State at Relation of Smith v. Bowman

• Decision Date: 05 November 1914
• Citation: 170 S.W. 700,184 Mo.App. 549
• Parties: STATE OF MISSOURI, at the relation of JAMES E. SMITH, Appellants, v. THOMAS K. BOWMAN, Mayor, Respondent
• Court: Missouri Court of Appeals

170 S.W. 700

184 Mo.App. 549

STATE OF MISSOURI, at the relation of JAMES E. SMITH, Appellants, v. THOMAS K. BOWMAN, Mayor, Respondent

Court of Appeals of Missouri, Springfield

November 5, 1914

Appeal from Greene County Circuit Court.--Hon. B. G. Thurman Special Judge.

AFFIRMED.

Judgment affirmed.

Neville & Gorman and Barbour & McDavid for appellant.

(1) The question of holding incompatible offices cannot arise in this case, for if holding the office of city clerk is incompatible with that of councilman, by accepting and entering upon the duties of city clerk the relator thereby forfeits the office of councilman and it at once becomes vacant by operation of law, and relator could not hold both even if he wanted to. State ex rel. v. Bus, 135 Mo. 325; State ex rel v. Draper, 45 Mo. 355; State ex rel. v. Lusk, 48 Mo. 242; People v. Carrigue, 2 Hill 93 (15 N. Y Com. Law 296). The city council had a perfect right to elect the relator, one of its own members, city clerk. The duties of the city clerk are all purely ministerial. His term of office and his annual salary are both definitely fixed, and, under the charter and our Constitution, his salary cannot be changed during the term for which he has been elected. There is no law in this State against such selection being made by the council. State v. Fowler, 66 Conn. 298 (32 A. 162); State ex rel. v. Meyer, 60 Ind. 288; State v. Clendenin, 24 Ark. 78; State v. Board of Education, 23 A. 670 (N.J.); Gaw et al. v. Ashley, 80 N.E. 790 (Mass.) and cases under 3. (3) The public policy of the State of Missouri must be determined by its Constitution, laws and judicial decisions; not by the varying opinions of laymen, lawyers, or judges as to the demands of the interests of the public. Insurance Co. v. Railroad, 70 F. 201; Insurance Co. v. Railroad, 175 U.S. 91; U. S. v. Freight Assn., 58 F. 58; Railroad v. Blunt, 155 F. 497; Swann v. Swann, 21 F. 300; Daniels v. Benedict, 97 F. 367; Smith v. Du Bois, 6 Am. St. 260; State ex rel. v. Meyer, 60 Ind. 288; People v. Hawkins, 157 N.Y. 1; Longmuir v. Landes, 113 Ill.App. 138; Raisor v. Railroad, 117 Ill.App. 497; State v. Coyle, 122 P. 254.

T. M. Seawell, E. P. Mann and J. T. White for respondent.

An officer cannot use his official appointing power to place himself in office and therefore where certain officers are vested with the power to fill a position of trust and remuneration, they cannot fill it with one of their own number. It is contrary to the policy of the law, and that is true even where there is no statutory inhibition. This is a rule of common law. 29 Cyc. Law & Pro., sec. 1381; 23 Am. & Eng. Ency. of Law, 338; Meglemeyer v. Weissinger, 131 S.W. 40, 31 L. N. S. 575, notes; Smith v. City of Albany, 61 N.Y. 444; Gaw v. Ashley, 80 N.E. 790; People v. Thomas, 33 Barb. 287; State v. Hoyt, 2 Ore. 246; State ex rel. v. Taylor, 12 Ohio St. 135; Woods v. Potter, 95 P. 1125; Flowers v. Logan Co., 137 Am. St. 353; Kinyon v. Duchene, 21 Mich. 497; Commonwealth v. Douglas, 1 Binney 77; Sublett v. Bedwell, 12 Am. St. 338; Ellis v. Lennon, 54 N.J.L. 468. The general rule applies to officers with power to appoint; they cannot appoint themselves. 23 Am. & Eng. Ency. of Law, p. 338; Meglemeyer v. Weissinger, 131 S.W. 40.

STURGIS J. Robertson, P. J., concurs in the result and files a separate opinion. Farrington, J., concurs.

OPINION

STURGIS, J.

