Cole County, and as such charged with the duty of enforcing the criminal laws of this state; that on Jan. 1, 1937, and since said date slot machines, punch boards, pin ball machines, marble machines, race horse machines, cigarette machines, dice machines and other illegal devices and schemes were operated in said county in violation of law; that said violations were open, notorious and known to respondent; that respondent was requested to prosecute criminal actions against persons violating said law; that he willfully and corruptly failed to do so, and willfully and corruptly failed to prosecute criminal actions in said county; that respondent, in permitting the operation of said gambling devices colluded with others unknown to relator, and that by failing to prosecute persons violating said laws he forfeited his office of prosecuting attorney. Relator prayed that he be ousted from said office and that the same be declared vacant.

We heretofore ruled that this court has jurisdiction to determine the questions presented by the information filed in this cause. State v. Wymore, Mo.Sup., 119 S. W.2d 941, 119 A.L.R. 710.

Respondent's answer specifically denied the allegations of the information. The cause was referred to a commissioner to take testimony and report his findings of fact and conclusions of law. On Nov. 21, 1938, the commissioner commenced to take testimony. By agreement of counsel, testimony was taken from time to time and completed on Mar. 10, 1939. On May 3, 1939, the commissioner filed his report in which he recommended that respondent be found not guilty.

Respondent's two year term as prosecuting attorney expired Dec. 31, 1938. He was reelected and is now serving his second term beginning Jan. 1, 1939.

I. He contends that "since the term of office sought to be forfeited has expired by operation of law, this proceeding is moot and should be dismissed".

The question of the removal of a public officer for misconduct during a previous term is considered in Attorney General v. Tufts, 239 Mass. 458, 131 N.E. 573, 132 N. E. 322, 17 A.L.R., page 279. The authorities are divided on the question. In the view we take, it will not be necessary to consider the question. It is reserved. The curious may consult the annotation in A. L.R.

In this connection it should be stated that we have ruled in quo warranto actions originating in the circuit court on the relation of a private person that, if the term of office has expired, the action must be prosecuted to final judgment. The ruling may rest on the statutory provision that after the institution of the action it cannot be dismissed without the consent of the relator. We do not consider the question.

We now are confronted with the question as to whether or not there remains an issue in the case. Of course, if there is an issue, it is not a moot case. In ruling the question we will, in the instant case, accept the view of respondent that the forfeiture, if any, was ipso facto and occurred as of the date of the filing of the information on Aug. 24, 1937, and prior thereto. Under the common law the rule is stated as follows: "It frequently happens that the term of the office the right to which is the subject of controversy expires before the proceedings are concluded and the right determined, and the question then presented is whether the proceedings must fail or proceed to judgment, though the respondent is not in the office and therefore cannot, strictly speaking, be ousted therefrom. The courts quite generally hold that where the proceedings have been commenced during the term of office for which the relator claims to have been elected, the proceedings will not be dismissed, though such term expires prior to judgment in the proceedings. Ordinarily the object of the proceedings is more than to oust the incumbent. In most jurisdictions a fine may, in the discretion of the court, be imposed, and costs may be recovered against the respondent, should he be found guilty;" Bailey, Vol. 2, Extraordinary Remedies, pp. 1294, 1295.

We ruled in Hunter v. Chandler, 45 Mo. 452, that where the action to remove an official for misconduct was begun before the term expired, the action should be prosecuted to a final judgment. We also ruled in State ex rel. Barrett v. First Nat. Bank, 297 Mo. 397, 414, 415, 416, 249 S.W. 619, 30 A.L.R. 918, that the character of judgment in quo warranto cases is largely within the discretion of the court.

Furthermore, we ruled that in quo warranto cases this court may impose a fine for usurpation. The question was considered in Standard Oil Co. v. Missouri, 224 U.S. 270, loc. cit. 283, 284, 285, 32 S.Ct. 406, loc. cit. 410, 56 L.Ed. 760, Ann.Cas. 1913D, 936. In that case this court entered a judgment of ouster against the Standard Oil Co., Republic Oil Co., and the Waters-Pierce Oil Co. and fined each fifty thousand dollars. Some of the members of the court expressed the opinion that each should be fined one million dollars. It was contended in the Supreme Court of the United States that this court was without jurisdiction to impose a fine on the companies. In an interesting opinion said court ruled as follows:

"In Missouri, and prior to the decision in this case, the rulings were to the effect that the supreme court of Missouri had jurisdiction not only to oust, but to impose a substantial fine in quo warranto.

"In 1865, under a Constitution which, like the present, conferred power `to issue writs of quo warranto and hear and determine the same,' the court tried the case of State ex inf. v. Bernoudy, 36 Mo. 279, brought against the clerk of a circuit court for usurpation of the office. There was a prayer for judgment of ouster and costs. The court said:

"`No evidence is offered to charge the defendant with any evil intent, and it being probable that he acted from mistaken views only, (the court) will not avail itself of the power given by law, to impose a fine on him, and will condemn him to pay the cost only of this proceeding.'

"In 1902, in State v. Armour Packing Co. et al., 173 Mo. 356 [395], 73 S.W. 645, 61 L.R.A. 464, 96 Am.St.Rep. 515, information in the nature of quo warranto was filed in the supreme court against three corporations, praying that their franchises be forfeited because they had formed and maintained a conspiracy in restraint of trade. The court held that, `under the circumstances, the judgment of absolute ouster is not necessary, but the needs of justice will be satisfied by the imposition of a fine.' It thereupon adjudged that each of the defendants should pay the sum of $5,000 as a fine, together with the costs of court.

"In State ex inf. v. Delmar Jockey Club, 200 Mo. [34] 37, 92 S.W. 185, 98 S.W. 539, quo warranto was brought to forfeit the charter of the company, because it had violated a criminal statute prohibiting the sale of pools on horse races. A judgment of ouster was entered and a fine of $5,000 was imposed. On rehearing the judgment was amended and the provision for a fine omitted. Evidently this was not for want of jurisdiction to impose such sentence, but because it was considered that ouster was all that was demanded by the facts. This appears from the fact that in the present case the court adopted the language of the original Delmar decision, in which it was said that the fine is imposed for a violation of the corporation's implied contract not to violate the franchise granted by the state ([Attorney General v. Standard Oil Co.] 218 Mo. [1] 360, 116 S.W. 902). So that, whatever may be the rule elsewhere, in Missouri a corporation may, in quo warranto, be subjected to a money judgment, whether called a fine as punishment, or damages for its implied contract not to violate its franchise."

The rule is stated in a standard text as follows: "The propriety of imposing a fine in addition to judgment of ouster is usually regarded as a matter of sound judicial discretion, and when no improper motives are alleged or shown against the party ousted, the fine imposed will be merely nominal". High, Extraordinary Remedies, Third Edition, p. 702.

Furthermore, in State ex inf. Attorney General v. McAdoo, 36 Mo. 453, for usurpation of office, there was judgment of ouster with a statement as follows: "Having no evidence that he acted from any other than mistaken views, we forbear imposing any fine on him, and only order that he pay the costs".

Thus it appears that if respondent is guilty, he may be fined for usurpation from Aug. 24, 1937, to the end of his term, Dec. 31, 1938.

II. Respondent next contends that the evidence is not sufficient to sustain a finding that he is guilty of official misconduct.

The evidence shows that during the year 1937, and prior to the filing of the information, approximately two hundred and fifty machines, consisting of slot machines, punch boards, pin ball machines, marble machines, race horse machines, cigarette machines, dice machines...