66 S.W. 1062 (Mo. 1902), State ex Informatione Crow v. Lund
| Citation | 66 S.W. 1062, 167 Mo. 228 |
| Opinion Judge | BURGESS, C. J. |
| Party Name | THE STATE ex informatione CROW, Attorney-General, Appellant, v. LUND |
| Attorney | Edward C. Crow, Attorney-General, for appellant; F. M. Black and Fyke, Yates, Fyke and Snyder of counsel. Sanford B. Ladd for respondent. |
| Judge Panel | BURGESS, C. J. Robinson, J., dissents and expresses his views in a separate opinion. ROBINSON ROBINSON, J. (dissenting). |
| Case Date | February 19, 1902 |
| Court | Missouri Supreme Court |
Page 1062
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed and judgment here.
(1) The primary question in a quo warranto proceeding is whether the respondent is entitled to hold the office. This right can only be determined by the court by the respondent pleading the facts in the case. Therefore, facts, and not evidence or conclusions of law, must be distinctly stated. 79 Mo. 272. It is no answer to an information in a quo warranto proceeding to state that no one else or some one else is not entitled to the office. The respondent must show that he is rightfully in office. 15 Ill. 213. And, therefore, it has been held in a quo warranto proceeding, the mere allegation in the plea that the respondent was elected amounts to nothing, and a denial of that allegation makes no issue. 56 Mo. 122; 88 Mo. 384; 136 Mo. 376; 129 Mo. 431; 30 Fla. 588; 1 Denio 388; 12 Fla. 265. (2) Do the charter officers of Kansas City hold over until their successors are appointed and qualified? Leaving the constitutional declarations recited in respondent's answer out of consideration for the moment, it may be confidently asserted on the weight of the best authority, that, in the absence of any affirmative provision giving them such right, their official terms being fixed by the charter (sec. 14, p. 52) for the definite term of two years, they cease to be officers of the city at the expiration of such time. This is the rule laid down by the United States Supreme Court in Badger v. United States, 93 U.S. 599. In the course of its opinion the court says: "By the common law, as well as by the statutes of the United States, when the term of office to which one is elected or appointed expires, his power to perform its duties ceases." This doctrine is specifically affirmed by our Supreme Court in State ex rel. v. Perkins, 139 Mo. 106, and is strictly in line with all Missouri cases on the subject. That this is the rule recognized by the best courts, and the great weight of authority, will appear from the following decisions, and cases therein cited: People v. Tillman, 8 Abb. Prac. 359; 30 Barb. 195; State v. McLure, 84 N.C. 153; State ex rel. v. Sheldon, 67 N.W. 613; Richmond Mayoralty Cases, 19 Gratt. 673; Christian v. Gibbs, 53 Miss. 314. (3) That there is in the charter of Kansas City, properly construed, "a contrary provision" within the meaning of this constitutional provision, whereby the intent of the charter framers to provide against appointive officers holding over is made manifest, is very clear. In this State a reference to statutes and cases involving tenure of office is convincing of the fact that where a definite term is fixed, it has uniformly been considered necessary to use the words, "and until his successor is elected or appointed and qualified," in order to give an officer authority for holding over. A typical case of its kind is that of State ex rel. v. Smith, 87 Mo. 158. The first point to be noticed is that section 14, page 52, creating the five charter offices, provides that the incumbents "shall hold their office for the term of two years." This alone is tantamount to a contrary provision within the meaning of the State Constitution. (4) The tenure is fixed for a definite term, two years. Applying to the construction of this provision the time honored maxim "expressio unius est exclusio alterius," it becomes apparent that this term can not be extended beyond the two years without disregarding the effect of this maxim upon the provisions of the charter. The expression of a definite term of office, two years, is the exclusion of a longer term which would result from reading into the charter the language of the Constitution, "and until their successors are appointed and qualified." The limit of the term under this ancient rule of statutory construction is as firmly fixed at two years as though the charter read "only two years," or "two years and no longer." (5) That it was never intended that charter officers should hold over after the expiration of two years, is made as clear as daylight when we notice that section 14, creating the appointive officers of the city, omits the language "until their successors are appointed and qualified," while section 15, immediately following, and creating the elective officer of the city, does contain this significant language. It may properly be said by reason of the fact that these sections are together in the charter that the charter framers had the language of both of them in their minds at the same time, and that the omission of words of holding over import in the one case and the use of them in the other was by deliberate design. That this is a matter to be taken into consideration, and to be given great weight in the consideration of this case, is a matter too plain to call for much argument or great elaboration.
