Opinion
No. 43546.
January 11, 1954. Motion for Rehearing or to Transfer to Banc Overruled, February 8, 1954.
The judgment ousting defendant county assessor from his office on account of soliciting a bribe is affirmed. Quo warranto is a proper remedy. Defendant was not entitled to a jury trial. A prior conviction of a criminal offense was not required.
1. QUO WARRANTO: Officers: Malfeasance in Office: Remedy Proper. Quo warranto is a proper remedy to oust a county officer for malfeasance in office.
2. QUO WARRANTO: Officers: Trial: Malfeasance in Office: Jury Trial Not Required. Defendant was not entitled to a jury trial in a quo warranto proceeding to oust him from office.
3. QUO WARRANTO: Officers: Malfeasance in Office: Prior Conviction Not Required. A conviction for a criminal offense is not a prerequisite to the institution of ouster proceedings.
Appeal from Phelps Circuit Court; Hon. E.W. Allison, Judge.
AFFIRMED.
Mark M. Hennelly and Dewey A. Routh for appellant; Donald H. Stephen of counsel.
(1) The court did not have jurisdiction and erred in hearing the case under the information in quo warranto, for the reason that where a statute creates a right and provides a remedy, the remedy so provided is exclusive and must be followed. Secs. 531.010, 558.090, 558.130, R.S. Mo. 1949; Osagera v. Schaff, 293 Mo. 333, 240 S.W. 124; Mennemeyer v. Hart, 359, Mo. 423, 221 S.W.2d 960; 1 C.J.S. 974; Chandler v. Chicago A.R. Co., 251 Mo. 592, 158 S.W. 35; Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629; 119 ALR 725, l.c. 730: State ex rel. Letcher v. Dearing, 253 Mo. 604, 162 S.W. 618; State ex rel. Atty. Gen. v. McClain, 58 Ohio St. 313, 50 N.E. 907; Sec. 4, Art. V, Mo. Const. 1945; State ex rel. Jordan v. Funk, 16 Ohio C.C. 155, 8 Ohio C.D. 782; State ex rel. Shartel v. Brunk, 326 Mo. 1181, 34 S.W.2d 94; Haymaker v. State, 22 N.M. 400, 163 P. 248; State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; Sec. 7, Art XIV, Mo. Const. 1875; Sec. 4, Art. VII, Mo. Const. 1945; Sec. 11202, R.S. Mo. 1929: Sec. 106.220, R.S. Mo. 1949; State ex rel. Davis v. Peters, 94 S.W.2d 930. (2) The court did not have jurisdiction and erred in hearing the case for the reason that, where under the terms of a constitution or statute, it is provided that an incumbent of public office, upon conviction of a certain offense, shall forfeit his office, prior conviction is a prerequisite to the institution of quo warranto proceedings to remove such officer. State ex rel. Letcher v. Dearing, 253 Mo. 604, 162 S.W. 618; People ex rel. Hyatt v. Hogan, 257 Ill. App. 206; State ex rel. Vance v. Wilson, 30 Kan. 661, 2 P. 828; State ex rel. Good v. Conklin, 127 Neb. 417, 255 N.W. 925; State v. Hixon, 27 Ark. 398; Secs. 558.090, 558.130 R.S. Mo. 1949. (3) The court erred in not granting defendant the right of a trial by jury. Sec. 558.090, R.S. Mo. 1949; Sec. 18 (a), Art. 1, Mo. Const. 1945; State ex rel. v. Townsley, 56 Mo. 107; State of Oklahoma ex rel. West v. T.S. Cobb, 24 Okla. 662, 104 P. 361; People v. Doesburg, 16 Mich. 133; State v. Arkansas Lumber Co., 260 Mo. 212, 169 S.W. 145. (4) The court erred in attempting to take jurisdiction over this action in quo warranto, because the procedure set out by the statutes affords the State a plain and adequate remedy, and therefore quo warranto will not lie. Mechem on Public Officers, p. 315, Sec. 486; State ex rel. Jones v. Wurdeman, 309 Mo. 408, 274 S.W. 407; State ex rel. Vance v. Wilson, 30 Kan. 661, 2 P. 828; High on Extraordinary Remedies, Secs. 616-618; State v. Marlow, 15 Ohio 114; State v. Hixon, 27 Ark. 398; Secs. 558.090, 558.130, R.S.Mo. 1949.
Earl Saunders, M.C. Matthes and Dearing Matthes for respondent.
