author: PER CURIAM.

text:
    STATE ex inf. George A. PEACH, Circuit Attorney, St. Louis City, Relator, v. Benjamin L. GOINS, Sheriff of the City of St. Louis, Respondent.
    No. 60873.
    Supreme Court of Missouri, En Banc.
    Nov. 9, 1978.
    Rehearing Denied Dec. 18, 1978.

      George A. Peach, pro se.
    Terrence J. O’Toole, First Asst. Circuit Atty., St. Louis, for relator.
    Burton H. Shostak, St. Louis, for respondent.
   PER CURIAM.

This is an original proceeding in quo war-ranto filed by the relator, the circuit attorney of the City of St. Louis, to declare that the respondent, Benjamin L. Goins, the sheriff of the City of St. Louis has forfeited his office because he has been found guilty by a jury and sentenced by the United States District Court for certain felony offenses against the United States. We have original jurisdiction. Art. V, § 4, Mo.Const.

I.

The facts are not complicated or complex but the legal issues involved are not easily resolved and raise important questions relating to the holding of the public office of sheriff.

In April, 1977, the respondent, Benjamin L. Goins was elected sheriff of the City of St. Louis. He qualified and entered upon the duties of that office on June 3, 1977. Prior to entering upon his duties as sheriff, respondent was the license collector of the City.

On April 10,1978, the Grand Jury for the Eastern District of Missouri charged respondent with several felony offenses in violation of federal laws. Count I alleged that § 558.020 prohibits a public official from accepting money or a promise of money under an agreement to perform an official duty with partiality or favor and charged him with a pattern of “racketeering activity” in violation of 18 U.S.C. sections 1962(a) and 1963. Count II charged respondent with “knowingly” making “false material declarations” before the Grand Jury in violation of 18 U.S.C. section 1623.

Count III charged that the respondent obstructed the due administration of justice by advising and counseling a grand jury witness to give false testimony in violation of 18 U.S.C. section 1503. Counts IV, V and VI charged respondent with false income tax returns for the years 1973, 1974 and 1975, in violation of 26 U.S.C. section 7206(1).

Trial on the indictment was held in June, 1978. On June 24, 1978, after a two week trial the jury returned verdicts of guilty on all six counts. On July 14, 1978, the District Judge found in his judgment that the respondent “has been convicted as charged of the offenses of [1] engaging in a pattern of racketeering activities while he was the duly elected License Collector of the City of St. Louis, ... in that he knowingly and unlawfully violated Section 558.020, Revised Statutes of Missouri (1969) . In violation of Title 18, United States Code, Sections 1962(a) and 1963, as charged in Count I of the Indictment;” [2] “knowingly while under oath before the Grand Jury, made false material declarations then knowing said declarations were false, while said Grand Jury of the United States had been duly empaneled and sworn and were investigating corruption in the government of the City of St. Louis . . . In violation of Title 18, United States Code, Section 1623, as charged in Count II of the Indictment;” [3] “endeavored to influence, obstruct and impede the due administration of justice in the United States District Court ... by urging, advising and counseling a prospéctive witness to give false and misleading testimony before the Grand Jury of said District, [i]n violation of Title 18, United States Code, Section 1503, as charged in Count III of the Indictment;” and [4] “willfully and knowingly made . . . United States Individual Income Tax Returns, . . which ... he did not believe to be true and correct . In violation of Title 26, United States Code, Section 7206(1), as charged in each of Counts IV, V and VI of the Indictment.”

On Count I, the court sentenced the respondent to a term of five years and a fine of $3,000.00; on Count II, respondent was sentenced to a period of one year and fine of $1,000.00 to run- consecutively with the term imposed under Count I; on Count III, respondent was sentenced to a term of one year and fined $1,000.00, imprisonment to run consecutively with the terms of confinement imposed under Counts I and II and on Counts IV, V and VI, respondent was sentenced to a term of one year and fined $1,000.00 on each count but placed on probation for a period of five years. Hence, respondent was sentenced to a total of seven years and fined $8,000.00.

II.

On July 17, 1978, respondent filed his notice of appeal to the United States Court of Appeals, and at the same time he de-dared his intention to remain in the office of sheriff pending the exhaustion of all appellate remedies.

On July 20, 1978, the relator — circuit attorney — filed an information in this court alleging the above facts, prayed that respondent be. “declared to have forfeited his office”, and that the office be declared vacant. In his suggestions relator contended that because the respondent had been “convicted” of several felonies, “he has become disqualified from holding, and has forfeited, an office in which he was initially qualified to serve.”

In Respondent’s response, he admitted that on July 14,1978, a judgment of “guilty and sentence” was imposed in the United States District Court, for the above violations, but contended that he had not been “convicted” of a felony “until he has exhausted all of his appellate remedies and therefore can not and should not be removed from office upon the allegations made.” To remove him prior to the exhaustion of all his appellate remedies would deny him of his liberty without due process and violate his civil rights contrary to 42 U.S.C.A. Section 1983. He admitted that the federal offenses have been appealed to the United States Court of Appeals and further contended, in effect, that since he had not been found guilty or sentenced on any offenses against the State of Missouri he has not been “convicted” of any felony in Missouri.

In addition to the response to the information, respondent filed (1) a motion to dismiss because relator failed to give a five day notice, contrary to Rule 84.24 and (2) a motion to remand to the circuit court because certain fact issues should be resolved and the proceeding more properly lies in that court.

The brief of the relator filed in this court essentially contends (1) that the respondent should be ousted because he has become disqualified from holding the office of sheriff under the provisions of either § 57.010 or § 557.490, or both, (2) that a finding of guilt and sentence in the federal court is sufficient to constitute a disqualification from office under the above statutes although the respondent has not been found guilty under specific Missouri law and (3) that respondent has forfeited his office because of the “convictions” in the federal court and such forfeiture is unaffected by the penden-cy of his appeal to the United States Court of Appeals.

Respondent opposes each of these basic contentions. Respondent contends that § 57.010 merely sets out the qualifications of the office of sheriff and is not a disabling or a disqualification statute and that § 557.-490 disqualifying a public official who has been convicted of perjury in another sovereignty does not authorize or allow forfeiture of office since no offense has been committed under Missouri law.

The essential issues therefore which we must resolve are (1) whether § 57.010 or § 557.490 or both disqualify the respondent from serving in the office of sheriff, (2) whether a finding of guilt by a jury and subsequent sentence thereon in the United States District Court of several felonies is sufficient to disqualify the respondent from the office although there has been no conviction for a felony in this state, and (3) whether the pendency of an appeal of the federal offenses precludes forfeiture of the respondent’s office.

III.

Before we reach the substantive issues, we deny the respondent's motion to dismiss and motion to remand the cause to the circuit court. Rule 84.24 provides that “ . . . Whenever the required [five day] notice would, in the judgment of the court, defeat the purpose of the writ, it may be dispensed with. . . . ” As respondent acknowledges, this provision expressly recognizes the power of the court to waive the notice requirement. The respondent was served with the petition and our order to show cause was issued. The rule is not jurisdictional. If the relator failed to comply with the strict requirements of the rule, we conclude that the interests of justice would best be served by waiving the requirements. Cf. State v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 614 (1936).

We also deny the motion to remand. Article V, Section 4, Mo.Const. vests concurrent jurisdiction in this court. Because of the importance of the issues, we accept jurisdiction and waive the procedural requirements of Rule 84.22. State ex inf. Roberts v. Buckley, 533 S.W.2d 551, 553 (Mo. banc 1976).

IV.

Turning to the substantive issues we must determine whether §§ 57.010 and 557.-490 constitute a disqualification for the office. Section 57.010 specifically and expressly provides that no person shall be eligible for the office of sheriff who has been convicted of a felony. Although the General Assembly in adopting this section did not specify that a conviction of a felony while in office would result in a disqualification from office, this interpretation is clearly and logically embodied therein. Not only does such an interpretation necessarily follow but public policy dictates such an interpretation. It is not logical to conclude that such a public official is disqualified from election if he commits a minor felony prior to election but is not disqualified if he commits a major one after taking the oath. Section 57.010 is a part of a larger scheme of qualifications for and disqualifications from public office.

An analogous issue was addressed by this court in State v. Sanderson, 280 Mo. 258, 217 S.W. 60 (Mo. banc 1919). In Sanderson, the attorney general instituted a proceeding in quo warranto to oust a prosecuting attorney. The relator’s argument was premised on a statute which specified the qualifications for the office of prosecutor and not on the conduct which led to the suspension of the prosecutor’s suspension from the practice of law. While not authorizing ouster because of a temporary suspension from the practice of law, the court chose not to decide whether a permanent disbarment from the practice of law would be a disqualification for the office of prosecutor. “ . [I]t becomes unnecessary to decide whether a judgment of permanent disbarment . . . of a prosecuting attorney would disqualify him ... to hold his position; ...” 217 S.W. at 61. But in State v. Stice, 186 Kan. 69, 348 P.2d 833 (1960) the Supreme Court of Kansas ruled that the statutory qualifications that a judge shall at the time of election be authorized to practice law requires that each attorney becoming a judge must continue to possess that right as a qualification for office. Although the statute in Stiee was worded in terms of a qualifying one, the effect was one of disqualification.

