STATE OF MISSOURI on the information of ROY MCKITTRICK, Attorney General, Relator, v. MAX R. WILEY and WILLIAM M. BARBIERI, each purporting to act as Prosecuting Attorney of DeKalb County.
160 S. W. (2d) 677
State of Missouri
February 26, 1942
Rehearing Denied, April 16, 1942
349 Mo. 239
Division One
However, as relators have not shown a clear legal right to the issuance of the writ, by showing that there is no existing lien for the prior taxes demanded by the collector, our alternative writs of mandamus heretofore issued must be and are hereby quashed. All concur.
J. Francis O‘Sullivan for respondent Barbieri; John M. P. Miller and Phillip M. Wilson of counsel.
In view of the issues raised, it becomes necessary to consider the pleadings. Relator was granted permission to exhibit one information against the two respondents to try their respective rights to said office in one proceeding. [See
The answer and return of respondent Wiley alleged detailed facts tending to show that he possessed all of the qualifications, required by
On February 13, 1941, relator moved to strike out certain parts of respondent Wiley‘s answer, including the charges made against respondent William M. Barbieri, supra. The reasons assigned in the motion were that the charges “constitute no defense to the order to show cause herein, and constitute a collateral attack upon the right of the said Barbieri to the office in question.” The motion was overruled. No further pleadings were filed.
In the hearing before the commissioner it was admitted with reference to respondent Barbieri (there was some evidence to the same effect) that in August, 1939, the office of Prosecuting Attorney of DeKalb County, Missouri, became vacant by reason of the death of Thomas D. Williams, the duly elected incumbent of that office; that respondent William M. Barbieri was, on September 23, 1939, appointed Prosecuting Attorney of such county by Governor Lloyd C. Stark, the then Governor of the State of Missouri, and a commission was issued to him by the Governor; and that William M. Barbieri assumed said office upon his appointment, served without controversy until January 1, 1941, and since that date had occupied an office in the Court House of DeKalb County, and claimed the
Over respondent Barbieri‘s objection that it was “wholly incompetent, irrelevant and immaterial to prove any issue in the case,” respondent Wiley was permitted to offer evidence tending to show that respondent Barbieri failed to file a quarterly report as Prosecuting Attorney of DeKalb County for the quarter ending June 30th, 1940. Respondent Barbieri testified that he had filed a report for each quarter, including the one in question, and the County Clerk testified that according to his independent recollection such reports had been filed every quarter. The original reports were not in evidence, but only copies and certain other evidence. However, the originals were last seen in the possession of respondent Wiley. The County Clerk conceded that from his examination of the reports, prior to their disappearance, the report for June 30, 1940, was not filed, and respondent Barbieri was unable to explain how items dated prior to June 30th, 1940, appeared in the report filed by him on September 30, 1940. There was also evidence which respondent Wiley contends shows that respondent Barbieri failed to remit to the county the full amount of all fees collected, and that there was an apparent shortage of $25.00. It is unnecessary to set out this evidence in full. Subject to the objection, supra, it was admitted that prior to November, 1938, respondent Barbieri was a resident of Jackson County, Missouri, but in November, 1938, moved to Maysville, DeKalb County, where he established, and has since maintained his residence.
With reference to respondent Max R. Wiley it was admitted that he was over the age of twenty-one years and possessed all of the qualifications required, except as to the matter of residence, at the time he filed his application to be the nominee of the Republican party for the office of Prosecuting Attorney of DeKalb County, Missouri, in the 1940 primary; that he received the votes which entitled him to such nomination; that he was certified as the candidate of such party for said office; that his name was put upon the ballot at the General Election in November, 1940; that he received the greatest number of votes cast for said office (a majority of 444 votes); that upon the official returns of the result of said election a commission was issued to him as Prosecuting Attorney of DeKalb County, Missouri, by the Governor of the State of Missouri; that on January 2, 1941, he subscribed to the oath required by law to qualify for said office of Prosecuting Attorney; and that he now claims to be the duly elected, qualified and acting Prosecuting Attorney of DeKalb County, Missouri.
