State v. Smiley

Decision Date26 May 1924
Docket NumberNo. 25082.,25082.
Citation304 Mo. 549,263 S.W. 825
PartiesSTATE ex rel. ROSENTHAL v. SMILEY et al., Judges.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Certiorari by the State of Missouri, at the think the relation of Edwin Rosenthal, against Richard S. Smiley and others, Judges of the County Court of St. Louis. Judgment for plaintiff, and defendants appeal. Reversed.

C. C. Wolff and A. E. L. Gardner, all of Clayton, for appellants.

Joseph C. McAtee, of Clayton, for respondent.

RAGLAND, J.

This is an appeal from a judgment of the circuit court of St. Louis county quashing on certiorari a record and order of the county court of that county.

On December 1, 1922 and during its November term, 1922, the county court of St. Louis county made and caused to be entered on its records the following order:

"In the Matter of the Appointment of James C. Kiskaddon as County Counselor of St. Louis County, Mo.

"Whereas, the county of St. Louis in the state of Missouri now contains more than 100,-000 inhabitants, according to the last decennial census of the United States, and is therefore entitled to a county counselor, under and by virtue of article 4 of chapter 6 of the Revised Statutes of Missouri 1919. The roll being called, Fred C. Stille, judge of the First district, votes Yes; J. Wm. Shields, judge of the Second district, votes Yes, and John Wiethaupt, presiding judge, votes No. It is therefore ordered by the county court of said county that James C. Kiskaddon, who is learned in the law and over 25 years of age, be and he is hereby appointed county counselor for the term of 2 years, said term to begin on the 1st day of December, 1922, at a salary of $3,000 per year, to be paid quarterly upon warrants to be issued in favor of said Kiskaddon to the county treasurer for that purpose, and that a commission as county counselor be forthwith made, issued, and delivered to said Kiskaddon."

On the same day a commission was issued pursuant to the order and delivered to Kiskaddon, who thereupon duly qualified as county counselor by taking the oath of office. On December 13th following Kiskaddon tendered his resignation in writing, which was duly accepted by the court. Afterward, but on the same clay, the county court, without referring in any way to its previous orders appointing Kiskaddon county counselor and subsequently accepting his resignation, made and caused to be entered of record the following order:

"In the Matter of the Appointment of Edwin Rosenthal, as County Counselor of St. Louis County, Mo.

"Whereas, the county of St. Louis in the state of Missouri now contains more than 100,000 inhabitants according to the last decennial census of the United States, and is therefore entitled to a county counselor, under and by virtue of article 4 of chapter 6 of the Revised Statutes of Missouri 1919. The roll being called, Fred C. Stille judge of the First district votes, Yes; Wm. Shields, judge of the Second district, votes Yes, and John Wiethaupt, presiding judge, votes No. It is therefore ordered by the county court of said county that Edwin Rosenthal, who is learned in law, and over 25 years of age, be and he is hereby appointed county counselor for the term of 2 years, said term to begin on the 15th day of December, 1922, at a salary of $3,000 per year, to be paid quarterly upon warrants to be issued in favor of said Rosenthal to the county treasurer for that purpose, and that a commission as county counselor be forthwith made, issued, and delivered to said Rosenthal."

On the day that this order was made relator, Rosenthal, was commissioned and took the oath of office. All of the judges composing the county court when the foregoing orders were made went out of office December 31, 1922, the date on which under the law their terms expired. On the coming in of the new county court, and on January 2, 1923, the court made and had entered of record the following order:

"Now on this 2d day of January, 1923, being one of the days of the November term, 1922, of the county court of St. Louis county, it is ordered by the court of its own motion that the order made appointing Edwin Rosenthal, comity counselor, on the 13th day of December, 1922, being one of the days of said November term, 1922, of said county, be and the same is now hereby set aside, annulled, and for naught held, said order being in words and figures as follows, to wit:

"In the Matter of the Appointment of Edwin Rosenthal, as County Counselor of St. Louis County, Mo.