To adopt the respondent’s contention that § 57.010, is merely a qualifying and not a disabling statute would lead to illogical results, thwart the public policy behind the statute, and not be in accord with the above analogous authorities.

By its terms § 557.490 operates explicitly to disqualify a person from holding an office of honor, profit or trust who has been convicted of any perjury or subornation of perjury punishable “by any of the provisions of this chapter . . . .” Respondent does not contend that this section is not a disqualifying statute but rather contends that the section is inapplicable because it has no application to a “conviction” in another sovereign and does not apply since respondent has not been convicted in Missouri “by any of the provisions of this chapter, . . . ” This issue will be discussed infra.

We are compelled to conclude that § 57.010 is not merely a qualifying statute relating to the qualifications for election to the office of sheriff but is also a disabling or disqualification statute and is applicable to a person who has been “convicted” of a felony while in office. And for. reasons hereinafter stated we believe that § 557.-490, providing for the disqualification from holding any office of “honor, profit or trust within this state” for any person convicted of any perjury or subornation of perjury is not only a disabling statute but is applicable when a public officer has been found guilty of and sentenced for a felony in another sovereign which, if committed in Missouri, would have been a felony.

V.

We turn to the issue of whether the respondent is disqualified under the provisions of the above sections when he has been found guilty by the jury and sentenced by the federal court for the felony offenses although there has been no “conviction” of felony offenses in Missouri. The issue is certainly not new. The majority of jurisdictions which have addressed the issue hold that a “conviction” of a felony under federal law disqualifies a person from voting or holding public office in the state although he has not been “convicted” in the state system.

The seminal case in Missouri, a voting case rather than a public official case, is State v. Sartorious, 351 Mo. 1237, 175 S.W.2d 787, 149 A.L.R. 1067 (1943). There this court held that one who had entered a plea of guilty .to an indictment for attempting to evade payment of federal income taxes, a felony under federal law, did not have the right of franchise in Missouri. The respondent in that case, as the respondent here, argued that while he was guilty of a felony under federal law he had not been convicted of a felony under Missouri law. (In fact the offense in Missouri was a misdemeanor). In rejecting this contention, this court held that a conviction in the federal system of a felony was sufficient to disqualify the respondent from voting in Missouri. This court held that a person convicted of a felony under the laws of the United States was excluded from the right to vote in Missouri although he had not been “convicted” under the laws of Missouri. In the course of the opinion, the court relied upon State v. Langer, 65 N.D. 68, 256 N.W. 377 (1934).

“The manifest purpose [of disqualification] is to preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as against that of ignorance, incapacity, or tyranny. . . . Acts constituting felony may differ in different jurisdictions. Statutes simply embody the standard established by the public conscience . . . . But he who violates the statute must be held to know what he is doing when he does the prohibited act and to know the consequence in the way of penalty. His personal standard cannot be the measure of the character of the act or its depravity. . Accordingly, he who sets himself above the law and does an act, regarded by the United States as of so serious a nature as to be prohibited and penalized as a felony, may well be held in this state to be unfit to participate in governmental affairs.” (Quoted in Sartorious, 175 S.W.2d at 790).

Thus it is clear that a finding of guilt and sentence thereon in the federal system is sufficient, under the above and other numerous authorities, to disqualify a person from holding an office of honor, trust or profit although he has not been “convicted” of such offenses in this state. The respondent here was found guilty of several felony offenses under the laws of the United States which if committed in Missouri would have been felonies in this state. The language of § 557.490 requiring a conviction of perjury or subornation of perjury “by any of the provisions of this chapter”, does not, in our opinion, preclude disqualification from holding any office of honor, profit or trust within this state. It is sufficient, under the authorities, for disqualification from public office to have been found guilty and sentenced for violations of felony offenses under the federal laws as long as those offenses would be felonies if committed in this state.

Consequently, we hold that the respondent, having been found guilty and sentenced in the federal system for felony violations under the federal laws, is within the purview of §§ 57.010 and 557.490 and is subject to disqualification from office although he has not been convicted under the laws of Missouri. “Conviction” under federal laws provides the basis for disqualification from public office since the offenses would be felonies under Missouri law.

VI.

We turn to the crucial and core issue in this proceeding. Respondent contends that “he has not been convicted . until he has exhausted all of his appellate remedies” and hence is not disqualified from office. He argues that both “reason and justice” dictate this conclusion. Respondent contends that he has not been “convicted” of a felony as that term is used in Missouri law so as to require the respondent’s disqualification.

The issue is not resolved easily. On the one hand the respondent’s federal cause may be reversed on appeal and he may be discharged from all the offenses for which he was found guilty; on the other hand permitting the respondent to discharge his official duties may well be detrimental to the public interest.

Section 57.010, as well as many other statutes in this state, does not define the term “conviction” in explicit detail.

Numerous statutes and rules in this state use the term without providing a guidance as to an exact definition. The meanings of the term range from a simple finding of guilt by judge or jury to an exhaustion of the appellate process, depending upon the context of the proceeding and the policy involved.

In some contexts there is no conviction until the appellate process is exhausted. For example in State v. Blevins, supra, we held that for purposes of impeaching a witness there is no “conviction” within the meaning of § 491.050, until there was a final judgment made so by affirmance on appeal or by lapse of time permitted for notice of appeal.

Recently in Warren v. Director, Missouri Division of Health, supra, the Kansas City District stated that the term conviction is used in its popular sense of a verdict of guilty when reference is made to the successive steps in the criminal proceeding, but it may be used in a more strict sense of requiring a final judgment when the context of the situation involves some collateral adverse consequences such as the loss of privileges or the imposition of a disability. Warren, 565 S.W.2d at 743. No issue of appeal was there involved.

In the great number of decisions in other states which have faced this core issue, dealing with disqualification of public officials although the case is pending on appeal, the overwhelming majority of decisions have held that even though an appeal is taken from a finding by the jury of guilt and sentence thereon, there is a “conviction” within the meaning of statutes providing for the disqualification of a public officer from holding office.

“A majority of the cases, where there were provisions declaring, in substance, that a public office shall become vacant upon the incumbent’s conviction of a felony . . have been that, notwithstanding an appeal, there was a conviction within the meaning of the provisions and that such conviction caused an immediate vacancy despite the appeal . . . 71 A.L.R.2d at 600.

The authorities are numerous. The rationale found therein are sound: (1) when there has been a verdict of guilty and sentence thereon, the presumption of innocence no longer follows the person; (2) respect for the law and deference to the trust placed in a public official require that such an official forfeit his office after the presumption of innocence is dispelled by a finding of guilt and sentence; (3) respect for the law and confidence in public officers cannot be compelled — “These attributes stand as a voluntary tribute to just laws and integrity in public office. While they exist, both the law and the official will retain public trust.” People v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168, 177, 71 A.L.R.2d 580 (1958), cert. den. 358 U.S. 828, 79 S.Ct. 46, 3 L.Ed.2d 67 (1958); and (4) the reason for any such disqualification is to protect the public and to retain the confidence of the public.

Probably one of the better statements which demonstrates the underlying policy of the law is State v. Langer, supra, 256 N.W. at 389:

“When a person is convicted of a felony, the presumption of guilt immediately attaches, and this presumption is not destroyed or abrogated by an appeal. It is against public policy and against the best interests of sound government that one convicted of a felony shall continue to . enjoy the privileges and prerogatives [of public office]. The rights of the public must be paramount to the rights of the individual.”

Under these authorities the public interest in the integrity of public officials requires that a public official be free from criminal taint and not be blemished with a conviction of felony, although the cause is pending on appeal. The public is entitled to the service of public officials who are of the highest character. It is of paramount importance to the people to have confidence in the honor and integrity of public officials. Society expects much from its public officials and rightly so. The public interest demands that public affairs be administered by officers upon whom rests no stigma of conviction of a felony.

