State ex inf. Danforth v. Orton

BARDGETT, Judge

(dissenting).

I respectfully dissent. In my opinion, this court cannot entertain jurisdiction of an original action to oust a county official from office under the Constitution of Missouri 1945, Art. VII, § 4, in view of the legislative action in enacting into law § 106.220 et seq., which provisions specifically provide for the procedure to be followed in such cases.

At the outset it must be noted that respondent filed his motion to quash this court’s original writ and summons on February 13, 1970, and set forth his reasons therefor, thus there was no delay in asserting his position.

Art. VII, § 4, Constitution 1945, provides: “Except as provided in this constitution, all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law.”

The only officers subject to impeachment under the 1945 Constitution are those *629set forth in Art. VII, § 1, all of which are elective officials of this state (not county) and the other constitutional officers which are judges of the supreme court, courts of appeals and circuit courts. Art. VII, § 6, provides for the automatic forfeiture of office if a public officer employs certain relatives. This provision is self-executing and quo warranto under § 531.010 et seq. is available as the method of proceeding to oust the official since he has done an act which, under the constitution, automatically causes a forfeiture and, therefore, he is an usurper or intruder. State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363. Respondent does not fall within these categories.

The opening words of Art. VII, § 4, “Except as provided in this constitution” indicate that the removal from office of some officials, not subject to impeachment, has been specifically provided for in other sections of the constitution which, if correct, would explain the reasons for this opening phrase. There are such specific provisions. Art. Ill, § 18, provides that “Each house * * * shall be sole judge of the qualifications, * * * of its own members * * * ” This section was held in State ex inf. Danforth v. Banks, Mo., 454 S.W.2d 498, to be exclusive insofar as qualification of the members of the legislature was concerned and not merely as alternative or parallel proceedings to quo warranto when the ouster of a member of the legislature was the subject of the action.

Art. IV, § 17, invests the governor with power to remove all appointive officers without the procedure of impeachment. Thus the constitutional language of Art. VII, § 4, recognized that the constitution itself provided for removal by methods other than impeachment and avoided conflict within itself by the use of the language noted above.

The remaining words of Art. VII, § 4, are “all officers * * * shall be subject to removal from office in the manner and for the causes provided by law.” In my opinion this provision of Art. VII, § 4, delegated to the general assembly the authority to provide for the grounds for removal and method of removal from office of all officers other than those subject to removal by impeachment under Art. VII, § 1, or subject to removal by another specific constitutional provision of which Art. Ill, § 18, relating to members of the general assembly, Art. IV, § 17, relating to appointive officers, and Art. VII, § 6, relating to nepotism, are examples.

I would not hesitate to agree that, in the absence of legislative action implementing Art. VII, § 4, this court retained its power to oust such officials under traditional quo warranto procedures, for the people, in adopting the constitution, could not have intended a vacuum to exist with respect to the ouster of unfaithful public officials.

Therefore, if § 106.220 ended without the language, “and may be removed therefrom in the manner provided in sections 106.230 to 106.290”, I would agree that the procedure for removal for the causes specified in § 106.220 is quo warranto.

Section 106.220 is the statutory provision under which this action was brought. Relator’s information alleges that “Respondent, pursuant to Section 106.220, RSMo 1959, has forfeited his said office as Sheriff, and has unlawfully usurped and held such office since January 1, 1957.”

Relator having sought the removal of respondent pursuant to § 106.220 should be required to proceed in the manner provided for in § 106.220 which is the procedure set forth in §§ 106.230 to 106.290.

I hold this view because the 1945 Constitution, Art. VII, entitled “Public Officers”, § 4, specifically provides that “ * * * all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law.” (Emphasis mine.) Section 106.220 assumes that the official has lawfully come into office and is not a usurper or intruder *630or unlawfully holding or executing an office, but that, having come into office lawfully, his conduct thereafter was in violation of the duties of his office. Thus Chapter 106 relates exclusively to public officers who have been lawfully elected or appointed and thereafter knowingly, willfully or fraudulently violate their duties.

As stated, in the instant matter relator filed the information seeking removal under § 106.220 which permits removal only, and failed to proceed to remove respondent in the manner provided in §§ 106.230 to 106.290. These procedures provide for the prosecuting attorney to file a complaint in circuit court setting forth in plain and concise language the charge against the official — § 106.230. The governor may direct the attorney general to assist in the prosecution, and if the prosecuting attorney refuses to file a complaint the attorney general is given authority to file it — § 106.250. If the action is against a sheriff, the circuit judge shall make an order disqualifying the sheriff and appoint an elisor for the summoning of the jury and performing the duties of sheriff in the trial of the cause — § 106.260. This action is in the nature of a civil proceeding — § 106.270. Section 106.280 provides that “in all prosecutions under sections 106.220 to 106.290, the defendant shall, upon conviction, after judgment of removal is entered, be entitled to an appeal to the supreme court of Missouri, * * * ”

Relator, avoiding the statutory procedures set forth above, utilized either common-law quo warranto procedures or statutory quo warranto procedures under Chapter 531 (Quo Warranto), and thus avoided the respondent’s right to jury trial in circuit court and deprived respondent of an appeal to this court should he be found guilty. Additionally, although not assessed, respondent became subject to being fined as provided for in § 531.050 against usurpers, intruders, and those holding office unlawfully.

Finally, the criminal statute — 558.110, under which respondent was not charged —is brought into play and respondent is found guilty of willful oppression and abuse of authority as specified in § 558.-110.

