State ex rel. Gragg v. Barrett

• Decision Date: 05 June 1944
• Docket Number: 39125
• Parties: State of Missouri at the Relation of J. Edward Gragg, Relator, v. Honorable Jesse W. Barrett, Honorable William J. Blesse, Honorable A. Sidney Johnston and Honorable Alphonse G. Eberle, as Members and constituting the Board of Election Comsioners of the City of St. Louis, and Honorable Joseph Gallagher, City Register of the City of St. Louis
• Court: Missouri Supreme Court

180 S.W.2d 730

352 Mo. 1076

State of Missouri at the Relation of J. Edward Gragg, Relator, v. Honorable Jesse W. Barrett, Honorable William J. Blesse, Honorable A. Sidney Johnston and Honorable Alphonse G. Eberle, as Members and constituting the Board of Election Comsioners of the City of St. Louis, and Honorable Joseph Gallagher, City Register of the City of St. Louis

No. 39125

Supreme Court of Missouri

June 5, 1944

Writ denied.

William R. Schneider for relator.

(1) The Supreme Court of Missouri has taken jurisdiction and issued its writ of mandamus for precisely the purpose the issuance of the writ is asked in the case at bar. State ex rel Huse v. Hayden, 349 Mo. 982, 162 S.W.2d 946. (2) Under the facts the relator's constitutional rights have been violated. Constitution of Missouri, Art. II, Sec. 9. (3) There are two distinct types of constitutional, statutory and charter provisions relative to the succession of the incumbent of a lower office to the duties and emoluments of a higher office in the event of vacancy in the latter. The type whereby the duties and emoluments of the higher office devolve additionally upon the incumbent of the lower office in which event no vacancy occurs in the latter. Futrell v. Oldham, 107 Ark. 385, 155 S.W. 502; People ex rel. Lynch v. Budd, 114 Cal. 168, 45 P. 1060, 34 L.R.A 46; Clifford v. Hiller, 42 A. 155; State v Sadler, 23 Nev. 356 47 P. 450; State ex rel. Martin v. Ekern, 280 N.W. 393. The type wherein a state constitutional prohibition exists against holding two offices, as in Missouri, and where qualifying for a second or higher office necessarily operates as a vacation of the other or lower office, "leaving no shadow of title in its former possessor," such is the case at bar. Art. IX, Sec. 18, Mo. Constitution; State ex rel. Walker v. Buss, 135 Mo. 325, 36 S.W. 636; State ex rel. Biggs v. Corley, 172 A. 415; Bishop v. State, 149 Ind. 223, 48 N.E. 1038, 39 L.R.A. 278, 63 Am. St. Rep. 270; State v. Mason, 61 Ohio St. 513, 56 N.E. 468; Shell v. Cousins, 77 Va. 328. (4) What constitutes a vacancy and how it is filled. State v. Blackmore, 104 Mo. 340, 15 S.W. 960; People v. Osborn, 7 Colo. 605, 4 P. 1070; Charter, City of St. Louis, Art. IV, Sec. 5, Art. VII, Sec. 5. (5) Office of mayor and office of president of board of aldermen are incompatible. 86 Amed. St. Rep. 580-1-4; Atty. Gen. ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450; People ex rel. Bagshaw v. Thompson, 130 P.2d 237; Perkins v. Manning, 122 P.2d 857. (6) Acceptance of second office incompatible with the first vacates the first. 100 A.L.R. 1164, note citing cases from most American jurisdictions. (7) The public has a right to know which office is held and which surrendered. Stubbs v. Lee, 64 Mo. 195; State ex rel. Kingsbury v. Brinkerhof, 66 Tex. 45, 17 S.W. 109; 86 Am. St. Rep. 579. (8) It is against public policy for one to hold or to hold an interest in two offices at the same time. State ex rel. Walker v. Buss, 135 Mo. 324, 36 S.W. 636; State ex rel. Owens v. Draper, 45 Mo. 355; Dust v. Oakman, 126 Mich. 717, 86 N.W. 151; Dickson v. The People ex rel. Brown, 17 Ill. 191; Bishop v. State ex rel. Griner, 149 Ind. 223, 48 N.E. 1038. (9) The foregoing principles should not be confused with cases involving absence from office on war service under the Selective Service Act. State ex inf. McKittrick v. Wilson, 166 S.W.2d 499; State ex rel. McGaughey v. Grayston, 399 Mo. 701, 163 S.W.2d 335; Baker v. Dixon, 295 Ky. 279, 174 S.W.2d 410; State ex rel. Thomas v. Wysong, 24 S.E.2d 463; Kebylarz v. Mercer, 130 N.J.L. 44, 31 A.2d 208; Contra: Perkins v. Manning, 122 P.2d 857; Frazier v. Elmore, 173 S.W.2d 563; Cramer v. Sheppard, 167 S.W.2d 147.