For twenty years prior to June, 1936, respondent Wiley had resided in Cameron, Clinton County, Missouri, where he held such offices as Justice of the Peace, Police Judge and City Clerk. His family consisted of himself, his wife, his two boys and a Miss Kinsella, who made her home with them. He owned a house, but apparently it was rented out, since in April, 1936, respondent and his family were living on Chestnut Street in Cameron, Clinton County and he didn‘t feel like he could “keep up this rented place, pay rent and carry the expense.” At the city election in April, 1936, he “lost out” as city clerk, that is, he was not re-appointed by the then mayor, and he decided to change his location. At about this time, he had an opportunity to lease a gasoline filling station at Sweet Springs in Saline County, Missouri. He leased the station for one year to improve his financial condition. In June, 1936, he took his family to the new location, where they lived upstairs in the filling station building until May, 1937.
It appears that Mrs. Florence Smith (whose husband was Mrs. Wiley‘s brother) resided north of Cameron and in DeKalb County. When respondent decided to go to Sweet Springs, he moved the “greater part” of his household goods to Mrs. Smith‘s residence, where it was stored. He took the remainder with him to Sweet Springs. On some five or six trips back to Cameron during the next year or two, he spent the nights at Mrs. Smith‘s residence. When he left Clinton County in June, 1936, he expected to be gone temporarily (to get on his feet) and he expected to return to DeKalb County.
About May 1, 1937, he moved from Sweet Springs to Hickman Mills in Jackson County. He took his family and some furniture to the new location and there operated a gasoline filling station for four or five months. The family lived in the back of the filling station building. At the time of this move, the remainder of his furniture from Sweet Springs was forwarded to his mother‘s home in Warrensburg, Johnson County. Most of respondent‘s household goods, however, was still stored at Mrs. Smith‘s home in DeKalb County.
In October, 1937, respondent‘s family moved to his mother‘s home in Warrensburg (his mother died in March, 1938). Respondent continued to operate the filling station at Hickman Mills until in December, 1937. Thereafter he remained in Warrensburg, Johnson County, until December, 1938. While respondent and his family were residing in Johnson County, he enrolled as a member of the bar at Warrensburg and as a member of the Johnson County Bar. He paid his bar
On December 8, 1938, respondent left Warrensburg and returned with his family and furniture to his own house (then vacant) at 613 Main Street, Cameron, Clinton County. Before moving into this house it appears that respondent went out to the Smith place, about one mile north of Cameron, where he stayed “several hours.” Respondent said he found “there wasn‘t any place to stay out there,” because there were already five or six people in a five or six room, story and a half house. When respondent and his family moved in the house at 613 Main Street, Cameron, Clinton County, they did not intend to stay there. Respondent made inquiries in an attempt to secure a house on the DeKalb County side of Cameron, but, being unable to do so, he had his household goods moved from the Smith place to the Main Street location.
Respondent and his family resided at 613 Main Street, Cameron, Clinton County, from about December 8, 1938, until April 11, 1940. During this period respondent subscribed for light and water service from the local municipal plant. He also subscribed for the local and Kansas City papers and they were delivered to that address until April, 1940. Thereafter they were delivered to 402 Main Street (hereinafter mentioned) in the same city and county until June, 1940.
In April, 1940, respondent and his family moved in with a Doctor Janes at 402 Main, Cameron, because they could not get another place. In the meantime he had released his home to the Cameron Building and Loan Association, the holder of the encumbrance thereon. The deed dated December 29, 1939, described respondent and his wife as residents of Clinton County, but respondent didn‘t think he drew the deed. While residing at the 402 Main Street address he was present, heard and made no objection to his wife giving 402 Main Street, Cameron, Clinton County as the address for herself and family when the census enumerator came in May, 1940, to take the 1940 census. Respondent thought he paid his bar enrollment fee in Clinton County in 1939, and the record showed he paid the 1940 enrollment fee in that county.
In June, 1940, respondent moved with his family to a house at the corner of Eighth and Cedar Streets, but on the north side of Eighth Street in Cameron, Missouri. This location was in DeKalb County. Bar enrollment fees for 1941 were paid on March 16, 1941, in DeKalb County. On May 4, 1940, before this last move, respondent‘s brother-in-law visited him and told him that he would not be eligible to run for Prosecuting Attorney in DeKalb County, because he had not resided in that county a year as required by law. Respondent replied that he “thought the law was not good.”
