State ex rel. Bothwell v. Green

• Decision Date: 21 April 1944
• Docket Number: 39077
• Citation: 180 S.W.2d 12,352 Mo. 801
• Parties: State of Missouri ex rel. Cloyd Ross Bothwell, Relator, v. J.H. Green, Clerk of the County Court of Pettis County, Missouri
• Court: Missouri Supreme Court

180 S.W.2d 12

352 Mo. 801

State of Missouri ex rel. Cloyd Ross Bothwell, Relator, v. J.H. Green, Clerk of the County Court of Pettis County, Missouri

No. 39077

Supreme Court of Missouri

April 21, 1944

Peremptory writ issued.

F. M Ross and Frank W. Hayes for relator.

(1) The Supreme Court of Missouri has original jurisdiction in mandamus to compel the respondent to accept the relator's declaration of candidacy for a county office and to require respondent to place relator's name upon the ballot. Art 6, Sec. 3, Const. of Mo.; State ex rel. Bowland v Cloud, 212 Mo. 481; State ex rel. Borman v. Offutt, 9 S.W.2d 595; State ex rel. Haliburton v. Roach, 230 Mo. 408; State ex rel. Husse v. Hayden, 163 S.W.2d 946; State ex rel. Nolan v. Nelson, 275 S.W. 927; State ex rel. Scott v. Dircks, 211 Mo. 568; State ex rel. Scott v. Hayden, 163 S.W.2d 946; State ex rel. St. Louis Pub. Schools v. Tracy, 94 Mo. 217, 6 S.W. 709. (2) The office of the collector of revenue of Pettis County, Missouri, is of statutory and not constitutional origin and was created by authority of Section 14, Article IX, of the Constitution of Missouri. Art. 9, Sec. 14, Const. of Mo.; Sec. 11055, R.S. 1939; State ex inf. Hadley v. Herring, 208 Mo. 708. (3) Section 11055, R.S. 1939, creating the county office of collector of revenue under authority of Section 14, Article 9, of the Constitution of Missouri does not apply to the filling of vacancies occurring in such office. State ex inf. Hadley v. Herring, 208 Mo. 708; State ex inf. Barker v. Koeln, 192 S.W. 748. (4) The filling of vacancies in the office of collector of revenue of Pettis County, Missouri, and the time of electing a successor of such appointee is controlled by Section 11509, R.S. 1939. Sec. 11509, R.S. 1939; Sec. 3896, R.S. 1909; State ex inf. Major v. Amick, 247 Mo. 271; State ex inf. Barker v. Koeln, 192 S.W. 748; State ex inf. Barrett v. McClure, 253 S.W. 743; State ex inf. Hadley v. Herring, 208 Mo. 708. (5) The "first ensuing general election" as used in Sec. 11509, R.S. 1939, means the first general election in point of time held after the appointment by the Governor and not the next regular election held every four years, at which county collectors over the State are elected for regular terms. Sec. 11509, R.S. 1939; In re Advisory Opinion of the Governor, 62 So. 363; State ex rel. Barrett v. McClure, 299 Mo. 688, 253 S.W. 743; In re Executive Communication, 5 So. 613, 25 Fla. 426; State ex rel. Harsha v. Troxel, 125 Ohio St. 235, 181 N.E. 16; State ex inf. v. McClure, 253 S.W. 743; State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 P. 94; State ex rel. Attorney General v. Neibling, 6 Ohio St. 40; State ex rel. Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809; McCreary v. Williams, 153 Ky. 49, 154 S.W. 417; State ex rel. Smallwood v. Windom, 131 Minn. 401, 155 N.E. 629. (6) Hazel Palmer was appointed to fill a vacancy in the unexpired second term of J. B. Greer and the Governor could not, under Section 11509, appoint her as collector of revenue of Pettis County, Missouri, for a term beyond March 1, 1945. Sec. 11509, R.S. 1939; State ex inf. v. Amick, 247 Mo. 271. (7) If, under the appointment by the Governor, the said Hazel Palmer's term of office extends from December 30, 1942, until March 1, 1947, as contended by respondent, such appointment is in violation of Section 14, Article IX, of the Constitution of Missouri. Sec. 14, Art. IX, Mo. Constitution; Sec. 11509, R.S. 1939; State ex inf. v. Herring, 208 Mo. 708. (8) The fact that the term of the said Hazel Palmer's appointment permits her to hold over beyond the end of the unexpired term in which she was appointed and into the ensuing term until March 1, 1945, does not prevent the election of her successor for the unexpired portion of the term beginning March 1, 1945, and ending March 1, 1947. Sec. 11509, R.S. 1939. (9) The case involved here should not be confused with the situation where a successor to an incumbent in office is elected and dies before he (the successor) qualified. In that case, the incumbent holds over until the next regular election for filling that office. Sec. 11509, R.S. 1939. (10) The only situation under which the said Hazel Palmer could hold this office until March 1, 1947, would be, if her successor who is elected at the November general election, 1944, would die before he qualified for that office. Sec. 11509, R.S. 1939; Art. V, Sec. 11, Art. XIV, Sec. 5, Mo. Constitution. (11) The following authority cited by the respondent in his suggestions heretofore filed are not in point and are distinguished. State ex inf. v. Dabbs, 182 Mo. 359; State ex inf. Hulen v. Brown and Barnett, 274 S.W. 965; State ex inf. Hadley v. Herring, 208 Mo. 708; State ex rel. Circuit Attorney v. McCann, 81 Mo. 479; State ex rel. McKittrick v. Wilson, 350 Mo. 486, 166 S.W.2d 499; State ex rel. Atty. Gen. v. Ranson, 73 Mo. 78; State ex inf. v. Seay, 64 Mo. 89; State ex inf. v. Schweitzer, 258 S.W. 435; State ex inf. v. Smith, 152 Mo. 512.

