dissenting.
I respectfully dissent.
The principal opinion would remove Sheriff Arthur (Bud) Riley from office and prevent him from serving out his second elective term as sheriff of Audrain County, upon a finding that he “willfully and fraudulently” overreported the expenses incurred in the preparation of food for prisoners in the Audrain County Jail between January 1977 and February 1978. Sheriff Riley reported a fixed amount of $200 per month for food preparation, while expending only $25 per week for the salary of a part-time cook in the jail. The finding of the principal opinion rests on the rejection of Sheriff Riley’s denial that any of the $200 went into his pocket. It rests on the inference that “There is no place else it could have gone.” Sheriff Riley testified that the money all went to defray “actual food costs.”
The relator must bear the burden of proof in this case. State on inf. Stephens v. Fletchall, 412 S.W.2d 423; 428 (Mo. banc 1967); State on inf. Cornett v. Madget, 297 S.W.2d 416, 427 (Mo. banc 1956). In Madg-et, this Court pointed out that while the relator in a quo warranto proceeding does not have the burden of proving guilt beyond a reasonable doubt as does the state in a criminal case,
forfeitures are not favored and the foregoing legal principles are tempered by the rule stated in 43 Am.Jur. Public Officers, § 34, p. 39: “The remedy by the removal of a public officer has been said to be a drastic one, and the statutory provision defining the grounds for removal is given a strict construction.”
297 S.W.2d at 428. A strict construction of the phrase “willful or fraudulent violation or neglect of any official duty,” § 106.220, RSMo 1969 must be applied in this case.
The bookkeeper for the Sheriff’s office, the county clerk, and the presiding judge and the associate judge of the county court, all testified that it was the accounting practice in Audrain County to list the food preparation allowance as a fixed sum. The fact that Sheriff Riley went along with an arguably inaccurate accounting practice that had existed before he assumed office does not establish that Sheriff Riley kept money to which he was not entitled, or that he knew that what his bookkeeper placed on the monthly statements misrepresented actual costs. The judges of the Audrain County Court knew that the $200 fixed figure was more than enough to pay the salary of the part-time cook. Relator has not proven that Sheriff Riley willfully sought to deceive the county court or to defraud the taxpayers. Relator has failed to prove that Sheriff Riley kept any of the food preparation allowance for himself. On this record, there is insufficient evidence to warrant Sheriff Riley’s ouster for willfully and fraudulently violating his official duty.