State ex rel. Faxon v. Owsley

• Decision Date: 14 May 1894
• Citation: 26 S.W. 659,122 Mo. 68
• Parties: The State ex rel. Faxon et al., v. Owsley
• Court: Missouri Supreme Court

26 S.W. 659

122 Mo. 68

The State ex rel. Faxon et al., v. Owsley

Supreme Court of Missouri, First Division

May 14, 1894

Writ denied.

R. H Field for relators.

Section 1011, Revised Statutes, 1889, providing that all the costs and expenses of registration, election and of the office of recorder of voters shall be paid, one-half out of the city treasury and one-half out of the county treasury, is in violation of sections 1, 3, 8, 9 and 10 of article 10 of the state constitution of 1875. By sections 1 and 10 of the constitution, one mode is created for the exercise of the taxing power for state purposes, and another for the exercise of the same power by and for counties, cities and towns. By section 1 the taxing power for state purposes must be exercised by the general assembly, and it can not delegate such power to the municipal subdivisions of the state. Waterhouse v. Schools, 9 Bax. 398; Bolt v Riordan, 73 Mich. 520; State v. Halleck, 14 Nev. 202; Livingston Co. v. Weider, 64 Ill. 427. The imposition of a debt upon a city or county by the legislature is the same thing as imposing a tax. The limitations of the taxing power contained in our constitution are taken almost literally from the constitution of Illinois, and the decisions of that state construing such limitations before we adopted them ought to be of controlling force. Skrainka v. Allen, 76 Mo. 384. It has been repeatedly held by the supreme court of Illinois that imposing a debt upon a municipal subdivision of the state is equivalent to imposing a tax against it, and is violative of the limitations on taxation above named. Lovingstone v. Wider, 53 Ill 302; Livingston Co. v. Weider, 64 Ill. 427; Sleight v. People, 74 Ill. 47; Williams v Roberts, 88 Ill. 22; Gadis v. Richmond Co., 92 Ill. 119; Hinze v. People, 92 Ill. 406; Cornell v. People, 107 Ill. 372. It can not be maintained with any degree of fairness to the constitution that the office of recorder of voters is a state office and that the costs and expenses thereof imposed against Kansas City and Jackson county is a state tax and valid as such. Secs. 3 and 9 of Const. How can the cost and expense of the office in question be fairly deemed as intended a state tax and a state expense as for one of the state's officers when he is to be paid not out of the state treasury? If a state officer, and is to be paid by the state, he belongs on what is designated in the constitution as "the civil list." All state revenue must be paid into the state treasury. There would have to be a statute requiring the costs and expenses of the office in question (if it were state revenue) to be paid by the county and city treasuries into the state treasury instead of directly to the defendant, and the defendant, as such a state officer, would have to be paid only upon and after a regular appropriation by the legislature; in other words, he would come in the legislative appropriation for the fifth class "for the payment of the civil list" by the state treasurer, as all other state officers. Article 4, sec. 43, Constitution. I submit that I have shown that the cost and expense of the office in question, and the office itself as created, are interdependent; that the one would not have been created without the other, and such cost and expense as required of Jackson county and Kansas City being unconstitutional, the office itself also, as to both the city and county, falls. Hinze v. The People, 92 Ill. 407.

Trimble & Braley for respondent.

The office in question is a state office. The constitution commands the general assembly to enact a statute providing for the registration of voters in such cities. The general assembly, in obedience to that mandate, did pass the statute in question. The governor appoints the officer with the advice and consent of the senate. His duties are to perform functions which the state constitution and the state statute prescribe for state purposes. He is, therefore, a state officer. Ewing v. Hoblitzelle, 85 Mo. 64-77. If the office be a state office, created for state purposes, then the requirement that that the city should pay the officer's salary is the imposition of a debt for state purposes and not for city purposes; hence is not hostile to the said section 10, article 10, of the state constitution. State ex rel. Aull v. Field, 119 Mo. 593, together with authorities cited.

