State ex rel. Hall v. Vaughn, 57842

• Decision Date: 19 July 1972
• Docket Number: No. 57842,57842
• Citation: 483 S.W.2d 396
• Parties: STATE ex rel. Harry A. HALL, Relator, v. John C. VAUGHN, Comptroller and Director of Budget, Respondent.
• Court: Missouri Supreme Court

Page 396

483 S.W.2d 396

STATE ex rel. Harry A. HALL, Relator, v. John C. VAUGHN, Comptroller and Director of Budget, Respondent.

No. 57842.

Supreme Court of Missouri, En Banc.

July 19, 1972.

Rehearing Denied Aug. 3, 1972.

Shook, Hardy, Ottman, Mitchell & Bacon, by David R. Hardy, Charles L. Becon, William G. Zimmerman, Kansas City, for plaintiff.

John C. Danforth, Atty. Gen., John C. Klaffenbach, C. B. Burns, Jr., Asst. Attys. Gen., Jefferson City, for respondent.

MORGAN, Judge.

In this original proceeding, relator asserts that he is the Judge of Division Ten of the Sixteenth Judicial Circuit of Missouri; that respondent is Comptroller and Director of Budget for the State of Missouri with the duty of approving and issuing payroll drafts to pay the salary of judges of this state; that since the date of January 1, 1972, respondent has failed and refused to pay the compensation provided by law for a judge of said division on the premise that relator on said date ceased to be a judge of the Sixteenth Judicial Circuit by virtue of the provisions of Section 30, Article 5, of the 1945 Constitution of Missouri, V.A.M.S., as adopted at a special election on August 4, 1970, with an effective date of January 1, 1972; and, as a consequence thereof, relator seeks a peremptory writ of mandamus compelling the payment of such compensation.

To sustain his position, relator submits: (1) that Section 30 of Article 5 is an entirely new constitutional provision which applies prospectively and therefore does not modify or curtail relator's present term of office, and, (2) that said section constitutes an arbitrary, unreasonable and unconstitutional classification among circuit judges of this state in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Factually, the parties agree that in 1956 relator was appointed a judge of said circuit pursuant to the provisions of the constitution of this state (generally referred to as the non-partisan court plan); that he was retained in office in the general elections of 1958 and 1964 and served for successive terms of six (6) years each; that on May 15, 1970, in accordance with the provisions of Section 29(c)(1) of Article 5, relator filed the constitutional declaration of candidacy for re-election and was retained in office in the general election of November, 1970, for an additional term of six (6) years beginning January 1, 1971, and ending December 31, 1976; and, that relator became seventy (70) years of age on November 3, 1970. Further, it is agreed that during all of the time relator has served as a judge, including the first year of his present term, there was no constitutional maximum age limitation applicable to the office he held. However, Section 30 now provides, in part, that: 'All judges appointed under the provisions of sections 29(a)--(g) of this article or appointed under the nonpartisan selection of judges in any circuit which adopts that method of selection, shall retire at the age of seventy years . . ..'

From all of which, it becomes obvious that there is only one question to be answered--must relator, who was lawfully elected by the people to a six year term expiring December 31, 1976, in pursuance of the constitution and laws existing at the time of his selection, immediately 'retire' and terminate his services as a judge because of the adoption of a new maximum age limitation for 'all' judges?