Hence, we conclude that, when the respondent was found guilty and sentenced in the federal system for the several felonies the robe of innocence was stripped from him. We hold that upon the finding of guilt and sentence thereon in the federal court, respondent was then “convicted” for purposes of disqualification from office despite the pendency of an appeal. Disqualification from office does not violate any of the respondent’s constitutional rights. One has no constitutional right to a public office. See O'Neil v. Baine, 568 S.W.2d 761 (Mo. banc 1978).

m

The proper remedy is quo warran-to. This proceeding is of ancient origin. At common law it “was one of the ancient high prerogative writs of right for the King by which inquiry was made into the legality of the claim of one who purported to have the right to enjoy and exercise an office, right or privilege granted by the Crown, and by which a usurper of such royal franchise was ousted.” Mo. Bar CLE, Appellate Practice and Extraordinary Remedies—Quo Warranto at 10-2 (2d ed. 1974); See also State v. Murphy, 347 Mo. 484, 148 S.W.2d 527, 530 (Mo. banc 1941). Quo warranto is the proper remedy to determine title to office. The writ is not directed against the individual claiming the office. It is directed against his right to hold the office. It is not an action in the interest of any individual. It is an action to protect the public against usurpation. State v. Wymore, 119 S.W.2d at 943.

The proper remedy is ouster under the principles relating to quo warranto. While there is some discretion in the judgment to be imposed in some quo warranto proceedings, proceedings relating to a forfeiture or disqualification of public office stand on a different footing and involve little discretion. Where there has been a forfeiture of the right to hold public office, the proper judgment is ouster. See State v. Mosley, 286 S.W.2d at 732 [on rehearing].

VIII.

We hold that because the respondent has been “convicted” of certain felonies against the laws of the United States that he is not eligible to continue in the office of sheriff, although the cause is pending on appeal in the federal system. We therefore conclude that the respondent is ousted from the office of sheriff of the City of St. Louis. Costs to be fixed one-half against relator and one-half against the respondent.

It is so ordered.

All concur.

      . Section 558.020, RSMo 1969 prohibits any public officer from directly or indirectly accepting or receiving any gift, consideration, or gratuity or reward, or any promise or undertaking to make the same. All references are to RSMo 1969 unless otherwise indicated.

      . Section 557.010, establishes the offense of perjury in Missouri. Section 557.490, provides that “Every person who shall be convicted of any perjury or subornation of perjury, punishable by any of the provisions of this chapter, shall be disqualified from . holding any office of honor, profit or trust within this state.”

      .Section 557.040, provides that subornation of perjury is an offense, and § 557.080, makes it a felony to attempt to corrupt a witness in any “cause, matter or proceeding, in or concerning which such other person might by law be sworn or affirmed . . . .”

      . Respondent contends that the provisions of the new criminal code § 561.021, RSMo Supp. 1977, specifically provide for forfeiture of office if a person is convicted under the laws of this state or under the laws of another jurisdiction which if committed in Missouri would be a felony. He contends that this shows the legislative intent that under the present laws the General Assembly intended that forfeiture of office under the present laws can only take place when a person has been convicted under Missouri law.

      . “No person shall be eligible for the office of sheriff who has been convicted of a felony. . . ."

      . “Every person who shall be convicted of any perjury or subornation of perjury, punishable by any of the provisions of this chapter . . . shall be disqualified from voting at any election, or holding any office of honor, profit or trust within this state.”

      . It should be noted that the procedures of law, to remove public officials from office, § 106.-220, do not divest this court of jurisdiction in a quo warranto proceeding. State ex inf. Roberts v. Buckley, 533 S.W.2d at 553; State v. Orton, 465 S.W.2d 618, 628 (Mo. banc 1971), cert. den. 404 U.S. 852, 92 S.Ct. 90, 30 L.Ed.2d 92 (1971); State v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 945 (1938).

      . Respondent contends that § 57.010 only deals with the election of a person to the office of sheriff and provides for the qualifications of the sheriff and that it does not deal with the disabling or disqualification of the office holder. He contends that the title of the act relates to qualifications and to use the statute as a disqualifying provision would violate Art. Ill, Sec. 23 prohibiting bills from containing more than one subject. We recently discussed this constitutional section in Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194 (Mo. banc 1978). The principles there are applicable and we hold that the title of the bill of § 57.010 is not subject to any constitutional infirmity.

      . Article III, Sec. 4, Mo.Const., recognizes that a public official convicted of a felony may be excluded, by law from voting. Section 106.220, provides that an elected official who is guilty of any willful violation or neglect of duty shall forfeit office. For cases dealing with this section in quo warranto proceedings, see e. g., State v. Orton, supra,—sheriff ousted for misconduct; State v. Mosley, 365 Mo. 711, 286 S.W.2d 721 (Mo. banc 1956)—sheriff ousted for willful failure to enforce the law; State v. Williams, 346 Mo. 1003, 144 S.W.2d 98 (Mo. banc 1940)—sheriff ousted for neglect of official duty.

      . See cases collected in Annotations 175 A.L.R. 784 (1948); 20 A.L.R.2d 732 (1951) and 39 A.L.R.3d 303 (1971).

      . Ellison, J., concurred in the result because of his misgivings that the majority held that a conviction of any felony in another sovereign was sufficient to disqualify a person in Missouri.
      On the authority of Sartorious, the decision of a board of election commissioners to strike a name from the roll of eligible voters because he had been convicted of a felony of income tax evasion under the laws of the United States even though the conduct would only have been a misdemeanor in Missouri was upheld in Bruno v. Murdock, 406 S.W.2d 294 (Mo.App.1966).

      . Respondent was found guilty and sentenced in the federal system of at least three felonies which would be felonies in this state: (1) racketeering — Missouri equivalent — § 558.020, (2) false statements to grand jury — Missouri equivalent — §§ 557.010 and 557.020, (3) obstructing the administration of justice by urging a witness to give false testimony — Missouri equivalent §§ 557.040, 557.050, and 557.080.

      . “To hold otherwise, as relator seeks, is to permit a situation wherein respondent, while his case is on appeal, could testify at a trial without fear of perjury that he has not been convicted of a crime (State v. Blevins, 425 S.W.2d 155 [(Mo.1968)]), while at the same time having been ousted from office because he has been convicted of a crime.”

      . See §§ 57.490, 57.100 and 84.200.

      . Neither does the new criminal code relating to forfeiture from office.

      . See e. g., Art. VIII, Sec. 2 — voting; Section 7.010 of the Comprehensive Election Act of 1977; Section 43.060, — no “convicted” person to be appointed to highway patrol; Section 84.120, — municipal police force to be composed of persons not “convicted”; Section 311.060 and 312.040, — liquor license not to be issued of persons “convicted” of a violation of liquor laws; Section 326.130, — profession of accountancy can be denied to a person “convicted” of a felony; Section 327.441, (architect); Section 330.160, (podiatry); Sections 332.321, 332.331, (dentists); Section 335.066, RSMo 1975 Supp. (nurse); Section 339.110, (real estate broker); Article V, Section 24, Mo.Const. (judges); Section 195.040-2, — controlled substance; Section 491.050, — suspended imposition of sentence is not a conviction at least for purposes of licen-sure. See Warren v. Director, Missouri Division of Health, 565 S.W.2d 740 (Mo.App.1978). This is not an exhaustive list.

        . Ex parte Collins, 94 Mo. 22, 6 S.W. 345 (1887); Section 556.020.

      . Warren was decided in the context of refusing a license to a physician to dispense controlled substances on the ground that he had been convicted of a federal narcotics violation and was given a suspended imposition of sentence. In this context the court held there was no conviction. Appeal of the federal offense was not involved. Warren did not involve a public official.

      . Respondent relies upon State ex rel. Larew v. Sale, 188 Mo. 493, 87 S.W. 967 (1905) which held that an attorney cannot be suspended from practicing his profession while an appeal was pending. This case is not controlling. It did not involve a public official. Cf. Rule 5.20 which changes the effect of Larew.

      . See Annot., 71 A.L.R.2d 593, 599-605 (1960).

      . Under the provisions of law in other states, it is held by the great majority of jurisdictions that a public office is vacated upon a verdict of guilty and sentence thereon and that an appeal does not stay the effect of such vacancy. See People v. McGuane, 150 N.E.2d at 177 and numerous cases cited therein — writ of mandamus denied to assessor seeking restoration to office; State v. Twitchell, 59 Wash.2d 419, 367 P.2d 1985, 1991 (banc 1962) and numerous cases cited therein — sheriff ousted pending appeal; State v. Sullivan, 66 Ariz. 348, 188 P.2d 592, 599 (1948)—attorney general ousted pending appeal; McKannay v. Horton, 151 Cal. 711, 91 P. 598, 601 (1907); State v. Redman, 183 Ind. 332, 109 N.E. 184, 188 (1915)—circuit judge removed although federal case pending on appeal; State v. Jurgenson, 135 Neb. 136, 280 N.W. 886, 889 (1938), cert. den. 307 U.S. 643, 59 S.Ct. 1047, 83 L.Ed. 1523 (1939)—lieutenant governor ousted although conviction on appeal; State v. Langer, supra; In re Obergfell, 239 N.Y. 48, 145 N.E. 323 (1924); State v. Chapman, 187 Wash. 327, 60 P.2d 245, 246, 106 A.L.R. 640 (1936); State v. Levi, 109 W.Va. 277, 153 S.E. 587, 589 (1930); Becker v. Green County, 176 Wis. 120, 184 N.W. 715, 718 (1921) aff'd, 186 N.W. 584, 585 (1921); Smith v. Noeppel, 204 Misc. 49, 120 N.Y.S.2d 466, 469 (1953)—police captain; Bucklew v. State, 192 So.2d 275, 276 (Miss.1966).

