State ex rel. McDaniel v. Schramm

• Decision Date: 12 December 1917
• Citation: 199 S.W. 194,272 Mo. 541
• Parties: THE STATE ex rel. LAWRENCE McDANIEL, Circuit Attorney of St. Louis, v. FRANK SCHRAMM
• Court: Missouri Supreme Court

199 S.W. 194

272 Mo. 541

THE STATE ex rel. LAWRENCE McDANIEL, Circuit Attorney of St. Louis, v. FRANK SCHRAMM

Supreme Court of Missouri

December 12, 1917

Writ granted.

Spencer & Donnell for relator.

(1) It is admitted that the State has the power to control the election of assessor of the city of St. Louis and to regulate the conduct of the office in precisely the same manner and to the same extent as it has power in relation to the assessors of the several counties of the State. (2) The State has expressly refused to act in regard to the assessor of St Louis. Ever since the city was separated from the county in 1876 the State has expressly exempted the city from the statutory provisions relating to the office of assessor. Sec 11341, R. S. 1909, and all the provisions of article 2 chapter 117. (3) The charter of St. Louis, both the charter of 1875 and the present charter of 1914, expressly make the city assessor a city office and provide for the election of the assessor and for the term of the office. Charter 1876 art. 4, sec. 1; art. 5, secs. 15, 18; Charter 1914, art. 15, secs. 4, 5, et seq; Art. 8, secs. 1, 2, 3, et seq. (4) The provisions of the charter are operative until the State sees fit to regulate the office and to legislate upon the subject itself. State ex rel. v. Koeln, 270 Mo. 174; State ex rel. v. Watson, 71 Mo. 471; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Finn, 8 Mo.App. 341; State ex rel. v. Mason, 4 Mo.App. 377. (5) If the provision of Sec. 11341, R. S. 1909, which exempts St. Louis from its operation, is unconstitutional, then the entire article is unconstitutional and there is no statutory provision either for the city or for the counties relating to the office of assessor. Henderson v. Koenig, 168 Mo. 372; Township of Lodi v. State, 5 N.J.L. 402, 6 L.R.A. 57; State ex rel. v. Gordon, 236 Mo. 170. (6) The exemption of St. Louis by the Legislature from the general provisions regulating county assessors is constitutional and valid. The State can legislate directly for St. Louis. State ex rel. v. Mason, 153 Mo. 52; Kansas City v. Stegmiller, 151 Mo. 204; State v. Rawlings, 232 Mo. 560; Ex parte Loving, 178 Mo. 194; State ex rel. v. Mason, 155 Mo. 486; Spaulding v. Brady, 128 Mo. 653; State ex rel. v. Miller, 100 Mo. 439. (7) The question is as to whether respondent is entitled to the office of assessor and the burden is on him to show good title to it, on the ground which he asserts, viz., that a vacancy existed in the office of assessor which authorized his appointment by the Governor. State ex rel. v. Powles, 136 Mo. 376. (8) The charter provisions are in harmony with the Constitution and laws of the State, for although the Constitution specifically provides (Art. 9, sec. 25) that the General Assembly shall have the same power over the city of St. Louis that it has over the counties of the State, and although the Assembly could, without doubt, assume the exercise of said power at any time, yet it has in fact expressly refused to exercise said power with relation to the office of assessor of St. Louis, and has made no provision whatever concerning the election of said official. Constitution, art. 9, secs. 20 and 22; Sec. 11341, R. S. 1909; State ex rel. v. Koeln, 270 Mo. 174; State ex rel. v. Walsh, 69 Mo. 408. (9) Sec. 11341, R. S. 1909, is entirely constitutional, and its provision excluding St. Louis from its operation is valid and binding. State ex rel. v. Mason, 153 Mo. 52; Kansas City v. Stegmiller, 151 Mo. 189; Ex parte Loving, 178 Mo. 203; State v. Rawlings, 232 Mo. 560; State ex rel. v. Mason, 155 Mo. 486; Spauling v. Brady, 128 Mo. 653; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Roach, 258 Mo. 565; State ex rel. v. Telephone Co., 189 Mo. 99; St. Louis v. King, 226 Mo. 344. (10) If the proviso in Section 11341 which excludes the city of St. Louis be eliminated, the remainder of the section cannot be so construed as to include the city. Sec. 8057, R. S. 1909; State ex rel. v. Gordon, 236 Mo. 161; 36 Cyc. 977; 26 Am. & Eng. Ency. Law, 570.

Charles H. Daues, Amicus Curiae.

Wilfley, McIntyre & Nardin and E. F. Nelson for respondent.