Brace, J. Barclay, J., concurs in the result.

OPINION

Brace

Quo Warranto.

Brace, J. -- This is a proceeding by the state through the attorney general by way of information in the nature of a quo warranto, to oust the respondent from the office of recorder of voters of Kansas City, on the ground that the statute under which he was appointed to said office, and by virtue of which he is exercising its functions, is unconstitutional.

Kansas City is a city of more than one hundred thousand inhabitants. The constitution provides that "The general assembly shall provide, by law, for the registration of all voters in cities and counties having a population of more than one hundred thousand inhabitants, and may provide for such registration in cities having a population exceeding twenty-five thousand inhabitants and not exceeding one hundred thousand but not otherwise." Art. 8, sec. 5. In pursuance of this constitutional provision an act of the legislature was passed, approved March 31, 1883, providing for the registration of voters in, and for the appointment by the governor of a recorder of voters for, such cities. Sess. Acts, 1883, p. 38. This act was revised and amended in 1889. R. S., secs. 987 to 1013, inclusive.

The original act provided that "All the costs and expenses of registration and of the office of recorder of voters required by this act in any such cities shall be paid out of the city treasury of such city." Sec. 25. In the revision, this act was put in chapter 30 of the Revised Statutes entitled "Cities, Town and Villages," and in article 2 of that chapter, entitled "Cities of the First Class," introduced by a new section, providing that "In all cities of the first class and all cities whose population entitles them to become cities of the first class, there shall be a registration of all the qualified voters, and the registration of the voters and the conduct of the elections held in such cities shall be governed by the following provisions, subject to the general law concerning elections." R. S. 1889, sec. 987.

And section 25 of the original act was so amended as to read as follows: "All the costs and expenses of registration and election, and of the office of recorder of voters, required by this article in any such cities, shall be paid one-half out of the city treasury and one-half out of the county treasury, except in cities not within a county, in which cities all shall be paid out of the city treasury * * *." R. S. 1889, sec. 1011.

By virtue of an election held on the ninth of April, 1889, under the provisions of section 16, article 9, of the constitution, on the ninth of May thereafter the city of Kansas framed a charter for its own government "in harmony with, and subject to, the constitution and laws of the state;" and is subject to the provisions of said act of 1883, amended as aforesaid, and the respondent is exercising the functions of the office of recorder of voters under said statute by virtue of the appointment of the governor by and with the advice and consent of the senate as therein provided.

The act of 1883, soon after its passage, came before this court for consideration in the case of Ewing v. Hoblitzelle, 85 Mo. 64, in which its constitutionality was brought in question, and in which its constitutionality was sustained in the following terms: "The act in question, as we have seen, provides for the registration of voters in cities having more than one hundred thousand inhabitants, and the power to pass such a law is not only directly conferred by section 5, article 8, of the constitution, but the general assembly is expressly required and commanded to pass such a law; and in exercising the power thus conferred, and the duty thus enjoined, the legislature might, as it did, incorporate in the law such provisions as to make its exercise effectual for the purpose intended to be accomplished; and as such registration could not be accomplished without the designation of some officer upon whom the duty of making it is imposed, the power of the legislature to create the office, designate the officer, prescribe his duties, and provide for his appointment or election is necessarily implied from and included in the power expressly conferred to provide such registration. The legislature, being thus empowered, had the right to include in the act for the registration of voters any subject naturally or necessarily connected with it or flowing from it as incident thereto."

In view of the ruling in that case and in the subsequent one of State ex rel. v. Dolan, 93 Mo. 467, 6 S.W 366, and the fact that registration under this act was in force and its provisions conformed to at all elections held in Kansas City for years prior to, and at, the time its citizens framed the charter of 1889, in which they embodied a compliance with its requirements as a necessary qualification for all voters at elections therein held (Charter, art. 1, sec. 8; art. 17, secs. 27, 39; art. 17, sec. 141) we deem it unnecessary to review the argument of counsel, questioning the power of the...