State ex rel. City of Kirkwood v. Smith

• Decision Date: 15 March 1948
• Docket Number: 40764
• Citation: 210 S.W.2d 46,357 Mo. 518
• Parties: State of Missouri, at the Relation of City of Kirkwood, a Municipal Corporation, Relator, v. Forrest Smith, State Auditor of the State of Missouri
• Court: Missouri Supreme Court

210 S.W.2d 46

357 Mo. 518

State of Missouri, at the Relation of City of Kirkwood, a Municipal Corporation, Relator, v. Forrest Smith, State Auditor of the State of Missouri

No. 40764

Supreme Court of Missouri

March 15, 1948

Original Proceeding in Mandamus.

PEREMPTORY WRIT ISSUED.

Peremptory writ issued.

John Torrey Berger for relator; Lewis, Rice, Tucker Allen & Chubb, Charles & Trauernicht and Alva C Trueblood of counsel.

(1) The Voter Registration Act applicable to St. Louis County applies only to the registration of voters and to the conduct of elections of a county-wide nature, and, to a limited extent, to registration only in cities of more than 10,000 inhabitants. Art. 18, Chap. 76, R.S. 1939. (2) The Voter Registration Act applicable to St. Louis County was enacted pursuant to the mandate of the State Constitution of 1875. Art. 18, Chap. 76, R.S. 1939; Art. VIII, Sec. 5, Constitution of Missouri 1875. (3) The application of the voter registration provision of the Act to cities under 10,000 inhabitants and to other political subdivisions would have violated the Constitution of 1875. Art. VIII, Sec. 5, Constitution of Missouri, 1875. (4) The Constitution of Missouri, 1875, required the General Assembly to provide by law for the registration of voters in counties having a population of more than 100,000 and in cities having a population of more than 10,000, but not otherwise. Art. VII, Sec. 5, Constitution of Missouri, 1875. (6) The Constitution was mandatory where registration was to be required but prohibited registration for all elections to be held in counties of less than 100,000, in cities of less than 10,000, in school districts, and in all other municipal corporations or political subdivisions. Art. VIII, Sec. 5, Constitution of Missouri, 1875. (7) The General Assembly consistently followed the mandate of the Constitution of 1875 and just as consistently respected the prohibition. The Constitution of 1945, as it respects the registration of voters, is not self-enforcing. Constitution of Missouri 1945, Art. VIII, Sec. 5; State ex rel. Miller v. O'Malley, 342 Mo. 646, 117 S.W.2d 319. (8) No new legislation relating to the registration of voters in St. Louis County has been enacted since the adoption of the 1945 Constitution. Art. 18, Chap. 76, R.S. 1939. (9) An unconstitutional statute is not rendered constitutional by the adoption of a new Constitution, unless it is specifically so provided. 12 C.J., p. 727, sec. 99; 16 C.J.S., p. 96, sec. 45; State ex rel. Miller v. O'Malley, 342 Mo. 646, 117 S.W.2d 319. (10) The terms of the Act restrict the provisions regarding the conduct of elections by the Board of Election Commissioners to those elections where registration is required, and to those elections only. Secs. 11889, 11916, R.S. 1939. (11) Section 11917 of the Act dealing with elections in cities of 10,000 or more expressly limits the applicability of the Act to such elections to the provisions thereof dealing with permanent registration, new registration, transfers of registration, suspension and cancellation of registration, canvass and revisions of the registry. Its terms are inconsistent with the conduct of elections in such cities by the Board of Election Commissioners. (12) An act of the General Assembly will be construed, where possible, so as to bring it within the provisions of the Constitution in effect when it was enacted, and not in violation thereof. (13) Provisions for the conduct of elections insofar as such conduct is predicated upon a registration of voters should be construed in the light of the then existing constitutional provision as to registration of voters. (14) Section 11888 defines the applicability of the Act; it provides that "the conduct of elections, including primary elections, held in such counties (i.e., counties of 200,000 to 400,000) shall be governed by the provisions of this article." (15) Section 11928 is the grant of power to the Election Commissioners to conduct elections. It authorizes the Election Commissioners to "make provisions for all elections, general, special, primary or local, of the state and county at any time held, . . ." Only state and county elections are mentioned. Elections of municipalities and other political subdivisions are outside the terms of the section. (16) The only specific provisions of the Act relating to cities of more than 10,000 inhabitants (Section 11917, R.S. Mo. 1939) was inserted in the Act in compliance with the mandatory provision of Article VIII, Section 5, of the Constitution of 1875 with respect to the registration of voters in such cities. This provision of the Act is essentially one dealing with registration of voters. (17) Where general provisions of a statute are inconsistent with a more specific provision, the specific provision should be regarded as an exception to the general provision. 59 C.J., p. 1000; State ex rel. v. Reynolds, 229 S.W. 1057. (18) The provisions of Section 11917, being special as to elections in cities of 10,000 or more, will take precedence over the general provisions of the law. 59 C.J., p. 1051; State ex rel. Buchanan County v. Fulks, 296 Mo. l.c. 625; Tevis v. Foley, 30 S.W. l.c. 69; State ex rel. City of Springfield v. Smith, 125 S.W.2d l.c. 885. (19) Statutory laws in effect for many years, prescribing the manner of conducting municipal elections, should not be held to be repealed by implication but only by unequivocal language. 59 C.J., p. 1051; State ex rel. Buchanan County v. Fulks, 296 Mo. l.c. 625; Tevis v. Foley, 30 S.W. l.c. 69; 59 C.J., p. 935. (20) The 1939 amendment to the 1935 Voter Registration Law did not enlarge its scope. The elimination of restrictions is not the equivalent of the enactment of affirmative requirements. Laws 1939, p. 398, sec. 8; Laws 1935, p. 232, sec. 8. (21) Bond elections in cities of the third class and having a population of 10,000 are authorized by Section 7369, Laws of Missouri 1945, p. 1301. This section is the authority for the holding of a bond election in any Missouri city or village. Sec. 7369, Laws 1945, p. 1301; 59 C.J., p. 935, sec. 540. (22) This section is a special provision dealing with bond elections and bond elections only. It prevails over any general law. 59 C.J., p. 935, sec. 540. (23) The section provides that judges and clerks shall be appointed as in the case of other elections in such municipalities. Sec. 7369, Laws 1945, p. 1301. (24) This section particularly provides that the "council, board of aldermen or trustees, as the case may be, shall order an election to be held of which they shall give notice signed by the City Clerk." Sec. 7369, Laws 1945, p. 1301. (25) Section 7371, R.S. 1939 (a part of the Act dealing with bond elections) provides "upon the result of such election being certified by the judges and clerks thereof to the council, board of aldermen or trustees, as the case may be, . . . the council, board of aldermen or trustees, as the case may be, may, by ordinance or resolution, declare the result of such election and cause bonds of such municipality to be issued, . . ." Sec. 7371, R.S. 1939. (26) The giving of notice by the Board of Election Commissioners, the certification of the returns of the election to the Board of Election Commissioners and the declaration of the result of the election by the Board of Election Commissioners would be in direct conflict with the provisions of these sections. Sec. 7369, Laws 1945, p. 1301; Sec. 7371, R.S. 1939. (27) Administrative interpretation of the Act throughout the years should be given great weight, particularly when to do otherwise would cast a cloud upon all municipal elections held in St. Louis County since 1935 and prior thereto. 59 C.J., sec. 609; Huntsville Trust Co. v. Noel, 320 Mo. 749, 12 S.W.2d l.c. 754.