(1) The Constitution of 1875, in addition to providing authority for the adoption of a special charter by the city of St. Louis, provides that the city shall exercise some of the functions of counties with reference to the State government, and for such purposes the city is a political subdivision of the State as well as a municipal corporation. Sec. 23, art. 9, Constitution 1875; State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Bus, 135 Mo. 337; Gracy v. St. Louis, 213 Mo. 387. (2) The Constitution expressly provides that the city of St. Louis shall be subject to the general laws of the State, and that all special laws applicable to St. Louis County shall be suspended by the Scheme and Charter. Secs. 20 to 25, art. 9, Constitution 1875. (3) The official who assesses property for the imposition of State taxes is a county official, and, as such, the establishment and regulation of his office can be accomplished only by the General Assembly. State ex rel. v. Imel, 242 Mo. 300; State ex rel. v. Koeln, 270 Mo. 174; Sheboygan Co. v. Parker, 70 U.S. 93; Sec. 14, art. 9, Constitution 1875. (4) The city of St. Louis, as a political subdivision of the State, is in no special class and legislation undertaking to exempt it from general laws, applying to the exercise of powers or functions peculiar to such subdivision, is in violation of the Constitution. State ex rel. v. Tele. Co., 189 Mo. 99; St. Louis v. King, 226 Mo. 344; Sec. 53, art. 4, Constitution; Kansas City v. Stegmiller, 151 Mo. 189; Henderson v. Koenig, 168 Mo. 372; Township of Lodi v. State, 51 N.J.L. 402; State ex rel. v. Miller, 100 Mo. 439. (5) An invalid proviso attached to a general statute does not invalidate the whole statute, but only the proviso fails. State ex rel. v. Gordon, 236 Mo. 161.

BOND, J. Walker and Woodson, JJ., concur; Faris, J., concurs in separate opinion; Williams, J., dissents in separate opinion, in which Graves, C. J., and Blair, J., join. WALKER, J., and BOND, J., concurring.

OPINION

In Banc.

Quo Warranto.

BOND J.

This is a quo warranto instituted by the circuit attorney of the city of St. Louis, to determine the right of respondent to the office of assessor for that city. By the charter of St. Louis, adopted in 1876, the office of assessor in that city was created and provision was made for filling the same by election thereafter held at intervals of four years. In accordance with this provision of the charter, respondent was elected and installed as such assessor in April, 1913. His term expired in the spring of 1917. Pending the expiration of respondent's term, the city of St. Louis adopted a new charter, providing, among other things, that the office of assessor should after the expiration of the term of respondent become appointive, with authority in the mayor of the city to make proper appointment thereto. Pursuant to the provision the mayor appointed an assessor, who qualified and demanded the office of respondent whose term had then expired. Respondent, however, obtained an appointment from the Governor on April 16, 1917, and claiming thereunder, refused to surrender the office, insisting that the Governor had the legal authority to appoint him upon the expiration of his term by virtue of the provisions of Section 11341 of the Revised Statutes of 1909, which respondent claimed made it necessary to elect an assessor quadrennially in the fall, instead of in the spring; that his own election and that of all previous assessors who had been elected in the city of St. Louis since the adoption of its charter in 1876 were invalid.

I. Since the adoption of the Constitution in 1875, the city of St. Louis, by virtue of the provision of that instrument, has become a city distinct from the four classes of cities into which all the other cities of the State are divided by the Constitution. It has become, also, the possessor of a distinct charter, the creation and adoption of which was provided for by article 9, sections 20, 22, 23 and 25, of the Constitution of 1875. That instrument further provided, upon the adoption of such charter and the accompanying scheme of separation from the county of St. Louis, that the provisions of the new charter should supersede and take the place of all special laws previously applicable in the former territory of St. Louis County then added to that city by the act of separation, and the previous charters and amendments thereto of the city of St. Louis. [Ibid., sec. 20.] It further provided that the charter of St. Louis to be adopted in virtue of its authority, should only be amended in the manner pointed out in that instrument. [Ibid., sec. 22; Laws 1901, p. 263; Laws 1905, p. 320; St. Louis v. Dorr, 145 Mo. 466, 46 S.W. 976, and cases cited.]

Recognizing however, that the territory of the municipality thus authorized -- although separated from the county of St. Louis -- would continue under the control of the future Legislatures of the State of Missouri in all respects not otherwise provided by the Constitution, an express affirmance of such legislative authority was inserted in the provisions of the Coustitution. [Ibid., sec. 25.] The city of St. Louis is the only one in the State which by name is authorized by the Constitution to exercise the specific powers granted to it by that instrument. [Ibid., sec. 20.] A general enabling act was, however, inserted to embrace other cities which, although not named, should fall within a constitutional class. [Ibid., sec. 16.] Cities thus constitutionally chartered form classes distinct and separate from the four divisions prescribed by the organic law (Ibid., sec. 7), and their...