State ex rel. Baker v. Fiala

• Decision Date: 31 January 1871
• Citation: 47 Mo. 310
• Parties: THE STATE OF MISSOURI ex rel. ANDREW J. BAKER, ATTORNEY-GENERAL, v. JOHN T. FIALA.
• Court: Missouri Supreme Court

47 Mo. 310

THE STATE OF MISSOURI ex rel. ANDREW J. BAKER, ATTORNEY-GENERAL,

v.JOHN T. FIALA.

Supreme Court of Missouri.

January Term, 1871.

Petition for Quo Warranto.

A. W. Slayback, with Baker, Attorney-General, for petitioner.

The object of the Legislature was to create uniformity in the several counties requiring a treasurer, and courts must so construe the several enactments as to carry out that intention in good faith. Had the Legislature intended to except the county of St. Louis from the system of biennial elections for county treasurers in the several counties, such intention should have been expressed by declaring said law not applicable to St. Louis county, as is done in the law concerning assessors (Gen. Stat. 1865, ch. 12, § 1). Standing as it does, the only law in force under which such an election for treasurer can now be held, and no other form of election being provided by law under the existing constitution, it is fair to presume that the Legislature did not intend any omission to provide for the election of a county treasurer in St. Louis county. Hence the general law applies as well and is as much in force in St. Louis county as any other, and Mr. Mathias was legally elected upon the proper day, and is entitled to the office by virtue of his said election.

In 38 Mo. 534, in the Vastine case, which has been cited as asserting a contrary inference, the Supreme Court held: “But it may be regarded as equally well settled that a subsequent statute, which is clearly repugnant to a prior one, necessarily repeals the former, although it does not do so in express terms. ‘ Leges posteriores priores abrogant.”’ Under that decision the law of 1857 was unquestionably repealed. It was not essential that it should be repealed in express words. It was repugnant to the new constitution and to section 1, chapter 38, of the statutes--laws which were subsequent to 1857, and which inaugurated a system of uniformity throughout the entire State for the election of county treasurer at each biennial general election; and if this general system had not been designed and intended to operate in St. Louis county, it would have been mentioned in the act that its provisions did not apply to St. Louis county. In the Vastine case the court was considering a law which provided for the election of a public administrator in several counties therein named (one of which was St. Louis county), at each general election. There was no repugnancy between the law there construed and the law of the General Statutes, which it was contended had operated as a repeal of that previous act of the Legislature under which Vastine had been elected.

The probate judge wished to appoint a public administrator, notwithstanding Vastine's election by the people. The Supreme Court gave sanction rather to the election than to such appointment. But in the Pearcy case--a case wherein a system of uniformity had been established by the later enactment--the court held that the facts of the Vastine case did not apply. Those facts are still less applicable in the treasurer's case. Here, in order to maintain the assertion that the new constitution and the act of March, 1866 (Sess. Acts 1866, ch. 38, § 1), do not apply to St. Louis county, it is necessary to maintain the theory that the law of 1857 is still in force, and that it excludes the operation of the general law in this county.

But if the special act of 1857 is to be held as still in force, it is not only at war with the clause of the new constitution forbidding elections on Monday, but its enforcement would require additional legislation after the adoption of the new constitution, since it is inimical to the whole scope, theory, and intention of that instrument. The aim of that constitution is to do away with the expense and trouble of special elections, the expense and embarrassments of special legislation, and the expense of sophistical constructions of statutes by the courts. (See art. IV, § 27.)

Under the last clause the general assembly proceeded to remodel the laws concerning the election of county treasurer in the several counties of the State (St. Louis not excepted), and they made and passed and approved a general law covering the case.

Section 2 of article II of this constitution put an end to the special law of 1857, under which Risley was elected. After this, that law could not possibly be in force unless revived by subsequent legislation. It may be claimed that the act approved March 19, 1866, relative to the time of holding county, town and city elections, did revive the operation of the special law of 1857. But this could not reconcile the act of 1857 with that other feature of antagonism in the new constitution concerning special legislation.