J. E. Taylor, Attorney General, Tyre W. Burton and David Donnelly, Assistant Attorneys General, for respondent.

(1) Article 18, providing for elections in all cities in counties to which it is applicable, is constitutional. Art. 18, Chap 76, R.S. 1939; Art. VIII, Sec. 5, 1945 Mo. Constitution. (2) The bond election in Kirkwood should have been held in accordance with Article 18. Art. 18, Chap. 76, R.S. 1939; State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883; State ex rel. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153; Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683; State v. American Ins. Co., 200 S.W.2d 1; State ex rel. Armontrout v. Smith, 353 Mo. 486, 182 S.W.2d 571; Collins v. Twellman, 344 Mo. 330, 126 S.W.2d 231; State ex rel. Case v. Wilson, 151 Mo.App. 723, 132 S.W. 625; Reed v. Goldneck, 112 Mo.App. 310, 86 S.W. 1104; Sikes v. St. Louis & S.F. Railroad Co., 127 Mo.App. 326, 105 S.W. 700. (3) The 1939 amendment. Sec. 11895, Art. 18, Chap. 76, R.S. 1939; State ex rel. K.C. Power & Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195; State ex inf. Conkling v. Sweaney, 270 Mo. 685, 195 S.W. 714; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110; State ex rel. American Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31; Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Graves v. Little Tarkio Drain. District, 345 Mo. 557, 134 S.W.2d 70; State ex rel. Dean v. Daues, 14 S.W.2d 990; 59 C.J., sec. 493, F. 1, p. 894; United States v. Sischo, 262 U.S. 165; McDonald v. Hovey, 110 U.S. 619. (4) Municipal election laws were superseded, in part, by Article 18. Art. 18, Chap. 76, R.S. 1939. (5) The bond election in Kirkwood not held in conformity to law. Art. 18, Chap. 76, R.S. 1939; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110; State ex rel. American Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31. (6) Administrative construction. Art. 18, Chap. 76, R.S. 1939; In...