      .Additional reasons generally given are: (1) removal from office resulting from conviction is not a punishment but is a consequence imposed in the interest of the public and sound government, (2) it would be against the public interest to retain in office, pending an appeal, one who upon a verdict of guilty and sentence was no longer presumed to be innocent. See 71 A.L.R.2d at ,600; see also 20 A.L.R.2d at 734.


source: Caselaw Access Project

author: SEILER, Judge. BARDGETT, Judge, ALDEN A. STOCKARD, Special Judge,

license: Public Domain

text:
    Grace WHITE, Dorothy Bennett Brooks, William A. Bennett, Lee Bennett and Gerald Bennett, Appellants, v. Walter L. MULVANIA, Executor of Estate of Mary Bennett, Deceased, Howard Wenger, Executor of Estate of Mary Bennett, Deceased, in Iowa, Joseph Lionel Smith, Cinthia Ann Smith, Saint Vincent Home, Harriett Garrett, John Garrett, John Gude, Clara Jean Gude, Hugh Gardner, and Alton Vogel, Respondents.
    No. 60329.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    Rehearing Denied Jan. 8, 1979.

      Joseph L. Flynn, St. Joseph, for appellants.
    Theodore M. Kranitz, St. Joseph, Stephen A. Lovejoy, Lincoln City, Or., for respondents.
   SEILER, Judge.

This case was transferred here by the court of appeals, Kansas City district, because of the general interest and importance of the question involved and for clarification of the law in light of a possible conflict between its decision and O’Leary v. McCarty, 492 S.W.2d 124 (Mo.App.1973).

The case presents two issues. The first is whether plaintiffs have sufficiently pleaded fraud by alleging that the supposed wrongdoer misrepresented his state of mind to a testatrix, with whom he had an unspecified confidential relationship by making a promise to her, on which she relied, which he had no intention of fulfilling and in fact did not fulfill.

The second issue arises if the first is resolved affirmatively: whether a constructive trust may be imposed on innocent parties who receive property under a will where the devolution of such property to them was the result of actual or constructive fraud upon the testatrix.

The trial court dismissed the petition. The court of appeals reversed and remanded, as do we.

I.

For the purpose of determining whether a cause of action was pleaded, we assume the facts to be as alleged by plaintiffs in their second amended petition. Plaintiffs plead that Mary Bennett, the testatrix, a resident of Missouri, died January 31, 1975 leaving a will executed January 6, 1972, which devised the residue of her estate to her only child, Lucy Ann Smith, who had died domiciled in Oregon on December 5, 1973, leaving as her heirs two adopted children, the defendants-respondents herein (hereinafter referred to as the defendants).

Plaintiff’s petition then asserts:

“That upon the death of Lucy Ann Smith, one Stephen A. Lovejoy, an attorney in the State of Oregon, who had drawn the Will of Lucy Ann Smith and had been named as Executor of her Will, while acting in a confidential relationship, fraudulently advised, counseled and persuaded Mary Bennett to permit him to take custody of said children and to be appointed the Guardian of their estate and obtained her written agreement thereto, and in consideration thereof he would adopt said children without delay and that . . [they] would no longer be the heirs of Mary Bennett.
“That Stephen A. Lovejoy was given custody of said children and was appointed the Guardian of their persons and estates but thereafter, fraudulently failed and refused to comply with his contract and agreement with Mary Bennett stating he would not do so until after the death of Mary Bennett so that said children would inherit from Mary Bennett, but failed to so advise Mary Bennett of his decision.
“That Mary Bennett, by reason of said fraudulent representation, thereafter during the balance of her life believed”

that the children were not her heirs and that the portion of her estate directed to be distributed to Lucy Ann Smith would instead go to the plaintiffs, heirs at law of the testatrix if the children had been adopted by Lovejoy, and that “by reason of said fraudulent representations on the part of Stephen A. Lovejoy, . . . Mary Bennett, relying upon said false and fraudulent representations, was effectively induced not to change her Will so as to show her true intent and will.” This resulted in denial to the plaintiffs, kindred of the testatrix’s husband who would take if the adopted children were not heirs, of the property which they would have had but for Lovejoy’s fraud. Plaintiffs thus pray for imposition of a constructive trust on the property in favor of themselves as Mary Bennett’s heirs at law.

II.

While plaintiff’s second amended petition is not a model of clarity, we conclude that upon a fair reading it does allege that Lovejoy was guilty of both actual and constructive fraud upon Mary Bennett, the testatrix. Either type of fraud if proved would entitle plaintiffs to a constructive trust of the property. A constructive trust is available to one who has been denied his right to property because of the wrongful actions of another. Skidmore v. Back, 512 S.W.2d 223 (Mo.App.1974). As is gone into below, the fact that third parties, the children, and not the wrongdoer, were beneficiaries of the fraud does not prevent imposition of a constructive trust.

Plaintiffs asserted a number of grounds for relief below, in addition to their request that a constructive trust be imposed. Both parties, particularly defendants, extensively briefed these issues on appeal. Certain of these issues may become relevant upon remand should the plaintiffs persist in pressing their alternative grounds for relief. However, it is unnecessary for the court to reach these issues for the purposes of this appeal. If any set of facts are asserted which, if proved, would entitle the plaintiffs to relief, the motion of defendants to dismiss the plaintiffs’ second amended petition must be denied. Watson v. Franklin Finance Co., 540 S.W.2d 186 (Mo.App.1976). If any of plaintiffs’ alternative grounds for relief are sufficient “the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.” Rule 55.10.

Rule 55.15 requires that all aver-ments of fraud state the circumstances constituting the fraud with particularity. It permits necessary conditions of mind, such as intent, to be averred generally. Id. Plaintiffs have stated with barely acceptable particularity the circumstances constituting the alleged promise by Lovejoy. They have also asserted both that after the time he made the promise he stated that he had no intention of fulfilling it, and that there was a confidential relationship between Mr. Lovejoy and the testatrix. Rule 55.05 has been interpreted liberally to give a pleading “the benefit of all inferences fairly deducible from the facts stated”, Hall v. Smith, 355 S.W.2d 52, 55 (Mo.1962); Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976) for the purpose of permitting a petition to survive a motion to dismiss. We think that, by inference, plaintiffs have averred generally that Lovejoy did not intend to keep his promise when he made it and thus misrepresented his state of mind at the time he made the promise relied on by Mary Bennett.

Defendants assert that, even if the circumstances of the fraud were well-pleaded, a misrepresentation of a state of mind cannot by itself constitute actual fraud. Rather they say that actual fraud must be predicated on a misrepresentation of “a present or pre-existing fact, and . ‘cannot ordinarily be predicated on unfulfilled promises or statements as to future events’ ”, Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275, 278 (banc 1932), and “It is not sufficient that the promisor, when making the promise, had no intention of fulfilling it, if the promise was as to an act to be performed in the future”, Riss and Co. v. Wallace, 239 Mo.App. 979, 195 S.W.2d 881, 886 (1946).

While Reed and Riss have not been expressly overruled, we find that their application has been narrowed by later cases which hold that state of mind, or intent, is itself an “existing fact”, the misrepresentation of which can constitute fraud. Dillard v. Earnhart, 457 S.W.2d 666 (Mo.1970); Wallach v. Joseph, 420 S.W.2d 289, 295 (Mo.1967), cert. denied 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 362 (1967); Musser v. General Realty Co., 313 S.W.2d 5, 10 (Mo.1958). To the extent that Reed v. Cooke and Riss & Co. v. Wallace, hold otherwise, they are no longer to be followed.

III.

Plaintiffs have also pleaded constructive fraud, alleging that

“Lovejoy, an attorney in the State of Oregon, who had drawn the Will of Lucy Ann Smith and had been named as Executor of her Will, while acting in a confidential relationship, fraudulently advised, counseled and persuaded Mary Bennett to permit him to take custody of said children and to be appointed the Guardian of their estate and obtained her written agreement thereto, and in consideration thereof he would adopt said children without delay and that said [children] would no longer be the heirs of Mary Bennett.”

YJe think it was not necessary for the petition to specify whether the confidential relationship alleged was that of attorney-client or some other, for in equity a confidential relationship may be based on “a special confidence reposed on one side and resulting domination and influence on the other . . . with respect to property or business affairs . . .” Service Life Ins. Co. of Ft. Worth v. Davis, 466 S.W.2d 190, 196 (Mo.App.1971).