It is this judicial mixture of causes for removal (106.220) with procedures under a different statute (531.010 et seq.) and conclusions of guilty under a criminal statute (558.110) and concluding with forfeiture and ouster under the first statute (106.220) that I believe is unacceptable and does not, in my opinion, comport with a reasonable interpretation of Art. VII, § 4 of the 1945 Constitution and the various legislative enactments referred to supra.

I realize that this view is contrary to prior decisions of this court, particularly State ex inf. Dalton v. Mosley, 365 Mo. 711, 286 S.W.2d 721, decided in 1956, wherein this court followed the decision of State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 944, decided prior to the 1945 Constitution. In Wymore the court held that the 1924 amendment to Art. 14, Sec. 7, Constitution 1875, did not make the provisions of §§ 11202-11209, RSMo 1929, now §§ 106.220 to 106.290, RSMo 1969, V.A.M.S., the exclusive remedy.

The principal opinion in Wymore held that Art. 14, Sec. 7, Constit. 1875, as amended 1924, provided: “The General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty. Laws may be enacted to provide for the removal from office, for cause, of all public officers, not otherwise provided for in this Constitution.”

The concurring-in-result opinion of Leedy, J., concurred in by two judges, held that the 1924 amendment repealed the first sentence stated above and substituted therefor the second sentence so that Art. *63114, § 7, read: “Laws may be enacted to provide for the removal from office, for cause, of all public officers, not otherwise provided for in this Constitution.” Judge Leedy then held that Art. 14, § 7, of the 1875 Constitution as amended in 1924 was merely permissive and not a constitutional mandate to the general assembly imperatively requiring action by the general assembly and, consequently, saw no conflict between a proceeding in quo warranto as opposed to the provisions of what is now § 106.220 et seq.

The 1945 Constitution, Art. VII, § 4, was in effect at the time State ex inf. v. Mosley, supra, was decided, and Judge Leedy writing for the court held that, since the majority of the court in Wymore saw no limitation in the provisions of the 1924 amendment restricting this court’s jurisdiction in quo warranto, he was unable to discern any real difference in meaning or effect between it and the corresponding section of the present constitution, Art. VII, § 4, and, therefore, the doctrine of the Wy-more case would be followed.

Whether the constitutional provisions in Wymore were as the principal or concurring opinion held them to be, the Constitution of 1945 nevertheless abandoned that language entirely by completely eliminating the previous constitutional causes for removal found in Art. 14, § 7, to wit: “ * * * willful, corrupt or fraudulent violation or neglect of duty,” as well as the other language previously employed, and provided that “ * * * all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law.” (Emphasis mine.)

It is because of this constitutional provision, not the act of the legislature in and of itself, that I believe makes the legislative act, § 106.220 et seq., exclusive as to the procedure to be followed when removal is sought for conduct within the scope of the causes for removal set forth therein, and for this reason I believe Mosley was incorrectly decided on jurisdiction and should be overruled.

In Wymore the principal opinion held that § 11202 (now § 106.220) did not confer any new right and, therefore, was not exclusive but merely cumulative, although recognizing that there is law to the effect that if a new right is created it may be the exclusive remedy. State ex inf. McKittrick v. Wymore, supra, 119 S.W.2d loc.cit. 945. Although § 11202 (106.220) may not, by itself, have created a new right, it did by its own terms provide for a new procedure as set forth in §§ 11203-11209 (now §§ 106.230-106.290), and the new procedure included a new right — that of a jury trial and, if found guilty, an appeal to this court, §§ 106.260 and 106.280.

In Parker v. Sherman, Mo., 456 S.W.2d 577, Division Two of this court held that a defending sheriff has a right to a jury trial when removal is sought under §§ 106.-230 to 106.290, although also saying that this was not the exclusive remedy. It would seem obvious that §§ 106.230 to 106.-290 have absolutely no meaning in the absence of § 106.220 since it is by the force of § 106.220 that the subsequent sections become operative.

If relator styles his action an information in the nature of quo warranto, then a commissioner is appointed to take testimony, and, consequently, no jury trial is had and no appeal to this court is afforded. If he styles it a complaint for removal under § 106.230 and files it in circuit court, the respondent is afforded a jury trial and an appeal here. I believe the right to have a jury pass on the credibility of witnesses is a substantial right that cannot be lightly disregarded.

In the instant case, the transcript is replete with contradictory testimony, and the outcome of the case is dependent upon an *632assessment by the finder of facts as to the credibility of the witnesses. This assessment can best be made by seeing, observing and hearing the witnesses. Where a jury trial is provided for, this function becomes the jury’s primary task, and the right to have this task performed by a jury is very important to the litigants.

If § 106.220 et seq. confer the right to a jury trial, which I believe they do, then it does not comport with due process to permit this right to be nullified at the whim of the relator in selecting the name of the action or what court he chooses to file it in.

This court in State ex inf. Anderson v. Consolidated School Dist. No. 4 of Iron County, Mo., 417 S.W.2d 657, 659, rejected an attempt to utilize quo warranto as a substitute for an election contest and held: “The rule is well established in Missouri that the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader.”

In the instant case, no matter how the action is styled nor whether the prayer asks that forfeiture be declared or the respondent be removed, the cause of action seeks one objective — removal of a public official — and is based on acts within the statutory causes set forth in § 106.220. The action, therefore, should, in my opinion, be governed from beginning to end under §§ 106.220-106.290, RSMo 1969, V. A.M.S.

I will not unduly lengthen this dissent by reviewing all of the cases following Wy-more and Mosley, as they rely on Wymore and Mosley. Thus if Wymore and Mosley were incorrectly decided and are overruled, then those cases relying thereon also would be overruled.

I would quash our writ of quo warranto without prejudice to proceed under §§ 106.-220 to 106.290, RSMo 1969, V.A.M.S.