State ex inf. Barker v. Southern

• Decision Date: 01 June 1915
• Parties: THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. ALLEN C. SOUTHERN and OLIVER C. SHELEY. THE STATE ex rel. ALLEN C. SOUTHERN v. MILES BULGER et al., Judges of the County Court of Jackson County
• Court: Missouri Supreme Court

177 S.W. 640

265 Mo. 275

THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. ALLEN C. SOUTHERN and OLIVER C. SHELEY. THE STATE ex rel. ALLEN C. SOUTHERN v. MILES BULGER et al., Judges of the County Court of Jackson County

Supreme Court of Missouri

June 1, 1915

Writ of quo warranto quashed as to respondent Southern and sustained as to respondent Sheley. Judgment of county court quashed on certiorari.

Sparrow & Page for Allen C. Southern, relator and respondent.

Sec 10556, R. S. 1909, is a general, and not a special law, and is therefore, not violative of Pars. 2, 32 or 33, Sec. 53 Art. 4. Constitution of Missouri. Ex parte Loving, 178 Mo 203; State ex rel. v. Pond, 93 Mo. 620; State v Walsh, 136 Mo. 405; Elting v. Hickman, 172 Mo. 257; State ex rel. v. Yancey, 123 Mo. 391; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. County Court, 128 Mo. 427; State ex inf. v. Insurance Co., 150 Mo. 113; State v. Hays, 88 Mo. 344; State ex inf. v. Fleming, 147 Mo. 1; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186. The Attorney-General, in his reply to the return of respondent Sheley, having relied upon the constitutionality of section 10556, is estopped in his action against respondent Southern, from asserting that the section is unconstitutional. 8 Cyc. 793; State ex rel. v. Board of Liquidators, 28 La. Ann. 121; New Orleans v. Bank, 167 U.S. 371; Driving Park v. Kansas City, 174 Mo. 425.

Hadley, Cooper & Neel, W. M. Williams and John S. Wright for respondent Sheley; Edward L. Scarritt and Cyrus Crane of counsel.

(1) The matter in controversy is properly before this court under the quo warranto and not the certiorari proceeding, as the action of the county court in appointing Sheley was purely administrative. State ex rel. v. Harrison, 141 Mo. 12. (2) Sheley is the lawfully constituted and appointed highway engineer of Jackson county, because: 1st. The last proviso in Sec. 10556, R. S. 1909, applicable to Jackson county alone, and the two preceding provisions, both applicable to Jackson county and St. Louis county and one to Buchanan county and Clay county, to the effect that the County Surveyor shall be ex officio Highway Engineer, are void as violative of pars. 2, 15, 32 and 33, Sec. 53, Art. 4, Constitution of Missouri. (a) The provisions are local and special legislation, not applicable to other counties generally and not justified by any peculiar necessity therefor. State ex rel. v. Roach, 258 Mo. 561; State ex rel. v. County Court, 89 Mo. 337; State ex rel. v. Hermann, 75 Mo. 340; State ex rel. v. Williams, 232 Mo. 53; State ex rel. v. Miller, 100 Mo. 477; State ex rel. v. Railroad, 246 Mo. 512; Bridges v. Mining Co., 252 Mo. 53. (b) Such local legislation is unconstitutional where, as here, a general law existed and could have been made applicable. State ex rel. v. Roach, 258 Mo. 566; Wooley v. Mears, 226 Mo. 41; State ex rel. v. Williams, 232 Mo. 74; Hays v. Mining & Milling Co., 227 Mo. 300; Murane v. St. Louis, 123 Mo. 479; 1 Lewis's Sutherland on Statutory Construction (2 Ed.), sec. 191. (c) The last proviso aforesaid is special legislation because it prescribes local conditions existing at and limited to the time of the passage of the act. State ex rel. v. Herrmann, 75 Mo. 340. (d) Except for such void provisos, the county court had full power and discretion to appoint Sheley. Section 10551, R. S. 1909. 2nd. Even if the provisos were unconstitutional, they must be construed, when taken together with the remaining sections of the act and the manifest intent of the Legislature, to require the appointment by the county court of a competent, qualified engineer when the county surveyor was unqualified, and Southern's appointment was void insofar as the ex officio function of Highway Engineer was concerned because he was not qualified. Sec. 10551, R. S. 1909; State ex rel. v. King, 44 Mo. 283; Gist v. Construction Co., 224 Mo. 379, 388; Perry v. Strawbridge, 209 Mo. 636; Rutter v. Carothers, 223 Mo. 642; State ex rel. v. McQuillin, 246 Mo. 534; State ex rel. v. Seehorn, 246 Mo. 576; State ex inf. v. Amick, 247 Mo. 282; Gasconade County v. Goodson, 241 Mo. 581; State ex rel. v. Ryan, 232 Mo. 92; Glaser v. Rothschild, 221 Mo. 209; State v. Eckhardt, 232 Mo. 53. 3rd. Independent of statute, Southern's appointment was void as a matter of law, insofar as the ex officio function of Highway Engineer was concerned because he was not qualified. State ex rel. v. Newman, 91 Mo. 445; State ex rel. v. Meek, 129 Mo. 437; Mechem's Public Offices and Officers, sec. 83, p. 31; Throop on Public Officers, sec. 73; People ex rel. v. Board, 129 N.Y. 360.

