State ex rel. McKittrick v. Becker

• Decision Date: 16 April 1935
• Docket Number: No. 34158.,34158.
• Parties: STATE OF MISSOURI at the Relation of ROY McKITTRICK, Attorney General, Relator, v. WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

81 S.W.2d 948

STATE OF MISSOURI at the Relation of ROY McKITTRICK, Attorney General, Relator, v. WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals.

No. 34158.

Supreme Court of Missouri.

Court en Banc, April 16, 1935.

Prohibition.

PROVISIONAL RULE DISCHARGED.

Roy McKittrick, Attorney General, and James L. HornBostel, Assistant Attorney General, for relator.

The St. Louis Court of Appeals is provided for in the Constitution of Missouri, Section 13, Article VI, and provides, in part, as follows: "The St. Louis Court of Appeals shall consist of three judges, to be elected by the qualified voters ... who shall hold their offices for the period of twelve years... ." See, also, Sections 1889 and 1890, Revised Statutes 1929. House Bill No. 4, with an emergency clause, approved April 1, 1935, by the Governor, provides in part, as follows: "Section 1. The St. Louis Court of Appeals is hereby authorized and directed to appoint by order made and entered of record within thirty days after this act shall take effect, two persons to be known as Commissioners of the St. Louis Court of Appeals... ." Nowhere in said act is it provided that a majority of said court may appoint a commissioner or commissioners.

Jacob M. Lashly and Williams, Nelson & English for respondents.

(1) The appointee (commissioner) must be related to the public officer (judge) who actually exercises the power of appointment, and Judge Sutton is not related to either Judge Becker or Judge McCullen who, independently of Judge Hostetter, are exercising the power of appointment. Const. of Mo., Art. XIV, Sec. 13; State ex inf. McKittrick v. Whittle, 63 S.W. (2d) 100. (2) The St. Louis Court of Appeals consists of three judges, two of whom constitute a quorum, and one judge alone can neither appoint nor veto an appointment made by the other two. Const. of Mo., Art. VI, Sec. 14. (3) Article XIV, Section 13, of the Missouri Constitution, is highly penal and must be strictly construed. State ex rel. Robinson v. Keefe, 149 So. 638; State ex inf. Collins v. Railroad, 238 Mo. 605. (4) The Missouri Constitution does not in any way affect the eligibility of the appointee but places the penalty, if any, upon the relative who exercises the appointing power and is to be distinguished from constitutional provisions and statutes of other states prohibiting the appointment of one related to any member of the given group exercising the power of appointment. Barton v. Alexander, 27 Idaho, 286; Farress v. Cameron County Water Works Improvement District No. 1, 25 S.W. (2d) 651.

HAYS, J.

This is an original proceeding in prohibition brought by the State at the relation of the Attorney General, in his official capacity, to prohibit and restrain the respondents, as Judges of the St. Louis Court of Appeals, from reappointing one Robert L. Sutton to the office of commissioner of that court.

Upon the filing of the relator's petition and the making of our order for the issuance of our provisional rule in prohibition the respondents waived the issuance of the rule and, taking the petition as and for our writ, filed their demurrer thereto. The cause was submitted upon the issues so joined, and the facts pleaded in the petition stand as admitted. The question of law thus raised is for determination upon the proper interpretation to be placed on an amendment of our Constitution known as the nepotism provision (Art. 14, Sec. 13). The facts are as follows:

The respondents and the Honorable Jefferson D. Hostetter are the legally and duly elected, qualified and acting Judges of the St. Louis Court of Appeals.

That court for many years has had commissioners, and now has two, whose duty it is and has been to sit with the court when required by the court so to do, and to prepare opinions in such cases as may be referred to them by the court for that purpose, and whose offices are and have been heretofore duly created and provided for from time to time by Acts of the General Assembly of this State (Laws 1923, p. 147; House Bill No. 4, 58th General Assembly), and who are required by law to possess the same qualifications as judges of that court.

The present commissioners, namely, the Honorable Robert L. Sutton and the Honorable Walter F. Bennick, were appointed under Laws 1931, pages 183-184, each for a term of four years, and their terms as such commissioners will expire on June 18, 1935.

Under House Bill No. 4, effective April 1, 1935, said offices were continued for another term of four years beginning on June 19, 1935. Said acts provide that no more than one of said commissioners shall belong to the same political party and that said commissioners shall belong to the two political parties casting the greatest number of votes at the last preceding general election.

Commissioner Sutton was first appointed a commissioner of said Court of Appeals for a term of two years beginning June 19, 1923; reappointed for a term of two years beginning June 19, 1925; reappointed for a term of four years beginning June 19, 1927; and last appointed for a term of four years beginning June 19, 1931. During all that period he belonged and now belongs to the Democratic Party, which was one of the two political parties casting the greatest number of votes at each general election last preceding each of his said appointments and at the by-election of last November.

Commissioner Sutton is now being considered for reappointment as a commissioner of said court for a term of four years provided by said House Bill No. 4, beginning on June 19, 1935, and ending June 18, 1939. He is related within the fourth degree of consanguinity to one of the said judges, being a first cousin of Judge Hostetter, but in nowise related to either of the other judges. It is conceded that because of said provision and the relationship of consanguinity existing between Judge Hostetter and Commissioner Sutton, as aforesaid, the former, as judge of said court, has declined to cast his vote for the reappointment of the latter as commissioner of said court, and has expressly declared his intention and will not so cast his vote.

Notwithstanding said relationship existing between Judge Hostetter and Commissioner Sutton, the respondents, who constitute a majority of the judges of said Court of Appeals, acting in the exercise of their individual prerogatives as judges of said court, but free from any connivance,...