State ex inf. McKittrick v. Bode

• Decision Date: 25 February 1938
• Docket Number: 35873
• Parties: State of Missouri ex inf. Roy McKittrick, Attorney General, Relator, v. Irwin T. Bode
• Court: Missouri Supreme Court

113 S.W.2d 805

342 Mo. 162

State of Missouri ex inf. Roy McKittrick, Attorney General, Relator, v. Irwin T. Bode

No. 35873

Supreme Court of Missouri

February 25, 1938

Writ denied.

Roy McKittrick, Attorney General and Franklin E Reagan, Assistant Attorney General, for relator James T. Blair, Jr., of counsel.

(1) Respondent was ineligible to be appointed to any office in this State because he was a nonresident; a writ of ouster should be issued. Mo. Const., Art. VIII, Sec. 10; State ex rel. v. Valle, 41 Mo. 29. (2) In construing the Constitution effect should be given to every part thereof. State ex rel. v. Highway Comm., 42 S.W.2d 196, 328 Mo. 942; State ex rel. v. Becker, 49 S.W.2d 46, 329 Mo. 1053; State ex rel. v. Koeln, 61 S.W.2d 750, 332 Mo. 1229; State ex rel. v. Hackmann, 313 Mo. 33, 282 S.W. 1007. (3) The Constitutional Amendment 4 does not vest arbitrary, dictatorial power in the Conservation Commission it is to be harmonized with other parts of the Constitution. State ex rel. v. Board of Curators, Univ. of Mo., 268 Mo 598, 188 S.W. 128.

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 P.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 P. 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 P. 84, 75 Colo. 393; Rief v. Barrett, 188 N.E. 899; Allen v. Lelande, 127 P. 643; Andersen v. Blackwell, 167 S.E. 30; State ex rel. Ford, Atty. General, v. Cutts, 163 P. 470; Corbett v. Nayor, 57 A. 303; State ex rel. Boulware v. Porter, 178 P. 832; Bingham v. Jewett, 29 A. 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 P.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 A. 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.

Gantt, J. Hays, C. J., Frank and Douglas, JJ., concur; Ellison, J., concurs in the result in separate opinion in which Leedy and Tipton, JJ., concur.

OPINION

GANTT

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:

"A public office is defined to be 'the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.' [Mechem, Pub. Offices, 1.] The individual who is invested with the authority and is required to perform the duties is a public officer.

"The courts have undertaken to give definitions in many cases, and while these have been controlled more or less by laws of the particular jurisdictions, and the powers conferred and duties enjoined thereunder, still all agree substantially that if an officer receives his authority from the law and discharges some of the functions of government he will be a public officer. [State v. Valle, 41 Mo. 30; People ex rel. v. Langdon, 40 Mich. 673; Rowland v. Mayor, 83 N.Y. 376; State ex rel. v. May, 106 Mo. 488.]

"Deputy sheriffs are appointed by the sheriff, subject to the approval of the judge of the circuit courts; they are required to take the oath of office, which is to be indorsed upon the appointment and filed in the office of the clerk of the circuit court. After appointment and qualifications they 'shall possess all the powers and may perform any of the duties prescribed by law to be performed by the sheriff.' [R. S. 1889, secs. 8181 and 8182.]

"The right, authority and duty are thus created by statute; he is invested with some portions of the sovereign functions of the government to be exercised for the benefit of the public and is, consequently, a public officer within any definition given by the courts or text writers.

"It can make no difference that the appointment is made by the sheriff, or that it is in the nature of an employment, or that the compensation may be fixed by contract. The power of appointment comes from the State, the authority is derived from the law, and the duties are exercised for the benefit of the public. Chief Justice Marshall defines a public office to be 'a public charge or employment.' [U.S. v. Maurice, 2 Brock, 96.] Whether a public employment constitutes the employee a public officer depends upon the source of the powers and the character of the duties.

"The Constitution requires 'all officers both civil and military, under authority of this state' before entering on the...