State ex Inf. Burgess v. Hodge

• Decision Date: 30 July 1928
• Docket Number: No. 28395.,28395.
• Citation: 8 S.W.2d 881
• Parties: THE STATE EX INF. JOHN T. BURGESS, Prosecuting Attorney of Barry COUNTY, EX REL. W.E. HANKINS, Appellant, v. J.T. HODGE.
• Court: Missouri Supreme Court

8 S.W.2d 881

THE STATE EX INF. JOHN T. BURGESS, Prosecuting Attorney of Barry COUNTY, EX REL. W.E. HANKINS, Appellant, v. J.T. HODGE.

No. 28395.

Supreme Court of Missouri, Court en Banc.

July 30, 1928.

Appeal from Barry Circuit Court. — Hon. Charles L. Henson, Judge.

AFFIRMED.

J.E. Sater, D.H. Kemp and Gene Frost for appellant.

(1) Respondent at the time of the election April 5, 1927, did not possess the qualifications required by the statutes. Sec. 11343, R.S. 1919, as amended Laws 1923, p. 359; State ex rel. v. Meek, 129 Mo. 437; State ex rel. v. Hollowell. 288 Mo. 674. (2) The respondent claims he did hold first-grade county certificate authorizing him to teach in the county, and this case turns upon the question as to whether or not he did actually possess, at the time of the election, first-grade county certificate. Secs. 11358, 11361, R.S. 1919; Sec. 10942, R.S. 1909; Jenkins v. Mutual Life Ins. Co., 175 Mo. 383; Tannenbaum v. Bloomingdale, 58 N.Y. Supp. 235. "Renewal is substitution of new right or obligation for another of the same nature." Sponhaer v. Malloy, 21 Ind. App. 287. The revival of a judgment is analogous to the renewal of the certificate and a revival of judgment dates from the date of the revival instead of the original judgment. Kratz v. Preston, 52 Mo. App. 251; Goddard to use v. Delaney, 181 Mo. 564; State ex rel. Snyder v. Newman, 91 Mo. 445; VanDorn v. Anderson, 219 Ill. 32; Marrs v. Matthews (Texas). 270 S.W. 586. (2) It is conceded that the respondent did not file statement of money expended in his campaign election as required by the statute. Secs. 5031, 5032, 5033, R.S. 1919. If the Corrupt Practice Act is to be given force and effect the failure of respondent to comply therewith prevents him from receiving certificate of election and prevents him from qualifying as such officer and from receiving emoluments thereto.

J.S. Davis and H.A. Gardner for respondent.

(1) County Superintendent of Schools is an office created by statute. R.S. 1919, sec. 13343. Laws 1923, p. 359. Such an officer has no general or common-law powers, but must find warrant in statutory enactment for all his official acts. Harris v. Kill, 108 Ill. App. 305; Sherlock v. Winnetka, 68 Ill. 530. (2) He has power to grant, to renew, to indorse, and to revoke certificates. All of these acts are provided for an limited by statutory law. A first-grade certificate is valid for three years. R.S. 1919, sec. 11358. And it can be renewed without examination an unlimited number of times. R.S. 1919, secs. 11361, 11362. These statutory exhibits become a permanent record, and they apply only to certificates granted; the phrasing and grammatical construction confine them to that class of certificates alone. (3) So when Exhibit B was granted to respondent on June 5, 1915, it was valid for three years, and all these statutory exhibits, individuating it, were placed of record, and each and all of them became and were component parts of said certificate; and, thereafter, the County Superintendent had no power or authority to change its date. Where a teacher is examined and graded and a license is issued to him according to his grade, to teach for a certain length of time, his papers cannot afterwards be regarded so as to reduce his license to teach for a less time; and, the fact that he consents to a re-examination and re-grading does not affect his rights under the first license. 35 Cyc. 1069; Hill v. Swinney, 72 Miss. 248. No attempt was made to revoke this certificate, but it was renewed three times, and the clause limiting its duration to three years from the date of its re-issuance, not being within the authority of the superintendent to make, should, in construction, be disregarded as surplusage; and, when thus properly construed, it amounts only to a renewal or extension of the original for a period of three years from its date — June 5, 1915. The same is true of Exhibits F and E. State v. Fritts, 169 Ind. 361; Brown v. Owen, 75 Miss. 319. (4) Appellant asserts, but does not seriously contend, that respondent had violated the Corrupt Practice Act in failing to file with the county clerk a list of his campaign expenses, and hence, should not be permitted to hold his office. As appellant seems to realize, there can of necessity be no merit to this assertion. The Corrupt Practice Act is penal in its every nature and fiber, and should be strictly construed. State ex inf. v. Bland, 144 Mo. 555. The only discrepancy charged against respondent is that he failed to file his expense statement within the thirty days designated by law.