The commissioner found that respondent Wiley was ineligible to be elected Prosecuting Attorney of DeKalb County because “he was not a resident of DeKalb County at the time of his nomination and election.” The commissioner found that it was unnecessary to determine respondent Barbieri‘s eligibility to be appointed or whether he had forfeited his office, since his right to the office had not been questioned by the information filed.
Respondent Wiley contends that the commissioner erred (1) in the admission of certain evidence; (2) in the exclusion of certain evidence; (3) in failing to hold that respondent Wiley had established sufficient residence in DeKalb County; and (4) in recommending that the proceeding against respondent Barbieri be dismissed. Respondent contends it is the duty of the court to examine “the detailed qualifications of each party, and make findings upon both parties on all matters before the court and if neither is qualified to so decide.”
We will consider the last point first. In doing so, it becomes necessary to consider the pleadings and the issues joined. It will be noticed that the information filed does not charge that respondent Barbieri has usurped, intruded into or is unlawfully attempting to hold and execute said office of Prosecuting Attorney of DeKalb County. It does allege that he is acting and performing the duties of Prosecuting Attorney of said county, but admits that respondent Barbieri “has been the duly appointed, qualified and acting Prosecuting Attorney of DeKalb County, Missouri, and is, entitled to continue to hold the office of Prosecuting Attorney of DeKalb County, Missouri, until a duly qualified successor is elected, commissioned and qualified.” Respondent Barbieri did not demur to the information, but answered, realleging the statements of the information with reference to the respondent Wiley and himself, and then averring that there had been “no duly qualified successor elected and qualified.” Although no reply was filed, the filing thereof was
“The pleadings in an information in the nature of quo warranto are governed by the rules in civil cases rather than those which apply to criminal proceedings in matter of form as well as in matters of substance.” [State ex rel. Union Electric Light and Power Co. v. Grimm, 220 Mo. 483, 490, 119 S. W. 626; State ex rel. Attorney General v. Steers, 44 Mo. 223, 226.] The issues to be tried are the issues made by the pleadings, to-wit, the issues joined upon the information, answer and reply. [State ex rel. Ewing v. Townsley, 56 Mo. 107, 109, 112-114; State ex inf. Barker v. Armour Packing Co., 265 Mo. 121, 149, 151, 176 S. W. 382; State ex rel. Gentry, Atty. Gen., v. Sullivan, 320 Mo. 362, 8 S. W. (2d) 616, 617; State ex rel. Black v. Taylor, 208 Mo. 442, 447, 106 S. W. 1023; State ex inf. McKittrick, Atty. Gen., v. Arkansas-Missouri Power Co., 339 Mo. 15, 93 S. W. (2d) 887, 893; State ex inf. Miller, Circuit Attorney, v. St. Louis Union Trust Co., 335 Mo. 845, 74 S. W. (2d) 348, 353(1); State ex inf. McAllister, Atty. Gen., v. Norborne Land Drainage District Co., 290 Mo. 91, 234 S. W. 344, 347.] The rule in this State is that “where usurpation of a public office or a franchise is claimed by the State and an information is filed by the Attorney General to test the right to hold such office or enjoy such franchise, it is only necessary to allege generally that the person holding the office or enjoying the franchise does so without lawful authority and in such case as against the State it devolves upon such persons to show a complete legal right to enjoy the privileges in question.” [State ex rel. Union Electric Light and Power Co. v. Grimm, supra.] We are of the opinion, however, that, under the issues made by the pleading in this case, it was only necessary for respondent Barbieri to show that no qualified successor had been elected and qualified, and this burden he assumed at the opening of the hearing before the commissioner.
