Stocke v. Edwards

• Decision Date: 27 October 1922
• Citation: 244 S.W. 802,295 Mo. 402
• Parties: JACOB STOCKE, Appellant, v. JOHN B. EDWARDS et al., Constituting Board of Election Commissioners of City of St. Louis
• Court: Missouri Supreme Court

244 S.W. 802

295 Mo. 402

JACOB STOCKE, Appellant, v. JOHN B. EDWARDS et al., Constituting Board of Election Commissioners of City of St. Louis

Supreme Court of Missouri

October 27, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Robert W. Hall Judge.

Reversed.

E. E Schowengerdt, A. W. Wenger and Buder & Buder for appellant.

(1) Plaintiff is a proper party to bring this suit. A citizen and taxpayer of Missouri can bring an action to enjoin administrative officials from doing an unconstitutional or illegal act. Newmeyer v. Railroad, 52 Mo. 81; State v. Curators, 57 Mo. 178; State ex rel. v Woodside, 254 Mo. 580; Carson v. Sullivan, 223 S.W. 571; Harris v. Langford, 277 Mo. 533; 1 High on Injunctions (4 Ed.) secs. 273, 274. (2) The act of the Legislature under which the defendants propose to act was not passed in accordance with the constitutional mandates. Sec. 26, Art. IV, Mo. Constitution. (3) The title of the act fails to truly express its contents and fails to show that its purpose was to amend, alter and repeal certain articles and sections of the Revised Statutes and is therefore violative of the Constitution. Sec. 28, Art. IV, Mo. Constitution; State v. McEniry, 269 Mo. 228; State v. Sloan, 258 Mo. 313; State v. Coffee Co., 171 Mo. 634; State v. Rawlings, 232 Mo. 557; State v. Crites, 277 Mo. 194; St. Louis v. Weitzel, 130 Mo. 616; State ex rel. v. Hackman, 237 S.W. 743. (4) The act as passed was not within the limits of the special message of the Governor, but greatly in excess thereof and therefore void. Sec. 55, Art. IV, Mo. Constitution; State ex rel. v. Edwards, 241 S.W. 945; Wells v. Railway, 110 Mo. 286; State v. Fulks, 207 Mo. 26; State v. Wortman, 213 Mo. 131. (5) The power of the Legislature when convened in special session is strictly limited, and for acts passed at such a session to be valid the Legislature must have strictly complied with all constitutional requirements. State ex rel. v. Robinson, 270 Mo. 212; State ex rel. v. Cave, 272 Mo. 653.

George F. Haid and Oliver Senti for respondents.

(1) Every intendment is in favor of the due enactment of statutes, and in absence of a contrary affirmative showing upon the journal it will be presumed that statutes were constitutionally enacted. Common Council of Detroit v. Rentz, 91 Mich. 78, 16 L. R. A. 63; State ex rel. v. Mead, 71 Mo. 272; State ex rel. v. Field, 119 Mo. 610; Gas v. Evans, 244 Mo. 343. (2) The act in question, so far as it provides for the election of assessors, is valid. 25 R. C. L. sec. 87; Bosworth v. State University, L. R. A. 1917-B, 808, 811; State ex rel. Bixby v. St. Louis, 241 Mo. 231, 247.