"`Whereas, the county of St. Louis in the state of Missouri now contains more than 100,-000 inhabitants, according to the last decennial census of the United States, and is therefore entitled to a county counselor, under and by virtue of article 4 of chapter 6 of the Revised Statutes of Missouri 1919. The roll being called, Fred C. Stille, judge of the First district, votes Yes; J. Wm. Shields, judge of the Second district, votes Yes, and John Wiethaupt, presiding judge, votes No. It is therefore ordered by the county court of said county that Edwin Rosenthal, who is learned in law, and over 25 years of age, be and he is hereby appointed county counselor for the term of 2 years, said term to begin on the 15th day of December, 1922, at a salary of $3,000 per year, to be paid quarterly upon...

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17 cases
  • State ex rel. Field v. Smith
    • United States
    • Missouri Supreme Court
    • March 15, 1932
    ... ...         By virtue of Section 7519 the patrolmen constituting a traffic squad are state officers. The positions filled by them are public offices. The attempted delegation to the board of police of the power to create such offices is clearly void. [State ex rel. v. Smiley, 304 Mo. 549, 557, 263 S.W. 825; State ex rel. v. Mason, 153 Mo. 23, 48, 54 S.W. 524.] In the Smiley case just cited it was held that the Legislature may create a public office (as that of county counselor), potentially, to come into actuality upon the happening of a future contingency, such as the ... ...
  • State on Inf. of Wallach v. Loesch
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    • March 25, 1943
    ... ... 467; ... State ex rel. Buchanan County v. Imel, 146 S.W. 783, ... 242 Mo. 293; Hasting v. Jasper County, 282 S.W. 700, ... 314 Mo. 144; Sec. 14, Art. IX, Mo. Const.; State ex rel ... Kane v. Johnson, 123 Mo. 43; People v. Perry, ... 79 Cal. 105; State ex rel. Rosenthal v. Smiley, 304 ... Mo. 549, 263 S.W. 825; State ex inf. Crain v. Moore, ... 339 Mo. 492, 99 S.W.2d 17. (4) The Planning and Zoning Act of ... 1941 violates Section 1 of Article IV of the Constitution of ... Missouri in that it delegates powers belonging to the General ... Assembly to the county ... ...
  • State on Inf. of McKittrick v. Wiley
    • United States
    • Missouri Supreme Court
    • February 26, 1942
    ... ... M. 493; State ex rel. v. Howse, 134 Tenn. 67; 22 R ... C. L. 570; State ex rel. Atty. Gen. v. Wymore, 132 ... S.W.2d 979; State ex rel. Atty. Gen. v. Wymore, 119 ... S.W.2d 941; Secs. 12941, 12943, 12989, R. S. 1939; ... Stanley v. Hopkins County, 190 Ky. 495; State v ... Smiley, 263 S.W. 825. (8) All statutes as to ... qualification should be liberally constructed to permit ... majority of the people to exercise their right of choice ... State ex inf. Noblet, Pros. Atty., ex rel. McDonald v ... Moore, 152 S.W.2d 86; State ex rel. Pros. Atty. v ... Heath, 132 ... ...
  • State ex inf. Crain ex rel. Peebles v. Moore
    • United States
    • Missouri Supreme Court
    • October 31, 1936
    ... ... unlimited, and no proper legislative boundaries to their ... action had been fixed by the ordinance. This case does not ... help appellant ...          But ... there is another decision, not cited by appellant, State ... ex rel. Rosenthal v. Smiley, 304 Mo. 549, 263 S.W. 825, ... which we ought not to pass unnoticed. In that case Section ... 783, Revised Statutes 1919 (now Sec. 11364, R. S. 1929, Mo ... Stat. Ann., p. 618) was involved, the statute providing that ... the county courts of all counties in this State containing ... one ... ...
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