State ex inf. Barker v. Duncan
| Decision Date | 02 April 1915 |
| Citation | 175 S.W. 940,265 Mo. 26 |
| Parties | THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. H. I. DUNCAN et al |
| Court | Missouri Supreme Court |
Writ allowed.
John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for relator; Ed. L. Abington and Sam M Phillips of counsel.
(1) Section 11745 to the semicolon in the seventh line is not in contravention of any constitutional provision, and is not rendered invalid by the fact that the remainder of the section is unconstitutional and void. A part of a section may be constitutional and valid, while the remainder may be unconstitutional and void. State ex inf. v. Washburn, 167 Mo 697; State ex rel. v. Wright, 251 Mo. 336; State ex rel. v. Gordon, 236 Mo. 171; State ex rel. v Taylor, 224 Mo. 474; Ensworth v. Kurd, 68 Mo. 282; State ex rel. v. Warner, 197 Mo. 656; Simpson v. Iron Works, 155 S.W. 810; State ex rel. v. Birch, 186 Mo. 215; State v. Kring, 74 Mo. 612; Birch v. Plattsburg, 180 Mo. 413; County Court v. Griswold, 58 Mo. 182; State v. Whitaker, 160 Mo. 59. (2) Section 9 of article 9 of the Constitution to the semicolon in line 4, addresses itself to the Legislature, and is not self executing; while the remainder of the section is self-enforcing and addresses itself to the courts. A section of the Constitution may in part address itself to the Legislature, and in part be self-enforcing. Sharpe v. Biscuit Co., 179 Mo. 561; Woodward v. Redden, 135 Mo.App. 541; Railroad v. Board, 64 Mo. 294; Householder v. Kansas City, 83 Mo. 488. The Legislature has obeyed the part of the section addressed to it and has furnished a means to present to the voters of a county theretofore adopting it, the question of continuing township organization, by enacting the following sections: Section 11745, down to first semicolon in seventh line; Secs. 11652, 11653, 11654, 5828, R. S. 1909. The part of section 9, article 9, providing that township organization shall cease when a majority of the votes cast on that subject are against township organization, and that laws governing counties not under township organization shall immediately take effect, is self-enforcing. McGrew v. Railroad, 230 Mo. 547. (3) When township organization was defeated in Butler county, the laws of the State governing counties not under township organization immediately took effect in said Butler county, and the office of county collector ipso facto was created without an incumbent. Sec. 9, art. 9, Constitution; State ex rel. v. McMillan, 108 Mo. 153; State ex rel. v. County Court, 50 Mo. 317.
David W. Hill for respondent Duncan.
(1) The only part of Sec. 11745, R. S. 1909, which contravenes the Constitution are these words: "All the votes cast at said election." And that is the only part of Sec. 11745 that is unconstitutional. Sec. 9, art. 9, Constitution. (2) Section 9 of article 9 of the Constitution was in full force and effect at the time of the enactment of section 11745, and the purpose of that section of the Constitution and that section of the statute being the same, that is, to accomplish the abolishment of township organization, both must be read together, and when the invalid part of section 11745 is eliminated, and that section is read with section 9 of article 9 of the Constitution, a symmetrical, reasonable law, accomplishing the intent of the people, remains. (3) In any conflict between Sec. 5828, R. S. 1909, under which plaintiff claims the Governor has the right to make the appointment of county collector, and section 11745, the former section must yield to the latter, because of the later enactment of the latter section. (4) The Legislature had the right to enact section 11745, by virtue of the following provision of the Constitution: "When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor has been duly elected or appointed and qualified according to law." Sec. 11, art. 5, Constitution. (5) The plaintiff is attempting to convict the Legislature of doing a useless and unreasonable thing in enacting section 11745, but the court, in construing the statute, will not convict the Legislature of doing a useless or unreasonable thing unless there is no other reasonable construction possible. Hawkins v. Smith, 242 Mo. 688. (6) The plaintiff asks the court to say that the Legislature meant "township officers" when it used the words "county officers" in section 11745, but the courts will not import language into the body of a legislative enactment not necessarily required in order to accomplish the purpose for which it was enacted. Head v. Insurance Co., 241 Mo. 403. (7) Where a court may strike out certain words from the section of a statute, and thereby harmonize all of the provisions of the statute, it is authorized to do so if the provisions of the statute cannot be otherwise harmonized, as it is the presumption that the Legislature never intended to enact an absurd law, incapable of being intelligibly enforced. Bingham v. Birmingham, 103 Mo. 345. (8) The words "county officers," used in section 11745, must be taken in their plain and usual sense. Sec. 8057, R. S. 1909; State ex rel. v. Imel, 242 Mo. 293.