J. M. Lashly amicus curiae.

(1) The legislation drawn in question is within the limits of the special messages of the Governor. (a) Under a message directing the special session to act upon "the subject of making the assessors in cities of 500,000 or over elective state officials," the Legislature could validly enact a law providing for the election of an assessor in such cities. State v. Rawlings, 232 Mo. 544; Sec. 55, Art. IV, Mo. Constitution; State ex rel. Rice v. Edwards, 241 S.W. 945. (b) The power was also inherent in the Legislature to pass any reasonably incidental laws which are necessary to carry out and accomplish the objects set forth in the special message. Coffey v. City of Carthage, 200 Mo. 616; O'Conner v. Transit Co., 198 Mo. 622. (2) Even although it should be held that the creation of a board of equalization was beyond the objects limited in the special message of the Governor, this fact will not affect the validity of the other sections of the act, which are easily separable. Nalley v. Home Ins. Co., 250 Mo. 452; State ex rel. v. Guinotte, 275 Mo. 318; Simpson v. Iron Works, 249 Mo. 378; State v. Rawlings, 232 Mo. 544; State v. Hackman, 237 S.W. 744; State v. Layton, 160 Mo. 474; State v. Tea & Coffee Co., 171 Mo. 634. (3) The sections under fire are sufficiently responsive to the title to the act. O'Conner v. Transit Co., 198 Mo. 622; Coffee v. Carthage, 200 Mo. 616; St. Louis v. Weitzel, 130 Mo. 600; State v. Price, 229 Mo. 677; State v. Rawlings, 232 Mo. 544; State v. Miller, 100 Mo. 444. (4) It is not essential that the title show that the act repeals or amends some other law. Whether the law as enacted does in fact repeal or amend another law is a question for the courts, not the Legislature, to determine. State ex rel. McClintock v. Guinotte, 275 Mo. 317. (5) It is apparent from the face of the petition that there was no defect in the procedure of the General Assembly, and that the bill was validly and legally passed. (a) The petition fails to plead the ultimate fact that the bill was put upon its first reading before receipt of the Governor's message, but merely makes certain charges affecting the order in the journal in which the entries appear. (b) The order of appearance in the journal is in itself no evidence of irregularity and the record showing both the receipt of the special message and the first reading of the bill upon the same day, the law which will not deal with parts of a day (de minimis non curat lex) will presume regularity of procedure. Farmers Bank v. Bayless, 41 Mo. 275; Thomas Bros. v. Railroad Co., 173 S.W. 96. (c) The journal recitation that the bill was read the second and third times presupposes as a matter of law that there had been a valid first reading. English v. Oliver, 28 Ark. 320; Ins. Co. v. Loan Co., 20 Colo. 5; Wegand v. Strover, 35 Kan. 553; Board of Curators v. Ins. Co., 128 F. 824; State v. McConnell, 3 Lea (Tenn.) 341. (d) Nor would the fact, if it be a fact, that the Assembly heard the first reading of the bill before the arrival of the special message violate the mandate of the Constitution, Art. IV, sec. 55, which merely limits the power of the Assembly to act upon matters.

ELDER, J. Woodson, Graves, Higbee and Walker, JJ., concur; James T. Blair, C. J., and David E. Blair, J., concur in the result.

OPINION

In Banc.

ELDER J.

This is an action by plaintiff as a resident and taxpayer of the city of St. Louis, seeking to enjoin defendants, who constitute the Board of Election Commissioners of said city, from submitting to the voters and printing upon the official ballot at the coming general election to be held November 7, 1922, the names of the Republican, Democratic and Socialist Labor candidates for the office of Assessor of the City of St. Louis. The suit involves the constitutionality of an act passed at an extra session of the Fifty-first General Assembly, Laws 1921, Extra Session, page 107.

The facts in the case and the grounds upon which plaintiff assails the law in question are detailed in the petition, which is as follows:

"Comes now the plaintiff and alleges that he is a citizen of the United States and a resident of the City of St. Louis, Missouri; that he is the owner of real estate and personal property situated and located therein and a taxpayer on the same; that he is bringing this suit on behalf of himself and all other citizens and taxpayers who are similarly situated and interested with him and wish to join herein.

"That defendant John B. Edwards is the president of the Board of Election Commissioners of the City of St. Louis, Missouri; that defendant Edward S. Lewis is its secretary, and defendants John H. Holliday and James Y. Player are the remaining members of said board. That said board has charge of and supervision over all elections held in said city.

"And for his cause of action plaintiff states that the city of St. Louis is a city located within the boundaries of the State of Missouri, and according to the last United States Census of the year 1920 it had, and still has, a population in excess of five hundred thousand inhabitants. That there will be held in said city on Tuesday, November 7, 1922, a general state election, and at said election, among other offices to be voted for, the defendants propose to submit to the voters of said city the office of 'Assessor of the City of St. Louis.' That the defendants are about to, and unless restrained by this honorable court will, have printed on the regular official blanket ballot to be submitted to the voters on said 7th day of November, 1922, the names of William Buder as the Republican candidate, George Hruska the Democratic candidate, and George Gerdes as the Socialist Labor candidate. That the office of Assessor for the City of St. Louis is an appointive one under the charter of said city, and has been duly filled by appointment of the mayor, and one William Buder is now the duly appointed, qualified and acting assessor for said city, having been appointed for a period expiring April, 1925. That there is now no existing vacancy in said office.

"That the defendants propose to, and will, submit said office of the Assessor of the City of St. Louis to the electors under and by virtue of the provisions of an act passed by the 51st General Assembly of the State of Missouri, while in extra session, approved July 21, 1921, and entitled, 'An Act providing for the election of an Assessor in cities now having, or which may hereafter have, a population of five hundred thousand inhabitants or more, defining his duties and providing for a board of equalization in said cities,' and found in the Laws of Missouri of 1921, Extra Session, page 107.

"That on the 31st day of May, 1921, the Governor of the State of Missouri issued his proclamation calling in extra session the Fifty-first General Assembly of the State of Missouri. Said proclamation of the Governor is in words and figures as follows:

"'Whereas, The people of the State of Missouri did, on the 2nd day of November, 1920, by their vote amend the Constitution of the State of Missouri and authorize the General Assembly of the State of

...