If such a confidential relationship can be proved at trial, proof of actual fraud is unnecessary. It is well established that the breach of a promise made during such a relationship will be considered constructively fraudulent because of the special reliance present. Service Life, 466 S.W.2d at 196; Swon v. Huddleston, 282 S.W.2d 18, 25-26 (Mo.1955); G. Bogert, Trusts and Trustees, §§ 482, 496 (2d rev. ed. 1978). Of course, plaintiffs will be required to prove at trial both the alleged breach of promise and the existence of the asserted confidential relationship.

IV.

Plaintiffs have thus alleged sufficient facts which, if proved, could permit the trial court to find actual or constructive fraud by Lovejoy. Assuming that fraud can be proved, the remaining question is whether this fraud can be the basis for imposition of a constructive trust on the adopted children of Lucy Smith.

As the court of appeals noted, if plaintiffs prevail the children will lose nothing they would have had but for the fraud. Although they did not participate in the fraud, they were unjustly enriched by it. It is long established law that persons have no fixed or vested interests as heirs at law before the death of the testator, Cox v. Fisher, 322 S.W.2d 910, 915 (Mo.1959) and that a testatrix need not have a good reason for giving her property to one set of relatives over another set; that it is her property to do with as she wishes, Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 847 (Mo.banc 1943). We hold that where, as is alleged here, the testatrix was induced not to change her will due to fraudulent misrepresentations, equity does not permit those who benefit solely because of the fraud to take. In so deciding we express our agreement with the Restatement of Restitution, which states that a constructive trust should be imposed

“[n]ot only where the person who acquires property by will or intestacy is himself the wrongdoer, but also where a third party is the wrongdoer The situation is in substance the same as though the third person had by fraud, duress or undue influence obtained a devise or bequest to himself and had gratuitously transferred it to another.”

Restatement of Restitution, § 184, Comment j (1937); see also id., Comment a.

Missouri commented favorably in a different factual context on an analogous formulation of this rule by Perry in Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527, 536 (1906), and in Goings v. Shafer, 214 Mo.App. 419, 253 S.W. 133, 136 (1923). These cases dealt with suits for money had and received. In Clifford Banking, plaintiff’s employee wrongly used money belonging to plaintiff to pay a personal debt of the employee owed to the defendant. Plaintiff sued defendant for return of the money. The court noted that equity as well as law supported the plaintiff’s right to the money, despite the fact that the defendant took it with no knowledge of the plaintiff’s claim to it, citing the following paragraph from J. Perry, 1 Perry on Trusts and Trustees, § 211 (7th ed. 1929):

“So property obtained by one through the fraudulent practices of a third person will be held under a constructive trust for the person defrauded, though the person receiving the benefit is innocent of collusion. If such person accepts the property, he adopts the means by which it was procured; or, as Lord Ch. Justice Wilmot said,. ‘Let the hand receiving the gift be ever so chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it.’ ”

Clifford Banking, 94 S.W. at 536. See also Goings v. Shafer, 253 S.W. at 136; York v. Farmers Bank, 105 Mo.App. 127, 138, 79 5.W. 968, 971 (1904).

The principle that an innocent third party is not entitled to keep property wrongfully procured for him by another is supported by inference in the case of Wallach v. Joseph, 420 S.W.2d 289 (Mo.1967), cert. denied, 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 362 (1967). There a third party, Harold Friedman, fraudulently induced the plaintiffs to execute a deed in favor of Jack Joseph. The court made Joseph a constructive trustee of the property for plaintiffs despite the fact that Friedman, not Joseph, was the wrongdoer. The opinion notes that Joseph was merely a straw party, acting for Friedman, but it also indicates that this fact was not a necessary one for it to impose the constructive trust by concluding that “. . .In any event, under the evidence, [Joseph] must be charged as a constructive trustee of the property because the execution of the deed was induced by the fraud of Harold Friedman.” Id. at 295, citing Restatement of Restitution, § 167 (1937) and Clifford Banking.

As mentioned at the outset of this opinion, the court of appeals found a conflict between its decision and that of O’Leary v. McCarty, 492 S.W.2d 124 (Mo.App.1973). The latter case involved an action for imposition of a constructive trust where it was alleged that a husband and wife transferred their interest in property held in a tenancy by the entirety to a straw party who then re-transferred it to the husband upon agreement by the husband to execute his will for the benefit of the wife’s heirs. Later, however, the lawyer who had handled the transaction unduly influenced the husband to make his will in favor of others, including the lawyer. The holding of the court of appeals in O’Leary was that a constructive trust could not be imposed on the husband’s heirs in these circumstances. In so doing, the court wrote as though there could be no constructive trust unless the wrongdoer is either the beneficiary or the alleged trustee. This is too narrow a view. There are instances, as in the present case, where the wrongdoer is a third party. The critical issue is whether the person who was disposing of the property was wrongfully influenced to make a disposition which he did not desire or contrary to what had been agreed upon. In such instance it would be inequitable to permit the person who would take as result of the fraud to prevail. To the extent, therefore, that O’Leary is contrary to what is said herein, the O’Leary case is no longer to be followed.

V.

We feel it incumbent upon us to emphasize what is not decided by this decision, as well as what is. We intend no implication as to the merits of plaintiffs’ claim. We do not know what actually transpired in Oregon. All that remains to be determined. We go no further at this time than to hold that the plaintiffs have sufficiently pleaded grounds for imposition of a constructive trust to avoid a motion to dismiss on the pleadings. That is, if the testatrix were fraudulently prevented from changing her will in favor of the plaintiffs due to the fraud, actual or constructive, of Lovejoy, then the property which devolves to the grandchildren solely as a result of this fraud must be held by them in a constructive trust for the plaintiffs. This result does not mean that we are decreeing, suggesting or advocating an equitable adoption. The question of adoption is irrelevant to our holding except insofar as it was the substance of the fraudulent promise. The grandchildren remain, after imposition of the constructive trust, in exactly the same relationship to the testatrix, and to Lovejoy, as before. The only change made is that if the plaintiffs can prove their cause of action, the children will not receive property which was not intended for them and which could only have come to them as a result of fraud, assuming the allegations of the petition to be true. The fact they are children does not per se enhance their position or change the applicable law. Had the fraud been some other fraudulent promise which subverted the true will and intent of the testatrix and resulted in the grandchildren’s taking only because of fraud, the result would be the same.

Nor is it correct to say, as has been suggested, that we are placing a “seal of validity” on a contract to “barter away” the grandchildren. Assuming the facts as pleaded by plaintiffs to be true, Mary Bennett had every intent to disinherit her grandchildren. Such was her right, for grandchildren have no guarantee of inheritance. Assuming what the petition alleges to be true, she was fraudulently induced not to do so by Lovejoy, on whose superior knowledge, purportedly offered in the context of a confidential relationship, she relied. Whether or not such is the fact we do not know at this stage. If, however, the allegations are true, then by imposing a constructive trust we would simply carry out the will of the testatrix to give her property to persons other than her grandchildren, an action which was within her rights.

We do not have before us the question of whether there was some sort of contract to adopt between Lovejoy and Mary Bennett or whether, if there was such a contract, it was wise or enforceable. The question is whether Mrs. Bennett had a right to rely on Lovejoy’s promise, if he made it. We find that she had such a right for two reasons.

First, if plaintiffs can prove a confidential relationship existed between Mary Bennett and Lovejoy, then she had no independent duty to investigate whether Oregon would otherwise permit the adoption. She had a right to rely on his representation as to both fact and law. Fredrick v. Bensen Aircraft Corp., 436 S.W.2d 765, 770 (Mo.App.1968); Selle v. Wrigley, 233 Mo.App. 43, 116 S.W.2d 217, 225-26 (1938) (where it was held that where defendant had represented to plaintiff that he had adopted him, he could not later claim that the plaintiff should have discovered the fraud).

Second, if plaintiffs cannot prove a confidential relationship, but can prove that Lo-vejoy made the promise to adopt to Mary Bennett without intending to keep it, and that she relied thereon, then the validity or enforceability of such a contract would be irrelevant. Mary Bennett relied on Love-joy’s promise that he would, as a matter of fact, adopt the children. She had no reason to consider whether or not an Oregon court would permit the adoption. “In this connection it should be kept in mind that [plaintiffs do] not sue for breach of the promis[e] [to adopt], but rather complai[n] of them as [the] inducing caus[e] of such fraud as produces a constructive trust.” Howard v. Howe, 61 F.2d 577, 579-80 (7th Cir. 1932), cert. denied, 289 U.S. 731, 53 S.Ct. 527, 77 L.Ed. 1480 (1933). Whether or not such a promise would be enforceable, a promise was made, with no intent of fulfilling it, relied upon, and breached. Although the question whether Lovejoy could in fact adopt the children is one of law, the reality of his willingness to adopt them is a matter of fact. It is on this that Mary Bennett relied. Cf. Messina v. Greubel, 358 Mo. 439, 215 S.W.2d 456, 458 (Mo.1948) (relied on statement that corporation was solvent, although could have checked records to learn of liens on real estate, ownership of property by United States, etc.).

