State ex inf. McKittrick v. Whittle

• Decision Date: 23 August 1933
• Docket Number: 33164
• Citation: 63 S.W.2d 100,333 Mo. 705
• Parties: State of Missouri on Information of Roy McKittrick, Attorney-General, Relator, v. Otto Whittle
• Court: Missouri Supreme Court

63 S.W.2d 100

333 Mo. 705

State of Missouri on Information of Roy McKittrick, Attorney-General, Relator, v. Otto Whittle

No. 33164

Supreme Court of Missouri

August 23, 1933

Ouster was ordered.

Roy McKittrick, Attorney-General, and Gilbert Lamb, Assistant Attorney-General, for relator.

(1) A common school district in Missouri is a political subdivision of the State. Arts. II, III, Ch. 57, R. S. 1929; State ex rel. Carthage v. Hackmann, 287 Mo. 190; State ex rel. v. Bd. of Curators, 268 Mo. 608; Wilson v Drainage Dist., 237 Mo. 46; Morrison v. Morey, 146 Mo. 561; Goldtree v. City of San Diego, 97 P 216; Sorenson v. Superior Court, 254 P. 230; Fairless v. Water Imp. Dist., 25 S.W.2d 651; Lydecker v. Englewood Tp. Drainage & Water Comrs., 41 N. J. L. (12 Vroom) 157. (2) A school director in a common school district in Missouri is a public officer. State ex rel. Zevely v. Hackmann, 300 Mo. 67; Hasting v Jasper County, 314 Mo. 149. (3) The voting for the employment of a teacher by a director of a common school district, who are related within the prohibited degree, when such voting results in the employment of the teacher violates the nepotic law. Sec. 13, Art. XIV, Const. of Mo.; Brown v. O'Connel, 36 Conn. 447; State ex rel. Cook v. Doss, 134 S.E. 751; State ex inf. Norman v. Ellis, 325 Mo. 154.

R. P. Stone for respondent.

(1) Applicable Rules of Construction. (a) In interpreting the language of the Constitution, the words actually used must be presumed to have been employed in their natural and ordinary meaning. State ex rel. v. Board of Curators, 268 Mo. 608. (b) However, where the language of a section of the Constitution is ambiguous, leads to an absurd result, or is inconsistent with other sections of the same instrument (when the language thereof is construed in its ordinary and customary meaning), resort may be had to the history of the times when said section of the Constitution was passed, the circumstances and conditions of the people at the time, as well as the history of the instrument itself, and Hamilton v. St. Louis County Court, 15 Mo. 3; State ex rel. Heimberger v. Board of Curators, 188 S.W. 128, 268 Mo. 598; State ex rel. v. Hackmann, 240 S.W. 135, 293 Mo. 313. (c) Resort may be had to the actual and practical construction placed on the section of the Constitution under consideration by the officers affected, and such actual and practical construction by such officers is pursuasive to the court. State ex rel. Koeln v. St. Louis Y. M. C. A., 168 S.W. 589, 259 Mo. 233; In re Publication of Docket of Supreme Court, 232 S.W. 454; State ex rel. Natl. Life Ins. Co. v. Hyde, 241 S.W. 396, 292 Mo. 342; Williams v. Williams, 30 S.W.2d 69, 235 Mo. 963; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435; Hamilton v. St. Louis County Court, 15 Mo. 3; State ex rel. v. Thompson, 5 S.W.2d 57, 319 Mo. 492; State ex rel. Russell v. State Highway Commission, 42 S.W.2d 196, 328 Mo. 942. (2) A school district is not a "political subdivision" of the State within the meaning of the term as it is used in Sec. 13 of Art. XIV of the Constitution. Sec. 13 of Art. XIV, Const. of Mo.; Kansas City v. Neal, 122 Mo. 234; State ex rel. v. Ingram, 298 S.W. 37, 317 Mo. 1141; School District v. Boyle, 81 S.W. 409, 182 Mo. 347. (3) Even though a school district is a "political subdivision" of the State, a school director of a common school district does not have "the right to name or appoint any person to render service" to such school district. Secs. 9209, 9271, 9283, 9284, 9287, 9289, R. S. 1929; State v. Lawrence, 178 Mo. 374; Pugh v. School District No. 5, 114 Mo.App. 690; People v. Ry. Co., 306 Ill. 402, 138 N.E. 129; City of Centralia v. McKee, 267 Ill.App. 585. (4) Even if extrinsic evidence relative to the proper construction of Sec. 13 of Art. XIV of the Constitution is considered, such evidence shows conclusively that the framers of such section of the Constitution did not intend for said section to apply to members of boards, bureaus and commissions merely having the right to vote for the appointment of an officer as distinguished from the right to name or appoint an officer. (a) Actions of persons that would be affected should such construction be adopted, demonstrates that such persons do not believe themselves affected by said section of the Constitution. (b) The Journal of the Convention which proposed Sec. 13 of Art. XIV of the Constitution shows conclusively that the delegates thereof were not of the opinion that said section of the Constitution was applicable to any other than an officer (singular) who had the right to name or appoint a person by virtue of his official position. Journal of the Convention for the 219th day -- 235th day. (c) Nepotism provisions of constitutions and statutes which were in existence at the time of the framing of the nepotism section of the Missouri Constitution expressly provide that such provision be applicable to an officer having the right to vote for the appointment of officers or employees. Sec. 6529, R. S. 1929; Hendrix v. Morris, 191 S.W. 949, 127 Ark. 222; Barton v. Alexander, 148 P. 471, 127 Idaho 286; Fearless v. Cameron Co. Water District, 25 S.W.2d 651. Therefore, since said words are omitted in Sec. 13 of Art. XIV of the Constitution of Missouri, it is to be presumed that such omission was intentional. (5) Logan Stone was not appointed or named as school teacher of District No. 92 in Miller County, Missouri, by the respondent. (See authorities under point 4.)