(1) The circuit court had jurisdiction to hear this case under the information in quo warranto, and the judgment and decree finding that defendant had usurped the office of assessor of Jefferson County, Missouri, was supported by law and the facts. State ex inf. McKittrick v. Wymore, 119 S.W.2d 941; Sec. 531.010, R.S. Mo. 1949; Sec. 4, Art. V, Mo. Const. 1945; State ex inf. McKittrick v. Wymore, 132 S.W.2d 979; State ex inf. of McKittrick v. Graves, 144 S.W.2d 91; State ex inf. v. Ellis, 28 S.W.2d 363. (2) The statutes, Secs. 558.090 and 558.130, do not provide an exclusive remedy for removal of an official, in fact no procedure for removal is provided by said sections of the statute. Therefore, the court had jurisdiction of this cause. Secs. 558.130, 558.090, R.S. Mo. 1949; 74 C.J.S., Sec. 15, p. 201; Sec. 4, Art. VII, Mo. Const. 1945. (3) It was not necessary to convict defendant of the crime of soliciting a bribe before he could be ousted from office. State ex inf. McKittrick v. Wymore, 119 S.W.2d 941; State ex inf. McKittrick v. Williams, 144 S.W.2d 98, (4) The defendant was not entitled to a jury trial. State ex inf. McKittrick v. Williams, 144 S.W.2d 98.
J.W. Thurman, Prosecuting Attorney of Jefferson County, Missouri, filed an information in Quo Warranto in the Circuit Court of the county to oust Martin Burgess from the office of Assessor. While the case was pending on appeal. Earl Saunders took office as Prosecuting Attorney and his name was substituted in lien of J.W. Thurman's name.
The information alleged that Burgess during the months of March, April, and May of 1952, while holding the office of County Assessor and while acting as such, unlawfully solicited a contribution of $3,500 from the Pittsburg Plate Glass Company, with factory at Crystal City, in consideration for which Burgess promised he would act increase the assessed valuation of the property of the company. It was charged in the information that Burgess by soliciting the bribe violated Section 558.090, RSMo 1949. VAMS, and thereby forfeited his right to held the office of Assessor. The prosecutor asked that Burgess he ousted from office. A change of venue took the case to the Circuit Court of Phelps County, Missouri, where a trial was had before E.W. Allison, the regular judge of that county. The trial court entered a judgment ousting Burgess from office and an appeal was granted to this court.
Appellant Burgess in his brief did not question the sufficiency of the evidence to sustain the charges of the petition. The evidence disclosed that Burgess on various dates in March, April, and May of 1952 approached the officers of the Pittsburg Plate Glass Company and suggested to them that it was an election year; that he had opposition and needed money to pay the campaign expenses; that he had been fair to the company and the company should help him. After a number of suggestions of this nature failed to bring results, Burgess informed one of the officers of the company in the presence of a witness that if the company would not pay $3,500, he (Burgess) would double the valuation of the company's property. This was followed by a letter advising the company that Burgess, as Assessor, had increased the assessment of the property of the company from $2,401,300 to $5,000.000.
In the brief, appellant says the court did not have jurisdiction for the reason that quo warranto cannot be invoked to oust him from office: that Sections 558.090 and 558.130, RSMo 1949, VAMS, provide an exclusive remedy. A number of cases were cited which have no bearing on this point. The case of State ex rel. Letcher v. Dearing, 253 Mo. 604, 162 S.W. 618, cited by appellant, supports his theory. That case was not followed by the court en banc in the case of State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363, where it was held that quo warranto was a proper remedy to be invoked to oust a county official for malfeasance in office. The Dearing case, supra, was expressly [341] overruled in State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, l.c. 948 (16), 119 A.L.R. 710, with concurring opinion by Leedy, J. Other cases on this subject are State on inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979; State on inf. McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 91; State on inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98.
The Constitution of 1875, Art. XIV, Sec. 7, provided for the removal of county officers for malfeasance in office. The 1945 Constitution, Art. VII, Sec. 4, contains a similar provision. Section 531.010, RSMo 1949, VAMS, and Art. V, Sec. 4, of the 1945 Constitution authorize a prosecuting attorney to institute quo warranto proceedings. The cases above-cited, except the Dearing case, hold that county officers may be removed by such a proceeding.
Appellant also says he was entitled to a jury trial. This court en banc, with all of the judges concurring, in the case of State on inf. McKittrick v. Williams, supra, 144 S.W.2d l.c. 105 (28-30), ruled that in a proceeding of this nature, the person informed against is not entitled to a jury trial. We need not review the question further.
Appellant contends that a conviction for a criminal offense is a prerequisite to the institution of ouster proceedings. The Dearing case, supra, was cited as authority. That case, as above-noted, has been overruled. The cases of State ex inf. McKittrick v. Wymore, 119 S.W.2d 941, State on inf. McKittrick v. Williams, and State on inf. McKittrick v. Graves, supra, ruled that a conviction was not a prerequisite to the institution of quo warranto proceedings.
We have disposed of all the points briefed by the appellant. The judgment of ouster was proper and amply supported by the evidence.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.