(1) By American common law, public officers will hold over after the expiration of their terms until their successors are qualified, unless there be a constitutional or statutory prohibition. Dillon's Mun. Corp. (4 Ed.), secs. 219, 220; Tiedeman's Mun. Corp., sec. 81; Mechem on Public Offices and Officers, sec. 397; Throop on Public Officers, secs. 323, 325; Wier v. Bush, 4 Littell (Ky.) 434; McCall v. Mfg. Co., 6 Conn. 437; Tuley v. State, 1 Ind. 502; State ex rel. v. Harrison, 113 Ind. 440; Bath v. Reed, 78 Me. 280. (2) The charter provisions ought not to receive a construction which would lead to absurd or inconvenient results. The contention of the respondents receives additional force from the fact that if they had no right to perform the functions of their offices after the expiration of their terms, no method is provided by the charter for the temporary appointment of persons to discharge their duties. The offices to which they were appointed can only be filled by a nomination by the mayor and confirmation by the upper house of the common council; or, in a certain contingency, by an appointment by the upper house of the common council. In re Griffin, 11 Fed. Cas. 24; State ex rel. v. Slover, 126 Mo. 660; Knowlton v. Moore, 178 U.S. 77; Kane v. Railroad, 112 Mo. 39; State ex rel. v. Seay, 64 Mo. 105. (3) The practical construction of the meaning of the charter provisions by those whose duty it was to execute its provisions, and by the public, is entitled to great weight. Cameron v. Bank, 37 Mich. 243; Harrington v. Smith, 28 Wis. 68; Scanlan v. Childs, 33 Wis. 663; Packard v. Richardson, 17 Mass. 144; Venable v. Railroad, 112 Mo. 125; United States v. Moore, 95 U.S. 763. (4) The construction of the charter contended for by plaintiff is against the policy of the State. In case the language of a statute has a doubtful, uncertain or ambiguous meaning, a court will not interpret it in such a manner that it will countervail the policy of the State. Rowley v. Stray, 32 Mich. 76; Blackwood v. Van Vliet, 30 Mich. 119; Atty.-Gen. v. Smith, 31 Mich. 363; Thomas v. Owens, 4 Md. 221. (5) The respondents hold over under the provisions of the Constitution of this State. Regardless of what the rule may be at common law, the question is settled by section 5 of article 14 of the Constitution of this State. (6) The language of the constitutional provision is to be interpreted in accordance with its ordinary popular meaning. Cooley, Const. Lim. (6 Ed.), pp. 73, 81; People v. Purdy, 2 Hill, 36; Cronise v. Cronise, 54 Pa. St. 260; Alexander v. People, 7 Col. 167; Picking v. State, 26 Md. 504; People v. May, 3 Mich. 606; State v. Johnson, 132 Mo. 109. (7) The language "in the absence of any contrary provision," is, in substance, a proviso, and as such should be strictly construed. Sutherland, Stat. Con., sec. 223; United States v. Dickson, 15 Pet. 164.
OPINION
[167 Mo. 233] In Banc
This proceeding was begun ex-officio by the Attorney-General in the circuit court of Jackson county, Missouri, to oust respondent, Hans Lund from the office of city comptroller of Kansas City, Missouri. There was judgment for respondent from which plaintiff appeals.
Respondent was on the seventeenth day of April, 1899, by and with the advice and consent of the Common Council of Kansas City, Missouri, appointed by its then mayor, James M. Jones, city comptroller for said city. The appointment was made under section 14, article 4, of the charter of the city which is as follows:
"There shall be a city clerk, city assessor, city counselor, city comptroller and city physician, who shall be appointed by the mayor, by and with the advice and consent of the upper house of the common council, and shall hold their office for the [167 Mo. 234] term of two years, unless sooner removed, and who shall perform such duties as may be prescribed by this charter or any ordinance of the city: Provided, however, that the appointments first made under this charter after the general city election of 1890 shall be for one year only, so that the appointments made thereafter shall be made at the beginning of the second year of the mayor's term."
No one has ever been appointed and confirmed as the successor of respondent, and his contention is that having been appointed for a term of two years, he holds over until his successor is appointed and confirmed.
It was held in People v. Tieman, 30 Barb. 193, 8 Abb. Prac. 359, and later by the Supreme Court of the United States in the case of Badger v. United States ex rel. Bolles, 93 U.S. 599, 23 L.Ed. 991, that by the common law, and, in most of the States, when the term of office to which one is elected or appointed expires,...
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