ATWOOD, P.J.

This is a proceeding in the nature of quo warranto questioning the right of respondent, J.T. Hodge, to hold the office of County Superintendent of Public Schools for Barry County. Relator has appealed from a judgment adverse to him rendered in the Circuit Court of Barry County.

It appears from the record that on April 3, 1923, relator was duly elected County Superintendent of Public Schools for Barry County to serve as such until the first Monday in July, 1927, or until his successor was elected and qualified; that he thereupon duly qualified and entered upon and continued to discharge the duties of that office; that on April 5, 1927, at the annual school election held in Barry County, Missouri, relator and respondent were candidates for the office of County Superintendent of Public Schools; that respondent was duly elected thereto, and on April 9, 1927, received a commission pursuant to said election, took the oath of office and filed his bond which was duly approved by the county court; that prior to July 4, 1927, and pursuant to request of the secretary of the State Board of Education, respondent received sealed bids for text-books and made recommendations and submitted names to the county court for the County Text Book Commission; that on July 4, 1927, respondent demanded of relator that he turned over to him all books, papers, certificate stub-books and records in his possession as such County Superintendent of Public Schools; that relator refused to comply with this demand, and thereafter caused this proceeding to be instituted.

The user shown is sufficient to authorize a proceeding in quo warranto. [State ex rel. v. Meek, 129 Mo. l.c. 436.] The qualifications of relator are not questioned, but the right of respondent to hold the office is challenged on two grounds, first, that on the date of his election he did not have a certificate entitling him to teach in the public schools of Barry County as required by law, and second, that he did not file a statement of his campaign expenses within the time provided by law.

Relative to the first proposition, Section 11343, Revised Statutes 1919, as amended (Laws 1923, p. 359), among other qualifications of a County Superintendent of Public Schools, provides that he "shall at the time of his election hold a diploma from one of the state normal schools or state colleges, or state university, or shall hold a state certificate, authorizing him to teach in the public schools of Missouri, or shall hold a first-grade county certificate authorizing him to teach in the county of which he is superintendent."

The uncontradicted evidence as to respondent's qualifications was that a first-grade certificate was issued to him by relator who was then County Superintendent of Public Schools for Renewal Barry County, Missouri, on June 5, 1915, which Period. authorized respondent to teach in the public schools of any county in the State of Missouri for a term of three years from that date; that respondent taught under that certificate and on June 2, 1918, it was renewed; that respondent continued to teach under the renewed certificate, and on March 14, 1921, the original certificate was again renewed; that respondent continued to teach under the renewed certificate, and on March 8, 1924, the original certificate was renewed for the third time. Relator was Superintendent of Public Schools for Barry County each time the original first-grade certificate was renewed, and the papers evidencing these various acts bear his signature as such School Superintendent. After the third renewal of his first-grade certificate respondent continued to teach thereunder, and some time in April, 1927, after his election, respondent applied to relator, who was then County Superintendent of Public Schools for Barry County for a term continuing until the first Monday in July, 1927, or until his successor was elected and qualified, for a fourth renewal of his certificate. Relator thereupon told respondent that he could not renew his certificate at that time as the time of the examination had passed, such being the first Friday and Saturday in March, and that he would have to wait until June. Respondent again presented his certificate to relator on the date of the examination, June 4, 1927, and requested that relator renew it. Relator again refused to renew the certificate, this time on the ground that respondent's certificate expired in March, 1927. The uncontradicted evidence further showed that at the time of respondent's election he had college hours and college credits which entitled him, on presentation of the same to the State Superintendent of Public Schools, to a teacher's state certificate, and that...