A. L. Cooper for respondent Judges of County Court.

BOND, J. Faris, J., dissents.

OPINION

In Banc

Quo warranto and Certiorari.

I.

BOND J.

-- Two original proceedings were instituted in this court. One is a certiorari sued out by Allen C. Southern, as shown in the above caption, against the three justices of the county court of Jackson county, Missouri, to quash its judgment entered on the 8th of March, 1915, in the following form:

"The court finds that a vacancy exists in the office of County Highway Engineer of this county.

"Wherefore, it is now ordered by the court that Oliver C. Sheley, Jr., a resident of Jackson county, Missouri, who possesses the qualifications required by law, be and he is hereby appointed County Highway Engineer of Jackson county, Missouri, for a term ending on the first Monday in February, 1916. His compensation is fixed at two thousand dollars per annum, payable in equal monthly installments. He shall furnish a bond, conditioned as required by law, in the sum of fifty thousand dollars, to be approved by this court. The bonds of his assistants are fixed at one thousand dollars, each to likewise be approved by this court."

Two of said justices concurring in the above and one dissenting thereto.

After notice of the application for said writ of certiorari, the Attorney-General, on the 5th day of April, 1915, brought the second proceeding shown in the above caption as an information in the nature of a quo warranto, charging that the defendants thereto, to-wit, Allen C. Southern and Oliver C. Sheley, Jr., were unlawfully exercising the office of County Highway Engineer within and for the county of Jackson and State of Missouri. An order to show cause was made by this court on said date, to which the defendants respectively made returns. Defendant Allen C. Southern stated in his return in substance that he was appointed by the Governor of this State on February 3, 1915, to be County Surveyor of Jackson county, Missouri, to succeed Rowland T. Proctor, who had been elected to that office but had died prior to the expiration of his term; that respondent Allen C. Southern was duly commissioned and having duly qualified himself as required by the laws of Missouri, entered upon the duties of said office; that by virtue of his said appointment and qualification and the provisions of section 10556, Revised Statutes 1909, he became ex officio County Highway Engineer of said county, and with legal right and authority has continued to exercise and perform the duties of said office.

Respondent Oliver C. Sheley, Jr., in his separate return averred that he was lawfully holding the office of County Highway Engineer in that the section of the statute relied upon to support the title of respondent Southern under the appointment by the Governor was unconstitutional, and hence the county court of Jackson county "on March 8, 1915" (by virtue of the terms aforesaid), there then being a vacancy in the office of County Highway Engineer, appointed him, the said Sheley, pursuant to section 10551, Revised Statutes 1909, for a term expiring at the first meeting of said court in February, 1916, and that he accepted said appointment and qualified and entered upon the duties of said office. He further avered that the said Southern was ineligible to the office in question, and concluded his return by praying judgment sustaining his title to said office. It was stipulated by the parties that the two preceedings should be heard together, and they further stipulated upon an agreed state of facts whereon they should be disposed of in this court in the following form:

"For the purpose of the hearing of this cause in the above court it is hereby agreed and stipulated by and between John T. Barker, Attorney-General, informant, and Sparrow & Page, attorneys for Allen C. Southern, respondent, in the above entitled cause, as follows:

"1. It is agreed that Rowland T. Proctor was at the general election held November 5, 1912, elected to the office of County Surveyor of Jackson county, Missouri, for a term of four years; that said Proctor qualified as such County Surveyor as required by law; that on or about January 6, 1915, said Proctor, while holding said office of County Surveyor of Jackson county, departed this life.

"2. It is further agreed that on February 3, 1915, respondent Allen C. Southern was by Elliott W. Major, Governor of the State of Missouri, appointed and commissioned County Surveyor of said Jackson county, to succeed said Rowland T. Proctor, deceased, and to serve the unexpired term of said Proctor; that thereafter, and on or about February 17, 1915, said Southern qualified in the manner, within the time, and as required by law, as such County Surveyor of Jackson county.

"3. It is further agreed that at the date of the election of said Rowland T. Proctor, County Surveyor of Jackson county, and of respondent Southern's appointment and commission as his successor, said Jackson county had, and now has, a population of more than fifty thousand inhabitants; that during all said time the taxable wealth of said county exceeded, and now exceeds, the sum of...