It is clear that if the original enactment of a law would militate against the constitution in existence at the date of its enactment, such a law would be unconstitutional and inoperative. It is equally clear that an act intended to revive an obsolete statute can not be operative, if at the time of its supposed revival the original act itself would be repugnant to the constitution in force at the time of the supposed revival.

Now the new constitution took effect July 4, 1865. The act which it is claimed revived the act of 1857 took effect from and after March 19, 1866; consequently, since the original act of 1857 would have been unconstitutional and void if originally enacted on the 19th of March, 1866, its assumed revival would have been unconstitutional and inoperative. But there is nothing in the act of March, 1866, showing that the general assembly had in mind the act of 1857, concerning the treasurer of St. Louis, or that they intended to revive it.

If no day is now fixed by law for the election of county treasurer, it is to be fairly presumed that there is none to be held at all, and Fiala is to hold his office for life, and then the County Court must give it again for life, or during good behavior, to some other friend of theirs. This court has said that no such intention on the part of law-makers will be presumed. (State, etc., v. Pearcy, 44 Mo. 159; id. 162.)

There are grave and extraordinary reasons for bringing the cause directly before this honorable court. It is a small matter whether Mathias be treasurer of St. Louis county, but it is no small matter if there be no law for electing any treasurer whatsoever for the richest county, and that which pays the largest revenue, in the State. It is a matter of vast and urgent importance to the tax-payers of St. Louis county that the credit and regularity of its financial department be maintained, and that a final and summary conclusion and determination be reached with regard to the lawful custody of its treasure.

Even admitting, for the sake of argument, that there was a vacancy, had the County Court legal power to appoint? If the theory of respondent be true, that the general law as to county treasurers is inapplicable to St. Louis county, then they can not derive the power from that law. If they claim the power by anything in the special law of 1857, they have no such power under that law.H. A. Clover and R. E. Rombauer, for respondent.

The election under which Mathias claims title was a mere volunteer election, and, being such, could give no title to the office to Mathias (State ex rel. McHenry v. Jenkins, 43 Mo. 265; State v. Robinson, 1 Kans. 17), and the County Court could declare a vacancy, which it lawfully might fill by appointment (Wagn. Stat. 410, § 4), and the respondent's title holding under such appointment is good. The office of county treasurer of St. Louis county, as the same now exists, is created and regulated by the act of 1857, according to the provisions of which it was to be filled by an election to be held on the first Monday in August every six years, after the first Monday in August, 1858. That act has never been repealed. It has not been repealed by section 2, article II, of the constitution, because that section provides in its first part for general elections only, and the election provided for by the act of 1857 is a local and special election. It has not been repealed by the last clause of that section, which provides that “no special election, State, county or municipal, shall be appointed to be held on Monday,” because that clause is purely prospective in its operation. (Sedgw. Stat. and Const. Law, 490; Cass v. Dillon, 2 Ohio, 607.) The Legislature, therefore, might lawfully, as it did, by act approved March 19, 1866, and after the new constitution went into effect, provide that “all county, town and city elections, required by former or existing laws to be holden on Monday, shall hereafter be holden on Tuesday next succeeding the Monday specified in said laws as the day for holding said elections.” (Sess. Acts 1865-6, p. 88.) Nor has the act of 1857, as amended by the act of 1866, been repealed by the first section of chapter 38 of General Statutes, which provides for biennial elections of county treasurers on the Tuesday after the first Monday in November; because, according to section 5 of chapter 224 of the General Statutes, it is a mere continuation of the former general law on the subject of county treasurers, and, according to section 6 of the same chapter, does not repeal any act local in its character, and especially applicable to any particular county, as the act of 1857 clearly is. Nor is it repealed by “an act to amend section 1 of chapter 38 of the General Statutes of 1865 concerning county treasurers,” approved March 22, 1870. That act, by its title as well as by its context, claims to be amendatory of the general law of 1865 only. It is so merely in one particular, by omitting the proviso that no person shall be elected to said office of treasurer more than two successive terms. The first section of the act of 1870 may be considered as substituted in place of the first section of the act of 1865, and that is all that the amendment and the...