Additionally, even if it be supposed that Mary Bennett had some duty to ensure that Lovejoy’s promise was capable of fulfillment, or that a contract to adopt was permissible, she had fulfilled that duty. Lovejoy was an attorney, executor of her daughter’s will, and according to the petition, was appointed guardian of the persons and estate of the children. She had no reason to believe that a court would not find him a fit parent. Adoption of the children would not be refused on the basis that it would deprive them of an inheritance, for in all events she did not want them to take her property and if no adoption took place it is contended she would have, as she originally intended, changed her will. Thus the adoption was no “scheme” which she had to use to disinherit the children.

From all the facts at her disposal, Mary Bennett was entitled to believe Love-joy’s promise that he would adopt the children. She had no reason to look further. There are two exceptions to the rule that one is not permitted to say that he has been misled as to a matter of law — both of which apply here: where there exists a confidential relationship, and “where one party is possessed or claims to be possessed of superior knowledge of the law and takes advantage of the other party’s ignorance of the law to mislead him.” Fredrick v. Bensen Aircraft Corp., 436 S.W.2d at 770.

VI.

On the basis of the foregoing discussion we hold that plaintiffs have sufficiently alleged both actual and constructive fraud and thus have asserted a sufficient basis on which to ground a constructive trust. We, of course, take no position on the merits of the case, but on the basis of the pleadings, the judgment must be reversed and the cause remanded with directions to reinstate the second amended petition.

MORGAN, C. J., and DONNELLY, and RENDLEN, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

ALDEN A. STOCKARD, Special Judge, dissents in separate dissenting opinion filed.

FINCH, J., not participating.

SIMEONE, J., not participating because not a member- of the court when cause was submitted.

BARDGETT, Judge,

dissenting.

I respectfully dissent. Although I am not familiar with the details of the laws of Oregon relating to adoption, I feel satisfied that under those laws the scheme allegedly proposed by attorney Lovejoy to Mary Bennett whereby he would adopt Lucy Ann Smith’s adopted children would, on its face, constitute a fraud on the courts of the state of Oregon and, in my opinion, a fraud upon the children. Plaintiffs’ petition itself demonstrates that such adoption would be contrary to the interests of the children and it is inconceivable to me that any court, if advised of the true facts pertaining to and the purpose of the proposed adoption, would order the adoption.

The testatrix had no right to rely upon such a fraudulent scheme being carried out. The testatrix Bennett could have made out a new will or a codicil to the existing one and, by a perfectly legal and proper method, thereby leave the children nothing.

I agree with the dissenting opinion of Stockard, Sp. J., and would affirm the judgment of the circuit court dismissing plaintiffs’ petition.

ALDEN A. STOCKARD, Special Judge,

dissenting.

I dissent.

This is a roundabout attempt by third party beneficiaries to enforce only a portion of a contract for adoption by seeking to impose a constructive trust on property. In my opinion the alleged contract for adoption between the adoptive grandmother and attorney-guardian should be declared violative of public policy. This court should not place a “seal of approval” upon a contract whereby an adoptive grandmother in effect barters away her adoptive grandchildren for a property consideration; in this case an augmentation of her residual estate.

Also, the petition fails to show good consideration for the contract to adopt which is required in order to have a valid contract. Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141 (1941). Yet the principa] opinion would permit an equitable partial enforcement of that contract by third parties who neither acted nor failed to act to their detriment by relying on the validity of the contract.

Enforcement at law or in equity of a contract to adopt should be refused when the welfare of the children involved would not be promoted, and certainly should be refused when enforcement would be to the detriment of the children. In this case, the majority opinion would permit a constructive trust on property in favor of strangers that would otherwise belong to the adoptive children, definitely to the detriment of those children, without any provision to assure to the children the benefits, if any, of the contracted adoption.

Finally, this is an equitable action. If the plaintiffs, as third party beneficiaries of the adoption contract, have been damaged by the alleged breach of the contract to adopt, they have an action at law for breach of that contract. If it be contended that the measure of damages is the value of the property they did not receive by way of inheritance, and that some or all is real estate resulting in an inadequate legal remedy, this equitable action is still discretionary. I would decline to entertain it and would leave the plaintiffs to their remedy at law.

      . Or.Rev.Stat. § 109.050 (1977) provides:
      “An adopted child bears the same relation to his adoptive parents and their kindred in every respect pertaining to the relation of parent and child as he would if he were the natural child of such parents.”

      . This outcome would obtain whether Missouri or Oregon law is applied. The Missouri statute, § 453.090, RSMo 1969 states that
      “When a child is adopted in accordance with the provisions of this chapter, all legal relationships and all rights and duties between such child and his natural parents . shall cease and determine. Said child shall thereafter be deemed and held to be for every purpose the child of his parent or parents by adoption, as fully as though born to him or them in lawful wedlock.”
      Or.Rev.Stat. § 109.041(1) (1977) provides:
      “The effect of a decree of adoption heretofore or hereafter granted by a court of this state shall be that the relationship, rights and obligations between an adopted person and his descendants and
      (a) His adoptive parents, their descendants and kindred, and
      (b) His natural parents, their descendants and kindred
      shall be the same to all legal intents and purposes after the entry of such decree as if the adopted person had been born in lawful wedlock to his adoptive parents and had not been born to his natural parents.”
      The Restatement (Second) of Conflict of Laws § 290, Comment b (1971) states that in the majority of jurisdictions the right of an adopted child to inherit is determined by the law of the situs of the property if it is real, and the law of the domicile of the decedent at the date of his death if the property is personal.

        Mutual Life Ins. Co. of N. Y. v. Benton, 34 F.Supp. 859 (W.D.Mo.1940) stated that “[T]he status of an adopted child and his capacity to inherit are governed by the laws of the forum authorizing the adoption.” Id. at 862. However, in 1945, the following statute, now § 453.-170, RSMo 1969, was adopted providing as follows:
      “Any person adopted pursuant to the laws of other states of the union, whenever the adopted person’s rights are affected or determined by the laws of this state, shall, from the date of said adoption, be deemed and held to be for every purpose the lawful child of its parent or parents by adoption as fully as though bom to them in lawful wedlock and such adoption shall have the same force and effect as adoption under the provisions of this chapter, including all inheritance rights.”
      In Commerce Trust Co. v. Duden, 523 S.W.2d 97, 101 (Mo.App.1975) the court of appeals interpreted this statute to make “the prevailing adoption statutes of Missouri applicable to [a] case even though [the child] was adopted pursuant to the laws of’ another state.

      . For the purposes of this case we assume that no adoption took place. A companion case to this one, which asks for a determination of heirs, was remanded for hearing in the circuit court of appeals, Estate of Bennett, 555 S.W.2d 692 (Mo.App.1977). The questions presented in it are not before us on this transfer.

      . That Mary Bennett wished the plaintiffs rather than her daughter’s children to take her property is clear if we accept plaintiffs’ statement of the facts as true. Had the children been adopted by Lovejoy, the testatrix’s gift to her daughter would have lapsed, and the plaintiffs would have taken by intestacy. See § 474.010(3) RSMo 1969 which provides as follows:
      “If there is no surviving spouse or kindred of the decedent entitled to inherit, the whole shall go to the kindred of the wife or husband of the decedent, in like course as if such wife or husband had survived the decedent and then died entitled to the property.”
      If the testatrix had wanted third parties, other than the plaintiffs, to take under her will, she would have had to change it to include such third parties whether or not Lovejoy adopted her daughter’s adopted children. Thus, the fact that she felt no need to change her will once she believed that Lovejoy would adopt the children before her death indicated that she wished the plaintiffs, who would have taken if Lovejoy had adopted the children, to take.

      . Included were issues such as the standing of plaintiffs to contest Mary Bennett’s will, the power of this court to declare an equitable adoption of the children, and the power of the court to declare Mary Bennett’s will wholly or partly invalid.

      . The court would have reached a different / conclusion if the innocent third party had given valuable consideration rather than paying off an antecedent debt. Id. The cause before us is like Clifford Banking in that no consideration was given by the children to Mary Bennett in return for the property.

      . The only persons who cannot be cut out of an estate by will are spouses. The surviving spouse can always elect to take against the will. § 474.160, RSMo 1969.