L. M. Henson and Sheppard, Green & Sheppard for remaining respondents.
(1) The facts alleged in the replication are not sufficient in law to disclose a maintainable replication. State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Gibson, 195 Mo. 251; State ex inf. v. Munn, 201 Mo. 214; School Board v. Patten, 62 Mo. 444; State ex rel. v. Railroad, 74 Mo. 163; State ex inf. v. Russell, 197 Mo. 633; Spraigue v. Thompson, 118 U.S. 91; Sec. 9, art. 9, Constitution; Sec. 11745, R. S. 1909. (2) Sec. 11745, R. S. 1909, is null, void and of no force and effect, because it is in violation and contravention of the provisions of section 9 of article 9 of the Constitution of Missouri. State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Wilder, 199 Mo. 503; State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Gibson, 195 Mo. 251; State ex inf. v. Munn, 201 Mo. 214. (3) Section 9 of article 9 of the Constitution of Missouri is not self-executing. State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Gibson, 195 Mo. 251; State ex inf. v. Munn, 201 Mo. 214; State v. Kyle, 166 Mo. 287; School Board v. Patten, 62 Mo. 444; State ex rel. v. Railroad, 74 Mo. 163; State v. Railroad, 75 Mo. 526; Jerman v. Benton, 79 Mo. 148; Arnold v. Hawkins, 95 Mo. 569; Railroad v. Buchanan County, 39 Mo. 485. (4) Sec. 11745, R. S. 1909, is not separable, as its purpose is to accomplish a single object only; and one provision being void, the whole must fail. Cooley's Const. Lim., p. 177; 8 Cyc. 753, 758-9, note 63; 6 Am. & Eng. Ency. Law (2 Ed.), 1088, 1089; County Court v. Griswold, 58 Mo. 199; Railroad v. Brick Co., 85 Mo. 307; State ex rel. v. Field, 119 Mo. 613; Copeland v. City, 126 Mo. 428; Grimes v. Eddy, 126 Mo. 186; Spraigue v. Thompson, 118 U.S. 91. (5) That the election of 1914, pleaded in informant's replication, in so far as it relates to the question of continuing township organization in force in Butler county, was void and of no effect for the reason that there was no valid law in force in this State authorizing the submission of the question of continuing in force township organization in said county. See authorities cited above. (6) There is no such office in existence at this time, nor has there been since township organization went into effect in 1912, as the office of county collector of Butler county, Missouri.
OPINION
In Banc
Quo Warranto.
This is an original proceeding by information in the nature of quo warranto, brought by the Attorney-General, for the purpose of determining the rights of the respondents to the several offices of collector of the revenue of Butler county and of collectors of the several townships in said county.
The matter is before us on the pleadings; such issues having been made up thereby as concede the facts upon which the case turns. Briefly stated these facts are as follows: At the general election held in Butler county in November, 1912, that county adopted the provisions of the statute relating to township organization. Following such adoption respondents herein, except H. I. Duncan and I. H. Barnhill, were elected collectors of the several townships in said county. The respondent Barnhill is the treasurer of Butler county and pursuant to the statutes governing township organization is ex-officio collector of the revenue thereof. Upon the presentation of a sufficient petition to the county court, the proposition to discontinue township organization was properly submitted to the voters of Butler county at the general election held therein in November, 1914. At this election some thirteen hundred votes were cast in favor of the proposition to discontinue and some eight hundred votes against the discontinuance thereof. While of those actually voting upon the proposition of discontinuing, some two-thirds majority concurred in voting township organization out, yet the number of voters voting for a discontinuance was not a majority of the whole vote cast at said election; since the total number of votes cast at the general election in Butler county in 1914 amounted to some forty-two hundred or more. We do not give the exact figures, since they are in nowise material; there being no contention upon the facts; the issues being upon the law.
Upon the canvass of the votes cast for and against township organization, the county court found that such organization had been discontinued by the result of the election held, and said court thereupon proceeded to appoint respondent H. I Duncan as...
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