State ex Inf. Mckittrick v. Bode, 35873.
Decision Date | 25 February 1938 |
Docket Number | No. 35873.,35873. |
Citation | 113 S.W.2d 805 |
Parties | STATE OF MISSOURI ex inf. ROY McKITTRICK, Attorney General, Relator, v. IRWIN T. BODE. |
Court | Missouri Supreme Court |
Williams, Nelson & English for respondent.
(1) The Conservation Commission is by the Constitution given the full power, and it is its mandatory duty thereunder, to "determine the qualifications of the director" of conservation. (a) The word "qualifications" as used in said Constitutional Amendment is a comprehensive term and includes all the natural endowments, accomplishments and legal requirements necessary to render a person eligible for a place or position. State ex rel. Attorney General v. Seay, 64 Mo. 101; Black's Law Dictionary (2 Ed.), title Qualification; Bouvier's Law Dictionary; Baldwin's Century (1926 Ed.); Dictionary of Law, by Anderson, 1889; Century Dictionary & Cyclopedia (1913 Ed.); Webster's New International Dictionary (2 Ed.); 8 Oxford Dictionary; Dictionary of Am. & English Law. (b) The word "determine" as used in said Constitutional Amendment means "to fix or decide conclusively or authoritatively." Webster's New International Dictionary (2 Ed.), "Determine;" Century Dictionary & Cyclopedia (1913 Ed.); Black's Law Dictionary (2 Ed.); Bouvier's Law Dictionary (8 Ed.); 3 Oxford Dictionary; Anderson's Dictionary of Law; Culberson v. Watkins, 156 Ga. 185; Cutler v. Wall, 9 R.I. 264; Western Hospital Assn. v. Industrial Accidents Board, 6 Pac. (2d) 848. The rule of construction, expressio unius est exclusio alterius is clearly applicable and all other exceptions or limitations to the exercise of this power are excluded. 12 C.J. 707; State ex rel. Goldman v. Hiller, 278 S.W. 709; State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 952; State ex rel. v. Sullivan, 283 Mo. 546, 224 S.W. 327. (2) The Constitutional Amendment adopted November 3, 1936, being the latest and only specific expression on the subject concerning the qualifications of the position of director of conservation overrules or renders inoperative, in that regard, any portion (if any) of the old Constitution which conflicts with the specific language of the Amendment. State ex rel. Lashley v. Becker, 290 Mo. 560, 235 S.W. 1020; State ex rel. Gordon v. Becker, 329 Mo. 1053, 49 S.W. (2d) 148; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; State v. Hickman, 9 Mont. 370, 23 Pac. 743; State v. Weston, 4 Neb. 218; Bier v. McGehee, 148 U.S. 137, 37 L. Ed. 398; New Orleans Gaslight Co. v. Louisiana L. & H. Producing & Mfg. Co., 115 U.S. 650, 29 L. Ed. 524; Gunn v. Barry, 82 U.S. 610, 21 L. Ed. 215; Fisk v. Jefferson Police Jury, 116 U.S. 131, 29 L. Ed. 588. (3) If the position of Director of Conservation is a public office in this State then the language of the constitutional amendment adopted November 3, 1936, comes into direct conflict with the language of Section 10 of Article VIII of the Constitution and the amendment prevails. (4) The constitutional amendment adopted November 3, 1936, vests in the Conservation Commission the exclusive power or jurisdiction to determine the qualifications of the Director of Conservation and the action or decision of the commission in determining that respondent was in every respect qualified for the position of director, is conclusive upon the courts. Glenn v. Mitchell, 207 Pac. 84, 75 Colo. 393; Rief v. Barrett, 188 N.E. 899; Allen v. Lelande, 127 Pac. 643; Andersen v. Blackwell, 167 S.E. 30; State ex rel. Ford, Atty. General, v. Cutts, 163 Pac. 470; Corbett v. Nayor, 57 Atl. 303; State ex rel. Boulware v. Porter, 178 Pac. 832; Bingham v. Jewett, 29 Atl. 694; State ex rel. O'Donnell v. Houston, 40 La. Ann. 598, 4 So. 482; People v. Mahaney, 13 Mich. 481; Young v. Boles, 122 S.W. 481; Lessard v. Snell, 63 Pac. (2d) 893; Naumann v. Board of City Canvassers, 73 Mich. 252, 41 N.W. 267; State v. Gilmore, 20 Kan. 551; Covington v. Buffet, 45 Atl. 204. (5) The position of Director of Conservation is not an "office in this State" within the meaning of Article VIII, Section 10, of the Constitution and hence said Section 10 has no application. Hastings v. Jasper County, 314 Mo. 144, 282 S.W. 700; State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W. (2d) 105; State ex rel. Hull v. Gray, 91 Mo. App. 438.
Original proceeding in quo wararnto to oust respondent from the position of Director of Conservation. On the filing of an amended answer, relator moved for judgment.
It is admitted that under Constitutional Amendment No. 4 (Laws of 1937, pp. 614, 615), and on November 15, 1937, the Conservation Commission appointed respondent to the position; that at said time he was a resident but had not resided in the State one year next preceding his appointment; that he accepted the appointment, duly qualified, entered upon the duties of the position, and continues to perform the same.
In this connection it should be stated that Section 10, Article VIII of the Constitution provides that "no person shall be elected or appointed to any office in this state ... who shall not have resided in this state one year next preceding his election or appointment."
I. Relator contends that the Director of Conservation is a public officer and not a mere employee, and that respondent should be ousted because he had not "resided in this state one year next preceding his appointment."
It is not possible to define the words "public office or public officer." The cases are determined from the particular facts, including a consideration of the intention and subject matter of the enactment of the statute or the adoption of the constitutional provision. In other words, the duties to be performed, the method of performance, end to be attained, depository of the power granted, and the surrounding circumstances must be considered. In determining the question it is not necessary that all criteria be present in all the cases. For instance, tenure, oath, bond, official designation, compensation and dignity of position may be considered. However, they are not conclusive. It should be noted that the courts and text writers agree that a delegation of some part of the sovereign power is an important matter to be considered. The question is considered at length in 46 Corpus Juris, page 924. In determining that a deputy sheriff was a public officer, we stated the rule as follows:
The constitutional amendment in part follows:
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