      . The petition alleges that Lovejoy was appointed guardian of the person and estate of the children and given their custody, facts which we must take as true in our determination of the sufficiency of the petition. The petition says nothing about the adoptive father of the children, presumably Lucy Ann Smith’s spouse. The Oregon statutes governing guardianship require notice of a proposed adoption be given, ORS 126.007 (1977) and the parents of a minor are given preference over all others, ORS 126.035 (1977). Subject to this preference the latter statute requires the court to appoint as guardian “the qualified person most suitable who is willing to serve.”
      While we do not know the ages of the children, the statute also requires that if the child is fourteen years or older, the court shall have due regard for the request of the child as to the guardian.
      We do not know from the allegations of the petition why Lovejoy was willing to act as guardian or why the Oregon court appointed him. He may have been acting from selfish motives and trying to get Mrs. Bennett’s residuary estate into the guardianship or he may have loved the children and wanted to and been able to care for them adequately. In any event, we know that the Oregon court, according to the allegations of the petition, considered him suitable presumably even over their father.
      The petition also alleges that Lovejoy obtained Mrs. Bennett’s written agreement to his appointment as guardian. In light of the Oregon statutes mentioned above, it seems doubtful that her agreement was at all necessary.


author: SEILER, Judge.

text:
    Vicki RUSSELL, Respondent, v. CALLAWAY COUNTY, Missouri, Honorable George H. Carrington, Clerk of the County Court of Callaway County, Missouri, and John Ashcroft, Attorney General of Missouri, Appellants, and Jefferson County, Missouri, Intervenor-Appellant.
    No. 61119.
    Supreme Court of Missouri, En Banc.
    Dec. 29, 1978.

      C. E. Hamilton, Jr., Fulton, John D. Ashcroft, Atty. Gen., Larry Marshall, Asst. Atty. Gen., Jefferson City, for defendants-appellants.
    Terence C. Porter, Columbia, for respondent.
    John W. Hammon, Asst. Pros. Atty., Hillsboro, for intervenor-appellant.
   SEILER, Judge.

This case is in this court on direct appeal pursuant to Mo.Const. art. V, § 3 because it involves construction of the constitution, Mo.Const. art. VI, § 8. Specifically, we are asked to determine whether § 48.020.2, RSMo Supp.1977, violates article VI, section 8’s requirement that the number of classes of counties not exceed four. Section 48.-020.2 provides that the people of a county of the second or third class may vote whether or not to move to the next higher classification of county, despite the fact that their assessed valuation would otherwise make them move automatically to the next higher class. Shortly before the date of the proposed election, respondent, a resident, taxpayer and citizen of Callaway County, filed a writ of prohibition in this court asking us to declare section 48.020.2 unconstitutional. Because of inadequate time, we denied the writ without prejudice to respondent’s right to file a declaratory judgment action to test the constitutionality of the statute. Respondent did so on October 13, 1978. On October 30,1978 the circuit court held that respondent had standing to sue and that section 48.020.2 was unconstitutional, but refused injunctive relief and thus permitted the residents of Callaway County to vote whether or not to move from a third to a second class county. On November 7, 1978 the electorate voted to remain a third class county.

On November 22, 1978 appellants filed their notice of appeal. On November 30, 1978, following its request that it be permitted to intervene and be bound by our decision herein, we granted Jefferson County leave to intervene as an intervening appellant. The voters of Jefferson County also voted, on November 7, 1978, pursuant to § 48.020.2, not to change their county’s designated classification. If the statute is unconstitutional, Jefferson County will become a first class rather than a second class county on January 1, 1979.

Because of the importance of determining the validity of the statute before that date, this cause has been expedited on appeal and will be decided on the briefs without oral argument. We must determine (1) whether respondent had standing to sue for declaratory relief and (2) whether § 48.020.2 is constitutional in light of Mo.Const. art. VI, § 8. For the reasons gone into below, we determine that respondent is a proper party, that § 48.020.2 is unconstitutional because it creates more than four classes of counties, and thus that Callaway County will automatically become a second-class county, and Jefferson County a first-class county, on January 1, 1979.

I. Standing

Appellants assert that respondent, despite her status as a resident, citizen and taxpayer of Callaway County, does not have standing to bring this cause of action because she alleges no special injury due to either the statute, § 48.020.2, or to the holding of the election, or that her tax burden will be increased as a result of the expenditure of public funds for the latter, and thus that she has no legally protectable interest at stake, citing Spencer v. Village of DeKalb, 408 S.W.2d 78 (Mo.1966); Moseley v. City of Mountain Grove, 524 S.W.2d 444, 448 (Mo.App.1975); Collins v. Vernon, 512 S.W.2d 470, 473 (Mo.App.1974); Glick v. Allstate Insurance Co., 435 S.W.2d 17, 20 (Mo.App.1968).

Appellants’ reliance on these cases is misplaced. Glick was dismissed because it dealt with a situation in which there was no justiciable controversy and thus no specific relief could be afforded. See Waterman v. City of Independence, 446 S.W.2d 471, 474 (Mo.App.1969).

In Spencer the plaintiffs sought a declaratory judgment that an ordinance authorizing a revenue bond election, issuance and sale to finance construction of a water works system was void, 408 S.W.2d 79. In Moseley, plaintiffs sought an injunction against the sale or negotiation of revenue bonds authorized to be issued by vote of the electorate. 524 S.W.2d 446. In both eases the court found that, because the revenue bonds specifically provided that neither they nor the interest thereon should be paid by taxes in whole or in part, the fact that plaintiff was a taxpayer was not in itself sufficient to show a litigable interest. Spencer, 408 S.W.2d at 80-81; Moseley, 524 S.W.2d at 447-49. Cf. Smith v. Hendricks, 136 S.W.2d 449, 454 (Mo.App.1939). Here there is no dispute that the election caused the expenditure of public funds.

Collins, 512 S.W.2d at 473, does not support appellants’ position. While it does require that a taxpayer qua taxpayer must allege some injury and specify some damage to herself in her posture as a taxpayer in order to gain standing to sue a governmental unit, it also states “[s]uch interests may be in the form of an increased tax burden on a plaintiff to replenish the public funds illegally dissipated,” id. at 473. The court quotes from Castilo v. State Hwy. Commission of Missouri, 312 Mo. 244, 279 S.W. 673 (banc 1925) the principle that:

“ ‘[f]ailure to allege the ultimate fact that plaintiffs’ taxes will be increased when this conclusion necessarily arises from facts sufficiently pleaded is not material.’ ” (emphasis added in Collins, 512 S.W.2d at 474).

In this case, respondent alleged that she was a resident, citizen and taxpayer of Call-away County, Missouri, pleaded the statute, § 48.020, RSMo Supp.1977, and the constitution, Mo.Const. art. VI, § 8, and alleged in paragraph eleven of her amended petition that the statute perverts the scheme of classification of counties and creates a fifth class of county in violation of the state constitution and that “an election under § 48.020.2 would be a nullity and the expenses of said election would be an unlawful expenditure of public funds.”

We think that the necessary inference can be made from these pleadings that the unlawful expenditure would increase respondent’s burden as a taxpayer since the additional expense of the election would necessarily come from public funds supplied by the taxpayer. Collins is thus not apposite.

Additionally, we agree with the trial court that this case is controlled by Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404 (1954). In that case plaintiff sued for a declaratory judgment, after a state senatorial election, as a resident, citizen, taxpayer and qualified voter of the city of St. Louis, alleging that the senatorial redistricting scheme effected by the act of the Board of Election Commissioners pursuant to Mo. Const, art. Ill, § 8 was void because it violated that section in that the districts were not divided by population as evenly as possible. The court concluded that plaintiff had standing to sue. It adopted the conclusion and reasoning of Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 317 (App.1931) that:

“It is the primary rights of citizens that are violated by invalid statutes, which the court, in a proper case, may protect by injunction or other process.” Preisler, 265 S.W.2d at 409.

Stiglitz also stated:

“It is settled that the courts, in a proper case, may interpose for the protection of political rights, and the right to be equally represented in the legislative bodies of the state is not only a political but a constitutional right. If an act of the Legislature infringes the constitutional rights of a citizen, taxpayer, and voter, he may invoke the processes of the courts to prevent the performance of a duty attempted to be imposed by such void act.
“The citizen possesses political as well as pecuniary and personal rights which may be the subject of an action to prevent the operation of unconstitutional legislation.” Id.

In this case, respondent sued as a resident, citizen and taxpayer of Callaway County, and alleged that the classification of that county was violative of Mo.Const. art. VI, § 8. If her contention is correct, her rights as a citizen residing in Callaway County will be violated beginning January 1, 1979 because she will be governed by an improper form of county government. As such, she may sue to vindicate her state constitutional right to live in a county with the powers and responsibilities of a county of the second class.

II. Classification of Counties

We now reach the substantive question whether § 48.020.2 is unconstitutional because it provides for the creation of more than four classes of counties in violation of Mo.Const. art. VI, § 8. Section 8 provides:

“Provision shall be made by general laws for the organization and classification of counties except as provided in this constitution. The number of classes shall not exceed four, and the organization and powers of each class shall be defined by general laws so that all counties within the same class shall possess the same powers and be subject to the same restrictions. A law applicable to any county shall apply to all counties in the class to which such county belongs.”