This is a proceeding to determine relator's right to hold the office of city clerk of Springfield, Missouri. The defendant, mayor of said city, declined to approve his bond or issue him a certificate of election and this proceeding asks the court to compel the defendant to do so. The facts are not disputed. Springfield is a city of the third class. It is agreed that appellant possesses the qualifications necessary for a city clerk, barring the fact of his being a member of the city council of said city at the time of his alleged election or appointment, and that he tendered a good and sufficient bond. The defendant mayor bases his refusal on the ground that relator has not been legally elected or appointed and could not be lawfully elected or appointed to the office for the reason just stated.

The common council of said city consists of sixteen members, two from each of the eight wards. The relator is one of such number, duly elected and actively representing one of the wards of such city. When the time came to elect or appoint a clerk for said city in June, 1914, the city council, relator sitting as a member, proceeded to choose a clerk and on a roll call the relator received nine votes, counting his own, and seven votes were cast for another candidate. The mayor rules that relator's vote for himself could not be counted, thus giving relator eight votes, and, as there is a city ordinance requiring a majority of all the members of the city council to select a clerk, declared that no one was selected.

The question of relator's right to vote for himself, and, should that be ruled against him, the validity of the city ordinance requiring an affirmative vote of a majority of all the members elected to the council to choose a clerk, are both presented for our consideration by elaborate and able briefs. The proper method of selecting a city clerk under the present charter of cities of the third class as enacted in 1893, Acts of 1893, p. 66, now embodied in the Revised Statutes, whether by appointment by the mayor with the approval of the city council under a general ordinance of the city relating to appointive offices, or by an election by the city council as was attempted to be done in this case, is also called in question. It is not wise to decide too many grave questions in one case unless necessary to a decision thereof and the view we take of another question duly presented makes it unnecessary to pass on the matters just suggested. We might say, however, that there can be no question but that the office of city clerk is an appointive one rather than an elective office. An elective office is one where the officer is chosen by vote of the qualified voters of the city and the office is an appointive one whether the appointment be made by the mayor or by the city council.

The defendant contends, and in this we agree as did the learned trial judge, that, granting that the power and duty to select a city clerk is vested in the city council, then such council could not select and appoint one of its own number to that office. This is true because such exercise of the appointive power is against public policy.

The term public policy is one of broad significance and cannot be comprehensively defined in specific terms. One of the best definitions perhaps is that of Justice STORY, which applied the term to that which "conflicts with the morals of the time, and contravenes any established interest of society." [1 Story on Const., 675.] This definition is quoted by Judge SHERWOOD in Kitchen v. Greenabaum et al., 61 Mo. 110, 115, in which the court was considering the enforcement of a right to a prize drawn on a lottery ticket. An excellent definition is also found in Black's Law Dictionary, where it is said: "The term 'policy' as applied to a statute, regulation, rule of law, course of action, or the like, refers to its probable effect, tendency, or object, considered with reference to the social or political well-being of the State. Thus, certain classes of acts are said to be 'against public policy,' when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the State, apart from illegality or immorality." If one will read the various definitions of this term collected in 6 Words & Phrases, 5813, he will get a good working definition in his mind, though he may not be able to formulate the same in words.

The relator quotes from Judge SANBORN in Ins. Co. v. Chicago, M. & St. P. Ry. Co., 70 F. 201, that: "The public policy of a State or Nation must be determined by its constitution, laws, and judicial decisions; not by the varying opinions of laymen, lawyers or judges, as to the demands of the interests of the public." To this we readily agree, but we cannot assent to relator's construction of this language to the effect that, as there is no positive statute or constitutional provision and no judicial decision of any appellate court of this State explicitly prohibiting a city council from appointing one of its own members city clerk, then such act is not against the public policy of this State. This narrow construction would defeat and destroy the whole meaning and working force of the term public policy. If there be a positive statute or constitutional provision prohibiting such action, then there is no function for public policy to perform; and, as to judicial decisions, there must be a first one in each jurisdiction as applied to any concrete case. What Judge SANBORN evidently means is that in arriving at what is or is not against public policy, the underlying principles of the constitution, laws and judicial decisions, as showing the settled will of the people as an organized body, are to be looked to rather than the varying individual opinions of laymen, lawyers or judges.

It is said, in Billingsley v. Clelland, 41 W.Va. 234, 244 23 S.E. 812, in speaking of the term "public policy": "This term is equivalent to 'the policy of the law.' It is applicable to the spirit as well as the letter." It is plain from a reading of the many concrete cases that transactions are held to be against public policy because against the policy of the law, that is, against the manifest object and trend of the whole law on that subject rather than against a specific enactment prohibiting it. Many cases will be found denouncing acts or...