Section 14.4 Public Office

• Library: App Ct Prac 2015 Supp

2. (§14.4) Public Office

As to a public office, quo warranto may be used to determine:

· the legality of the existence of the office, State ex rel. O’Sullivan v. Coffee, 59 Mo. 59 (1875);

· the qualifications of the claimant;

· the legality of the election or appointment, State ex rel. Harrison v. Frazier, 11 S.W. 973 (Mo. 1889);

· the right to exercise certain powers;

· the question of the forfeiture of an office by misconduct in the office that is, up to that point, legally held; and

· whether the officer should be ousted from an office since abolished, State ex inf. Barker v. Smith, 196 S.W. 17 (Mo. 1917); State ex inf. Danforth v. Butler, 524 SW.2d 1 (Mo. banc 1975).

Quo warranto is not appropriate against an officer subject to impeachment. State ex inf. Nixon v. Moriarty, 893 S.W.2d 806 (Mo. banc 1995); State ex inf. Shartel v. Brunk, 34 S.W.2d 94 (Mo. banc 1930).

“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.” Mo. Const. art. VII, § 4. Under this provision, the legislature has enacted various statutes providing for forfeiture of particular offices for certain acts or failures to act. The following is a partial list of these statutes (all references are to RSMo 2000 unless otherwise indicated):

Section Number Name of Office Forfeited

29.020 State Auditor

30.030 State Treasurer

36.150, 36.410, and 36.460 State Merit System employee

56.380 Circuit Attorney

52.400 and 52.430 County Collector

57.010, RSMo Supp. 2002 County Sheriff

50.320 County Treasurer

230.100 County Highway Commissioner

84.400 Kansas City Police Commissioner

84.080 St. Louis Police Commissioner

106.220 County and Municipal Officers

—Misconduct

561.021 Any public officeholder—

conviction of felony

See also Mo. Const. art. VII, § 6, for forfeiture for nepotism.

Under an action for statutory forfeiture, the court does not consider and evaluate the acts the officer respondent has performed and decide for itself, in the exercise of its discretion, whether ouster should be adjudged. Rather, if the court finds that the respondent has committed acts for which the legislature has prescribed forfeiture of office, the judgment of ouster follows as a matter of course. See State ex inf. Dalton v. Mosley, 286 S.W.2d 721 (Mo. banc 1956); State ex inf. McKittrick v. Wymore, 119 S.W.2d 941 (Mo. banc 1938); State on inf. McKittrick v. Graves, 144 S.W.2d 91 (Mo. banc 1940); State on inf. McKittrick v. Williams, 144 S.W.2d 98 (Mo. banc 1940). Conversely, if the acts of the respondent are not those for which the legislature has provided a forfeiture, the court cannot enter its judgment of ouster. Mere misconduct (even if criminal), if it does not itself work a forfeiture of office, is not sufficient to authorize a judgment of ouster. State ex inf. Dalton v. Mosley, 286 S.W.2d at 731. Conviction in a criminal trial is not a prerequisite, and the existence of other remedies, such as a statutory removal procedure, does not prevent the judgment of ouster in quo warranto. State ex inf. McKittrick v. Wymore, 119 S.W.2d at 948; State ex inf....