Considering now the issues as between relator and respondent Wiley. Did the plea as to the respondent Barbieri‘s disqualifications, set up in respondent Wiley‘s answer, raise a proper issue for our consideration; either as between the respondents or between relator and either respondent? “The primary and fundamental question in a proceeding by quo warranto, is whether the defendant is legally entitled to hold the office, and not as to the rights of any other person who may claim it. Where the information is upon the relation of one who himself claims to have been elected, his rights may incidentally have to be determined, but not where the proceeding is instituted by the State.” [State ex rel. Attorney General v. Townsley, 56 Mo. 107, 113.]
The respondent in a quo warranto proceeding, brought to test the right to an office, is required to set forth the facts which constitute his own title and specifically state by what right he claims the office. He is not called upon to show that some other person is disqualified and particularly if such facts are not necessarily involved in the determination of the issue with reference to his own right to hold the office as between himself and the relator. The absence of right in another claiming the office is of no consequences, unless such fact serves to qualify, explain or justify the right of respondent. [Greening, States Attorney, ex rel. Rowe v. Barnes, 355 Ill. 99, 188 N. E. 805, 806; The People ex rel. Falkenbury v. Miles, 2 Mich. 348, 349; Lake et al. v. State of Florida ex rel. Palmer, 18 Fla. 501, 506.] “The sole issue in proceedings of this nature, instituted to test the right of an incumbent to an office or franchise, being as to the right of the respondent, he cannot controvert the right or title of the person alleged in the information to be entitled to the office, nor can the court adjudicate upon such right, unless it is necessarily involved in the determination of the issue between the people and the respondent.” [High, Extraordinary Legal Remedies (3 Ed.), p. 668, sec. 712.] This court has repeatedly held that such a plea in the answer of a respondent is subject to demurrer and, unless germane to the issues, does not tend to support respondent‘s right to the office. [State ex rel. Attorney General v. Seay, 64 Mo. 89, 96; State ex rel. Circuit Attorney v. McCann, supra; State ex rel. Attorney General v. Vail, 53 Mo. 97, 104, 121.] Any lack of right of respondent Barbieri to the office did not tend to sustain respondent Wiley‘s claim, but, if respondent Wiley is disqualified, respondent Barbieri is entitled to hold the office. The fact that a single information was filed against both respondents does not change the rule that the issues are still between relator and the respective respondents and each is called upon to show his own title to the office. [State ex rel. Nagle, Atty. Gen., v. Stafford, 97 Mont. 275, 282, 284, 34 Pac. (2d) 372.]
Did the charges against respondent Barbieri in respondent Wiley‘s answer tend to broaden the issues as between relator and respondent Barbieri? These charges against respondent Barbieri were not preferred by the State. They were not filed by the Attorney General. [
Respondent Wiley contends that “the matter of inquiring into Barbieri‘s qualifications is res adjudicata” since relator‘s motion to strike the said charges from his answer was overruled by this court. The motion was in effect a special demurrer directed to a portion of respondent Wiley‘s answer, it was overruled. Assuming the order was sufficient to bar the refiling of the same or another such motion by the relator (State ex rel. Mueller Furnace Co. v. Buckner, 207 Mo. App. 48, 229 S. W. 392, 393), it was not binding upon this court in the further consideration of the cause. [Rolleg v. Lofton (Mo. App.), 230 S. W. 330.] It did not create issues which did not exist. It could not authorize the introduction of evidence which did not tend to support respondent Wiley‘s claim to the office, nor tend to support or refute some issue as between relator and respondent Barbieri. Respondent Barbieri could not be required to prove, as against relator, facts alleged and conceded by the relator. We hold that there was no issue between relator and respondent Barbieri with respect to said charges (made by respondent Wiley) and, in this proceeding there could be no issue thereon as between the respondents. [See, also, Masonic Home of Missouri v. Windsor, 338 Mo. 877, 92 S. W. (2d) 713, 717; Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 336 Mo. 453, 79 S. W. (2d) 257, 260.] Respondent Barbieri was not required to establish his right to the office as against said charges. The only controverted issue of fact between respondent Barbieri and relator was the issue as to the election of a qualified successor.
As between relator and respondent Wiley, the pleadings presented the issue of the respondent Wiley‘s right to the said office, but, in view of the admissions made at the hearing, the only question in dispute was the sufficiency of his residence in DeKalb County. The burden of establishing this issue rested upon him. The question, therefore, of respondent Wiley‘s residence is decisive as to both respondents. Respondent Wiley supported the affirmative of this issue and respondent Barbieri the negative. Each had the burden of proof as against relator.