In seeking the answer, we first consider relator's contention that Section 30 is to be given a prospective application and was not adopted with the design, purpose or intent to oust relator or others, who have or may reach the age of seventy during their present terms of office, prior to the end of the term to which they previously have been lawfully elected. First, it is of interest to consider what status, if any, a judge or the incumbent of any public office does have. Quite consistently, the courts of this country have declared that public offices are created solely to meet the needs of the public and that the incumbent thereof has no contractual or vested right to the particular office; and, on that premise, it has been concluded that: 'The power to create an office generally includes the power to modify or abolish it.' 42 Am.Jur., Public Officers, Section 33; 16 C.J.S. Constitutional Law § 251. In fact, this court has so held from the early case of State v. McBride, 4 Mo. 303, 29 Am.Dec. 636 (1836) to the recent case of State v. Davis, 418 S.W.2d 163 (1967). In McBride approval was given to the abolishment of an office, while in Davis shortening the term of an office was approved. Other decisions of this court during the interim on related questions may be found in Primm v. Carondelet, 23 Mo. 22; State ex rel. Attorney-General v. Davis, 44 Mo. 129; State ex inf. Crow v. Evans, 166 Mo. 347, 66 S.W. 355; State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State ex rel. Rothrum v. Darby, 137 S.W.2d 532; Motley v. Callaway County, Mo., 347 Mo. 1018, 149 S.W.2d 875; Willens v. Personnel Bd. of Kansas City, 277 S.W.2d 665; and State v. Ludwig, 322 S.W.2d 841. As even a casual reading of such cases will reflect, the basic principle upon which the holdings therein were based was that public offices are created to meet the needs of the people; and, that when such need ceases to exist, there is no obligation or necessity to continue a useless office. From this premise, the courts have been able to rationalize the validity of making other structural changes in an office, such as shortening the term provided for the occupant of such an office. However, it is of interest as to whether or not the same rationale is truly applicable to the facts of this case. There has been no expression by the people that they no longer need a judge of Division Ten of the Sixteenth Judicial Circuit nor that there is a need to shorten the term of the occupant thereof. The question arises--even though the incumbent of an office has no vested right that the office continue, does he not have a right, by virtue of his selection by the people, to be the occupant of that office for the term for which he was selected if the need for such office still exists? Argument could be made that a change of qualification is directed more toward the incumbent than toward a structural change in the office. This court, after reviewing the historical and rather tenuous position of an office-holder in State ex rel. Henson v. Sheppard, supra, said, 91 S.W. at l.c. 481: '* * * Speaking to the point in hand, Judge Andrews, in Nichols v. MacLean, 101 N.Y. (526) loc. cit. 533, 5 N.E. 347, 54 Am.Rep. 730, aptly says: 'But within these acknowledged limits the right to an office carries with it the right to the emoluments of the office. An office has a pecuniary value, although primarily it is an agency for public purposes.' So that, given that one but 'reads his title clear to' a public office, he may not be rudely cast out from its solatium, its emoluments, except on due process and by the rigor of penalties denounced by positive law.' To those who would answer the question posed in the negative based on the general concept that the 'will' of the people is supreme, it might be suggested that the same people also expressed their 'will' when they selected relator for the office in question. Nevertheless, we depart from this rather extraneous and somewhat illusive area and return to the point at hand--did the people intend by the new maximum age limitation to oust that person (relator) whom they had selected to serve as Judge of Division Ten until December 31, 1976? In other words--was it intended that Section 30 be given a retrospective or prospective application?

The accepted answer to the latter question may be found in 16 Am.Jur. 2d, Constitutional Law, Section 48, wherein it is said, in part: 'The presumption that statutory enactments are not to be considered retrospective in their operation unless the intention to make them so is clearly apparent from their terms has application as well to constitutional provisions. Thus, the general rule is that prospective effect alone is given to provisions of state constitutions. The ultimate determinative factor is, however, the intent of the framers.' Consistent therewith is the law of Missouri. 'The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only (citing cases).' (Emphasis added.) State ex rel. Scott v. Dircks, Mo., 111 S.W. 1; Mo.Dig., Constitutional Law, k23. The only prior constitutional provision providing for mandatory retirement was a provision in Section 25 (now repealed) which established a seventy-five year age limit for Appellate Judges. Section 30 is an entirely new provision applicable to all court plan judges, including circuit court judges, and as such, must be considered as an expression of a new constitutional policy. Therefore, if we are to follow the law of this state, prospective application is to be given the new amendment in question, unless we can find a contrary intent that is spelled out in clear, explicit and unequivocal detail so that retrospective application is called for 'beyond (a) reasonable question.'

Respondent seeks to sustain his position, generally, with the argument that new Article Five does not have a saving provision or what is referred to as a 'grandfather clause' (applicable to the office relator holds) retaining those presently in office. From this premise, it is submitted that the absence thereof is indicative of an intent to apply the new age limitation to those incumbents selected prior to January 1, 1972. We cannot accept the logic of such an argument. Obviously, if there is a saving provision, the rule of prospective application is not brought into the picture for the...