State ex Inf. Holt v. Meyer

• Decision Date: 31 December 1928
• Docket Number: No. 28772.,28772.
• Citation: 12 S.W.2d 489
• Parties: THE STATE EX INF. JAMES H. HOLT, Prosecuting Attorney, EX REL. WILLIAM JONES, Appellant, v. CHARLES MEYER.
• Court: Missouri Supreme Court

12 S.W.2d 489

THE STATE EX INF. JAMES H. HOLT, Prosecuting Attorney, EX REL. WILLIAM JONES, Appellant, v. CHARLES MEYER.

No. 28772.

Supreme Court of Missouri. Division One.

December 31, 1928.

Appeal from Lawrence Circuit Court. — Hon. S.W. Bates, Special Judge.

AFFIRMED.

Robert Stemmons and James E. Sater for appellant.

(1) The procedure prescribed by the statute for the selection of road commissioner of a special road district is not such an election as is governed by the election laws of the State, and relator was entitled to show by whom and for whom the votes were cast. State ex inf. v. Heeferman, 243 Mo. 442; State ex rel. v. McClain, 187 Mo. 409. (2) The city of Mt. Vernon had the right to cast one vote only. Sec. 10802, R.S. 1919. When the statute is awkwardly worded a construction giving it a meaning in accord with common sense is proper. State ex rel. v. Schmoll, 282 S.W. 702.

R.V. McPherson and Parker Potter for respondent.

(1) Sec. 10802, R.S. 1919, when enacted in 1895, could have but one meaning, that the mayor, each alderman and each member of the county court, when met for the purpose of selecting road commissioners, should have a voice in the matter, and this part of the section has never been changed. The proviso added to this section in 1915, in no way affected the original section. (2) A proviso in a statute is to be strictly construed. It takes no case out of the enacting clause which is not fairly within the terms of the proviso. In re Matthews, 109 Fed. 614; Dgraff v. Went, 164 Ill. 485; McRay v. Holcomb, 46 Ark. 306. A corollary to this proposition is that no proviso should be construed so as to destroy the enacting clause.

GANTT, J.

An information in the nature of a quo warranto, filed April 15, 1927, in the Circuit Court of Lawrence County, by the Prosecuting Attorney of said county, at the relation of William Jones, against Charles Meyer.

It is an effort to oust Meyer from the office of Road Commissioner of the Mt. Vernon Special Road District, in said county. The pleadings are not challenged. On hearing the evidence, the information was dismissed, and relator appealed.

The case involves the title to an office under this State, and we have appellate jurisdiction. [Sec. 12, Art. VI, Const.; Sec. 5, Art. VI, Amendment 1884; Ramsey v. Huck, 267 Mo. 333, l.c. 336, 184 S.W. 966; State ex rel. v. Rombauer, 101 Mo. 501, 14 S.W. 726; MaCrae v. Coles, 183 S.W. 578; State ex rel. v. Harter, 188 Mo. 516, l.c. 528, 87 S.W. 941.]

By authority of Section 10802, Revised Statutes 1919, and on February 17, 1927, the mayor and members of the council of Mt. Vernon met with the members of the County Court of Lawrence County in the county court room in Mt. Vernon to appoint a road commissioner for the Mt. Vernon Special Road District. Mt. Vernon is a city of the fourth class, with a mayor and eight councilmen, and is the county seat of Lawrence County. At the meeting, the members of the county court, the mayor and seven councilmen were present. On a vote being taken, respondent Charles Meyer received six votes and relator William Jones received four votes. The presiding judge did not vote, and one of the councilmen was absent.

It is alleged in the information that two members of the county court voted for relator William Jones. This is not denied in the answer, so it must be taken as admitted. The record of the meeting kept by the county clerk is in evidence and records the vote by ballot as follows: Jones 4, Meyer 6. It follows that all of the votes for Meyer were by members of the city government.

Relator has a special interest as claimant to the office and is, therefore, entitled to maintain the suit. [State ex rel. Pickett v. Cairns, 265 S.W. l.c. 529; State ex inf. v. Heffernan, 243 Mo. 442, l.c. 450, 148 S.W. 90; Ferris, Extraordinary Remedies, pp. 169-170.]

Respondent Meyer contends that under Section 10802, Revised Statutes 1919, the mayor and councilmen are each entitled to cast a vote for commissioner.

Relator Jones contends the mayor and councilmen sit as one member of the county court and together have only one vote, and that two members of the county court having voted for him he thereby received a majority of the legal votes cast.

These contentions call for a construction of Section 10802, which section as originally enacted is as follows:

"The mayor and members of the city council of any city or town within any special road district thus organized, together with the members of the county court of the county in which said district is located, at a meeting to be held in the county court room, at which meeting the presiding judge of the county court shall preside and the county clerk shall act as clerk, within two weeks after the voters within the territory of such proposed district shall adopt the provisions of this act, shall, by order of record to be kept by the county clerk, appoint a board of commissioners composed of three persons, designating one to serve for three years, one for two years, and one for one year, and in February every year thereafter one commissioner shall be appointed as above specified, to serve for three years; all such commissioners shall be resident taxpayers of the district, and shall serve until their successors are appointed and qualified — vacancies to be filled as original appointments are made. Resignations shall be to the county clerk. Removal from the district shall create a vacancy. Such commissioners, before entering upon the discharge of their duties, shall take oath of office, to be administered by the clerk of the county court." [Laws 1895, p. 253.]

It will be noted that on the...