Respondent Wiley contends the commissioner erred in admitting certain testimony over his objection that it did not tend
“Even though the reception of evidence were error it would not require the recommittal of the case to the commissioner since we are at liberty to disregard any evidence which we consider incompetent and since we are not bound by the commissioner‘s findings.” [State on inf. McKittrick, Atty. Gen., v. Graves, 346 Mo. 990, 144 S. W. (2d) 91, 94] We think the evidence objected to was competent and properly admitted. Although Rule 37 of this court requires the payment of bar fees to the Circuit Clerk of the county “wherein the lawyer maintains an office,” the fact that such fees were paid successively in Johnson County, Clinton County and DeKalb County could be considered along with the other competent evidence in the record in determining where respondent resided during the year immediately preceding the general election of 1940. The affidavit filed under the Corrupt Practice Act in Johnson County on December 6, 1938, was certainly an admission that respondent had made the race for a public office in Johnson County and it was of some value as an admission that he resided in such county at that time. With reference to the Notary Public‘s commission and performance of duties thereunder, although
Respondent Wiley further contends the Commissioner erred in excluding competent, relevant and material evidence offered by him to prove residence in DeKalb County. Briefly, the evi
Was respondent Wiley a bona fide resident of DeKalb County for the twelve months immediately preceding the general election held on November 5, 1940? “The question (of residence) is one of fact which is often difficult to determine.” In re Ozias’ Estate (Mo. App.), 29 S. W. (2d) 240, 243; Trigg v. Trigg, 226 Mo. App. 284, 41 S. W. (2d) 583, 589; Dist. of Columbia v. Murphy, 62 Sup. Ct. 303, decided December 15, 1941. In the latter case Justice JACKSON mentioned some of the many matters relevant to the determination of such an issue. Our only statute dealing with this question appears to be
We have set out, supra, the evidence relied upon by respondent Wiley to establish residence in DeKalb County for the required time and by respondent Barbieri to show that no qualified successor had been elected. It is unnecessary to review this evidence again. We think it fails to show any physical act of staying, abiding or residing in DeKalb County, prior to June, 1940, with the present intention, then and there, to remain and to establish residence in said county. At no time prior to the date mentioned did respondent declare himself to be a resident of said county or by any word or act indicate a present intention to acquire residence in said county, or that resi
We hold that respondent Wiley was not a bona fide resident of DeKalb County for twelve months immediately preceding the general election held on November 5, 1940. He, therefore, did not possess requisite qualifications to be elected and hold the office of Prosecuting Attorney of said county by virtue of said election and he has no
With reference to respondent Barbieri, we cannot overlook the admission that the actual fact is that at the time he took office he may have been subject to exactly the same disqualification as was respondent Wiley when he undertook to take office; nor may we overlook the evidence from which an inference might be drawn that respondent Barbieri failed to comply with
When it appears from the record that a party has a valid right; claim or cause of action and that because of available evidence further proceedings are necessary to do justice, this court has discretion to remand the case for the purpose of allowing an amendment in accordance with the facts disclosed and a retrial on the correct theory applicable to the facts. [Hetzler v. Millard, 348 Mo. 198, 153 S. W. (2d) 355; Jensen v. Wilson Township, 346 Mo. 1199, 145 S. W. (2d) 373, and cases cited; Byrne v. Prudential Ins. Co. (Mo. Sup.), 88 S. W. (2d) 344.] Certainly this principle should be applied, in a matter of public interest and importance, in an original proceeding in this court; especially when otherwise the result might be to allow one, who is not entitled thereto, to receive pay from public funds. The proceeding against respondent William M. Barbieri is continued with leave to relator to amend the information as to him in accordance with the admitted facts and the evidence appearing in the record and for further proceedings in the event the amendment is made. If the amendment is not made within 30 days from this date, the proceeding as to respondent Barbieri will be dismissed without prejudice. Hyde and Bradley, CC., concur.
PER CURIAM:— The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.