Hazel Palmer for respondent.

(1) When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law, and pursuant thereto Miss Hazel Palmer was appointed collector of the revenue, and under the law is entitled to continue in office until the first Monday in March, 1947. Art. V, Sec. 11, Art. XIV, Sec. 5, Mo. Constitution; Sec. 11055, R.S. 1939; State ex inf. v. Smith, 152 Mo. 512; State ex inf. Atty. Gen. v. Dabbs, 182 Mo. 359. (2) The successor to Mr. J. B. Greer was an incumbent of the office at the beginning of the new term on March 1, 1943, and the fact such successor was an appointee-incumbent and not an elective-incumbent would not alter the admission made by relator in Point IX of his brief, that "the incumbent holds over until the next regular election for filling that office". State ex inf. McKittrick, Atty. Gen. v. Wilson, 350 Mo. 486; State ex rel. v. Brown and Barnett, 220 Mo.App. 468; State ex rel. Circuit Atty. v. McCann, 81 Mo. 479. (3) Of equal import to relator's Point IX is the admission made by relator in Point X of his brief, that the present incumbent could hold office until the end of this term, were her successor to be elected in November, 1944, and die before qualifying for the office, and such admission tends to confirm respondent's contention that as an incumbent on March 1, 1943, the beginning of the new term, Miss Hazel Palmer would continue in office until the first Monday in March following the next regular election for that office in November, 1946. Sec. 11, Art. V, Sec. 5, Art. XIV, Mo. Constitution; State ex rel. Evrard v. Roach, 269 Mo. 500; State ex inf. McKittrick v. Wilson, 350 Mo. 486; State ex rel. Circuit Attorney v. McCann, 81 Mo. 479; State ex rel. v. Brown and Barnett, 220 Mo.App. 468. (4) There is no vacancy in the term of office which began on March 1, 1943, and no election can be held for the office of collector of the revenue until the regular election for that office in November, 1946, and any election held in November, 1944 for said office would be illegal and void. State ex rel. McHenry v. Jenkins, 43 Mo. 261; State ex inf. Crow v. Smith, 152 Mo. 512; State ex rel. Tredway v. Lusk, 18 Mo. 333; Commonwealth v. Hanly, 9 Pa. 513; Townley v. Hartsfield, 168 S.W. 140, 113 Ark. 253; State ex inf. Atty. Gen. v. Dabbs, 182 Mo. 359; State ex inf. Hadley v. Herring, 208 Mo. 708; Ballantyne v. Bower, 99 P. 869, 17 Wyo. 356; 22 R.C.L., sec. 95, pp. 437, 438, 441; Ann. Cases 1916C, 643; 17 Ann. Cases 82; State ex rel. Atty. Gen. v. Ranson, 73 Mo. 78; State ex rel. Circuit Attorney v. McCann, 81 Mo. 479; State ex rel. v. Brown and Barnett, 220 Mo.App. 468; State ex inf. McKittrick v. Wilson, 350 Mo. 486; 74 A.L.R. 486; State ex rel. v. Seay, 64 Mo. 89. (5) The holding over of the present incumbent to the end of this term of office would not violate Section 14, Article 9, Constitution of Missouri. State ex rel. Atty. Gen. v. Ranson, 73 Mo. 78; State ex rel. Tredway v. Lusk, 18 Mo. 333; Commonwealth v. Hanly, 9 Pa. 513. (6) The respondent properly refused to accept and file relator's declaration as a candidate for the office of collector of the revenue for the August, 1944 primary election, and a county clerk who properly refuses to file nominations can not be compelled by mandamus. State ex rel. v. Crittenden, 164 Mo. 237; State ex rel. Thompson v. Wheaton, 138 N.E. 820; Jennings v. Board of Election Com'rs, 100 N.W. 995; Nelson v. King, 109 N.W. 649; Murtha v. Lindsay, 153 N.W. 245; State ex rel. Runge v. Anderson, 76 N.W. 482; State ex rel. Smith v. Lloyd, 112 N.E. 141; State ex rel. v. McIntosh, 205 Mo. 589; State ex rel. v. Stone, 269 Mo. 342. (7) The following authorities cited by the relator are not in point with the facts in the case at issue and are here distinguished. State ex inf. Barker v. Koeln, 270 Mo. 174, 192 S.W. 748; State ex inf. Major v. Amick, 247 Mo. 271; State ex inf. Barrett v. McClure, 253 S.W. 743; State ex rel. Sullivan v. Moore, 64 P.2d 809; State ex rel. McGowan v. Sedgwick, 127 P. 94; State ex rel. Smallwood v. Windom, 155 N.W. 629; State ex rel. Harsha v. Troxel, 181 N.E. 16; State ex rel. Bowland v. Cloud, 212 Mo. 481; State ex rel. Borman v. Offutt, 9 S.W.2d 595; State ex rel. Haliburton v. Roach, 230 Mo. 408; State ex rel. Nolan v. Nelson, 275 S.W. 927; State ex rel. Scott v. Dircks, 211 Mo. 568; State ex rel. Husse v. Hayden, 163 S.W.2d 946; State ex rel. Scott v. Hayden, 163 S.W.2d 946; State ex rel. St. Louis Pub. Schools v. Tracy, 94 Mo. 217; McCreary v. Williams, 153 Ky. 49, 154 S.W. 417, 6 S.W. 709.

OPINION

Douglas, C.J.

This is an original proceeding in...