Section 48.020.2, RSMo 1969, had provided:

“Classification of counties into four classes for the purpose of organization and powers
“All counties of this state are hereby classified, for the purpose of establishing organization and powers in accordance with the provisions of section 8, article VI, Constitution of Missouri, into four classes as follows:
Class 1. All counties now having or which may hereafter have an assessed valuation of three hundred million dollars and over shall be in the first class.
Class 2. All counties now having or which may hereafter have an assessed valuation of seventy million dollars and less than three hundred million dollars shall be in the second class.
Class 3. All counties now having or which may hereafter have an assessed valuation of ten million dollars and less than seventy million dollars shall be in the third class.
Class 4. All counties now having or which may hereafter have an assessed valuation of less than ten million dollars shall be in the fourth class.”

In 1977, § 48.020 was amended, and among other changes the following provision was added:

“2. Whenever a county of the second class achieves an assessed valuation of three hundred million dollars or a county of the third class achieves an assessed valuation of seventy million dollars, it shall move into the next higher class after maintaining that valuation for the time period specified in section 48.030, unless the governing body of the county submits the question of remaining in the county’s present class to a vote of the qualified electors of the county at the general election next following the certification by the state equalizing agency for the required number of successive years that the county possesses a valuation qualifying it to move to the higher class. The ballot of submission shall contain, but not be limited to, the following language:
D For the County remaining in the.Class.
□ Against the County remaining in the.Class.
If a majority of the votes cast on the proposal by the qualified voters voting thereon are against the county remaining in its present class, then at the beginning of the county fiscal year following the election, the county shall move into the higher class. If a majority of the votes cast on the proposal by the qualified voters voting thereon are in favor of remaining in the present class, the county shall remain in the class it is in at the time of the election and shall not move into the higher class unless and until such move is approved by a majority of the voters of the county or until the county achieves the assessed valuation necessary for an automatic move into that class as provided in subsection 1. If the voters vote for the county to remain in its present class, no further election shall be held on the proposal until the next succeeding state general or primary election.”

Respondent contends that § 48.020.2, by providing that a county of the third class can remain so despite the fact that it has maintained for five years the assessed valuation necessary to become a county of the second class, creates a fifth class of county which has some of the attributes of both third and second class counties, in violation of the constitution. It cites Chaffin v. County of Christian, 359 S.W.2d 730 (Mo. banc 1962) in support.

In Chaffin this court held that a statutory provision which required a vote of the electorate before a county could move from the fourth to the third class was unconstitutional because it would create a fifth class of county. It stated: “[t]he constitutional provision limited the classes of counties to four, and the general assembly provided that the common attribute, property, or character, should be the assessed valuation of the counties subject to classification.” Id. at 734. The Chaffin court concluded:

“The enactment of subdivision 2 of § 48.030 added a variable that disrupted the common denominator of the classes. It added an element foreign to the concept of assessed valuation in providing that no county of the fourth class should become a county of the third class until the move was approved by the voters of the county. The defendants urge that this provision ‘merely establishes one additional requirement for the passage of a fourth class county to a third class county’. What we are concerned with is the character and legal effect of this additional requirement. Under it, the progression of a fourth-class county no longer depends upon the general law but on a favorable vote of the county electors. An unfavorable vote puts a fourth-class county in a status or category which is no longer strictly fourth class or third class as prescribed in § 48.020. Under the new statutory provision, the common attribute of assessed valuation is no longer controlling. In this instance, Christian County has the assessed valuation of a third-class county but retains the designation and is permitted and required to exercise the powers and be subject to the restrictions of a fourth-class county. This perverts the entire scheme of classification and in effect creates an additional class of counties in violation of § 8, Art. VI, 1945 Constitution.” 359 S.W.2d at 735.

Appellants seek to distinguish Chaffin on the basis that it dealt with § 48.030, RSMo 1959, entitled “Method of determining classes”, and providing in part:

“Method of determining classes. 1. For the purpose of determining the initial class of the various counties, the assessed valuations of the respective counties as set forth on pages 333 to 400 of the ‘Journal of the Board of Equalization of the State of Missouri for the Year Ending December 31, 1944’ shall be used. Hereafter no county shall be deemed as moving from a lower class to a higher class or from a higher class to a lower class until the assessed valuation of the county is such as to place it in the other class for five successive years .
“2. In addition to the required increase in valuation for five successive years, and the certification by the state equalizing agency, no county of the fourth class shall become a county of the third class until the question is submitted to a vote of the people at a general election, and a majority of the electors voting on the question shall vote in favor thereof. The change from one classification to another shall become effective at the beginning of the county fiscal year following the general election at which the approval of the people is obtained.” (emphasis added).

Appellants assert that the use of the word “initial” indicates that assessed valuation was only to be the critical distinguishing factor between classes initially, that § 48.030 dealt with only the effective date of the classification and not the classification itself, and therefore that once the initial classification was complete, the powers and restrictions conferred on the classes, not their assessed valuation, was to be the mechanism used to distinguish between them. This is logical, it is asserted, because the critical distinction between classes is their powers and restrictions, not the assessed valuation of the counties classified within them, since that valuation can vary greatly within a given class. Thus, the fact that the present § 48.020.2 makes the results of an election rather than assessed valuation determinative is irrelevant, because Chaffin dealt only with an attempt to make something other than assessed valúation determinative of a county’s initial classification.

This argument is not valid, as shown by the very words of § 48.030 quoted above. It provided that valuation should determine the class, and “hereafter” no change in classification could be made until the appropriate level of assessed valuation was reached. A county could not move from one class to another unless it was initially placed in a class and then a change in valuation caused it to move to a different class. Thus, valuation is made the key factor for change in class as well as for initial classification. Appellants’ argument is simply incorrect. Once initial classification was made, assessed valuation was to be determinative of any change in classification. Appellants confuse cause and effect. The assessed valuation determines the county’s class, and the county’s class its powers and restrictions. To say that the powers and restrictions conferred determine the class is to put the cart before the horse.

Appellants suggest that since the legislature may change the powers and restrictions accorded to each class or the assessed valuation used to define each, and yet not create an additional class of county, it may provide for an additional factor, approval by the electorate, before a classification is changed. However, appellants admit in their brief that § 48.020.2 provides for “the self-determination of the electorate to remain in a particular class”, and that under that section “[t]he electorate simply decides they now prefer the powers and restrictions of counties of the third class as opposed to counties of the second class.” Yet, as noted, supra, this is exactly what was prohibited in Chaffin, because then “the progression of a fourth-class [here a third class] county no longer depends upon the general law but on a favorable vote of the county electors . . . the common attribute of assessed valuation is no longer controlling.” Chaffin, 359 S.W.2d at 735. The fact that in Chaffin the vote was mandatory and that under § 48.020.2 it is discretionary is irrelevant, for in both cases the electorate may determine whether a classification is changed.

We thus conclude that § 48.020.2 is unconstitutional because it provides for the creation of a fifth and sixth classification of counties, that is, those counties, like Calla-way, which despite an assessed valuation of between seventy and one hundred twenty-five million dollars remain in the third rather than move to the second class because of a vote of the electorate, and these counties, like Jefferson, which despite an assessed valuation of between three hundred and four hundred million remain in the second rather than move to the first class because of a vote of the electorate, in violation of Mo.Const. art. VI, § 8.

The elections held pursuant to § 48.020.2, on November 7, 1978, are nullities and should not have been held. Callaway County will become a second class county on January 1, 1979, and Jefferson County will become a first class county on January 1, 1979.

The judgment of the circuit court declaring the statute unconstitutional is affirmed.

All of the Judges concur.

      . According to appellants’ brief, Lafayette, Saline and Johnson counties also had elections on November 7, 1978 pursuant to the provisions of § 48.020.2, at which they voted to remain counties of the third class rather than become counties of the second class, despite having attained the assessed valuation necessary to become counties of the second class.

      . There are important differences in the services and protections available to the taxpayer and to the county as a whole between first class counties not having a charter form of government and second class counties, and between second and third class counties. For example, to name only a few, there are differences in budgeting, accounting, and purchasing practices and requirements, §§ 50.065, 50.095, RSMo Supp.1977; §§ 50.753-.760, 50.815, RSMo Supp.1975; and in the handling of county funds, §§ 52.360-.420 RSMo Supp.1975. There is a county auditor, § 55.040 RSMo Supp. 1975; and a juvenile detention center, § 211.-331, RSMo 1969; and there are differences in the duties, size and responsibilities of the offices of sheriff, §§ 57.113-.115, 57.201, RSMo Supp.1975; prosecutor, §§ 56.010-.240, RSMo Supp.1975; assessor, § 53.050, RSMo 1969; § 53.073, RSMo Supp.1975; and treasurer, § 54.145, RSMo Supp.1975.