Joseph F. Holland, City Counselor, H. A. Hamilton, George L. Stemmler and Charles J. Dolan, Associate City Counselors, for respondents.

(1) On the first Tuesday of April, 1943, the voters of the City of St. Louis elected a president of the board of aldermen to serve for a term of four years, the term ending on the first Tuesday in April, 1947. Charter, City of St. Louis, Art. II, Secs. 1, 3. (2) No authority is conferred upon the election commissioners of the City of St. Louis either by the Statutes of Missouri or by the Charter of the City of St. Louis to conduct an election for an office before the expiration of the term to which the incumbent de jure has been elected. In the absence of statutory or charter provision therefor, no election can be held. State ex rel. Lamey v. Mitchell, 34 P.2d 369; State ex rel. Murphy v. McBride, 70 P. 25; State ex rel. Lynch v. Budd, 34 L.R.A. 46. (3) The president of the board of aldermen did not forfeit his office when he became mayor of the City of St. Louis. Re Crump, 135 P. 428, 47 L.R.A. (N.S.) 1036. (4) The charter provides that the president of the board of aldermen shall forfeit his office for the causes provided with regard to the mayor. These causes are crime or misdemeanor in office, grave misconduct showing unfitness for public duty and permanent disability. These are the only grounds of forfeiture of said office mentioned in the charter. Charter, City of St. Louis, Art. IV, Sec. 3, Art. VII, Sec. 4. (5) The president of the board of aldermen becomes mayor, on the occurrence of a vacancy, by virtue of his official capacity as president of the board of aldermen. If he had ceased to be president of the board of aldermen he could not have become mayor. Charter, City of St. Louis, Art. VII, Sec. 5. (6) Relator is in error when he states that the president of the Board of Aldermen "accepted" the office of mayor. To serve as mayor on the occurrence of a vacancy pending an election is one of the charter duties of the president of the board of aldermen. Since it is one of the duties attached to his office he cannot be said to have permanently vacated his office by becoming mayor. Charter, City of St. Louis, Art. VII, Sec. 5. (7) There is no conflict between Article VII, Section 5 of the charter of the City of St. Louis and Article IX, Section 18 of the Constitution of Missouri. When the president of the board of aldermen becomes mayor he does not "fill" two municipal offices at the same time because the charter expressly provides that there shall be a temporary vacancy in the office of president of the board of aldermen during the time that the president of the board of aldermen is serving as mayor. State ex rel. Murphy v. McBride, 70 P. 25; Grimes v. Holmes, 207 N.C. 293. (8) The words "temporary vacancy" as used in Article VII, Section 5 of the Charter of the City of St. Louis, mean a vacancy that shall exist only during the time while the president of the board of aldermen is "so holding the office of mayor." As this vacancy is terminated at the first general city or state election, at which a successor to the mayor may be elected, that is, November 7, 1944, there is no vacancy in the office of the president of the board of aldermen of the City of St. Louis, Missouri, to be filled at the general election on November 7, 1944. (9) Article IV, Sec. 5, of the Charter of the City of St. Louis, providing that any vacancy in the board shall be filled at the next general city or state election held fifty days or more after such vacancy occurs has no application to a temporary vacancy. (10) The various sections of the charter should be read in conjunction and harmonized whenever possible. There is no conflict between Article IV, Sec. 5, providing for the filling of vacancies by election, and Article VII, Sec. 5, providing that a temporary vacancy in the office of the board of aldermen shall last only as long as the president is so holding the office of mayor. (11) It was clearly the intent of the framers of the charter that the president of the board of aldermen should resume his duties as president of the board and serve out the remainder of the term for which he was elected, after the vacancy in the office of mayor had been filled by election. In the absence of conflict with the Constitution and Laws of the State of Missouri, the intent of the Charter should prevail. Nordberg v. Montgomery, 173 S.W.2d 387; State v. Carolene Products Co., 144 S.W.2d 153.

OPINION

Douglas, C.J.

J. Edward Gragg brings this original proceeding in mandamus to compel the City Register of St. Louis to certify to the Board of Election Commissioners of St. Louis that a vacancy exists in the office of President of the Board of Aldermen and to compel the Board of Election Commissioners to accept his declaration of candidacy for that office and to print his name on the ballot for the primary election to be held on August 1, 1944.

If the office of president of the board of aldermen is vacant respondents should have accepted Gragg's declaration of candidacy. If the office is not vacant its refusal to do so is proper.

William Dee Becker, the Mayor of St. Louis, died in an airplane accident on August 1, 1943. Upon that event Aloys P Kaufmann, the President of the...