OPINION

Gantt, C. J.

Original proceeding in this court. Information in the nature of quo warranto. In substance it is alleged that at a lawful meeting of the board of directors of a common school district in Miller County, Logan Stone was by said board employed and contracted with as teacher of the school in said district; that Stone is a first cousin by affinity of respondent Otto Whittle, a director of said district; that he was so employed by said board as the result of respondent Whittle and another director of the district voting in favor of him for the position; that the other director of said district voted against the employment of Stone to teach the school; that respondent Whittle by voting to employ Stone as teacher violated Section 13, Article XIV of the Constitution, and thereby forfeited his office as director of the school district. The case was submitted on respondent Whittle's demurrer to the information.

It is a matter of common knowledge that at the time of the Constitutional Convention in 1922-1923, and for a long time prior thereto, many officials appointed relatives to positions and thereby placed the names of said relatives upon the public payrolls. The power was abused by individual officials and by members of official boards, bureaus, commissions and committees with whom was lodged the power to appoint persons to official positions. It also was abused by officials with whom was lodged the power to appoint persons to official positions, subject to the approval of courts and other functionaries of the State and its political subdivisions.

It also is a matter of common knowledge that many of the relatives were inefficient and some of them rendered no service to the public. To remedy this widespread evil, the convention proposed to the people an amendment to the Constitution, designated therein Section 13, Article XIV, which follows:

"Any public officer or employee of this State or of any political subdivision thereof who shall, by virtue of said office or employment, have the right to name or appoint any person to render service to the State or to any political subdivision thereof, and who shall name or appoint to such service any relative within the fourth degree, either by consanguinity or affinity, shall thereby forfeit his or her office or employment."

It was adopted by the people on February 26, 1924. The submission and adoption of the amendment conclusively shows that the abuse of said power was state-wide.

Even so, respondent contends that said provision of the Constitution is not directed against school directors who participate as such in naming a teacher. He argues that a director is without authority in the matter, citing Section 9209, Revised Statutes 1929, which provides that the board shall have power, at a lawful meeting, to contract with and employ a teacher by order of record.

Of course, there must be a substantial compliance with the statute. Otherwise the teacher is not employed. It follows that as between the district and the teacher, the power to employ is lodged with the board. However, as between the public and a director "the right to name or appoint" a teacher is not determined by reference to the statute. To hold that said "right" is so determined would convict the people of intending to eradicate only a small part of the evil. Furthermore, to so hold would be absurd. Respondent also argues that the amendment is only directed against officials having all the right (power) to appoint. We do not think so. The question must be determined upon a construction of the amendment. It is not so written therein. The amendment is directed against officials who shall have (at the time of the selection) "the right to name or appoint" a person to office. Of course a board acts through its official members, or a majority thereof. If at the time of the selection a member has the right (power), either by casting a deciding vote or otherwise to name or appoint a person to office, and exercises said right (power) in favor of a relative within the prohibited degree, he violates the...