State ex rel. Tice v. Cnty. Court of St. Louis Cnty.

• Decision Date: 31 March 1867
• Parties: STATE ex rel. JOHN H. TICE, styling himself School Commissioner of St. Louis County, Petitioner, v. THE COUNTY COURT OF ST. LOUIS COUNTY, and WILLIAM H. HEATH, Auditor of said County, Respondents.
• Court: Missouri Supreme Court

41 Mo. 52

STATE ex rel. JOHN H. TICE, styling himself School Commissioner of St. Louis County, Petitioner,

v.THE COUNTY COURT OF ST. LOUIS COUNTY, and WILLIAM H. HEATH, Auditor of said County, Respondents.

Supreme Court of Missouri.

March Term, 1867.

Petition for Mandamus.

E. Casselberry, for petitioner.

The special act of 1857 is an exception out of a general act of 1853, and both of these are yet in force--St. Louis v. Alexander, 23 Mo. 509; Vastine v. Probate Judge, 38 Mo. 529; § 5, p. 883, G. S. 1865. The act of 1857 is continued in full force by virtue of § 6, p. 883, G. S. 1865.

It may be laid down as a general rule that it is deemed against the policy of the law to favor repeals by implication--Smith's Com. on Stat. 879; Sedgw. on Stat. 127; 6 W. & Serg. 209; 10 Barr, 442; 21 Pa. 533; Deters v. Renick, 37 Mo. 597.

On comparing the general School law of 1855, vol. 2, p. 1430, it will be seen that the powers and duties of the county superintendent of Public Schools is essentially different from the powers and duties of school commissioner in the law of 1855. The powers and duties of these officers are as different as the powers and duties of sheriff and marshal of St. Louis county. As an evidence that the general law of 1865 is not applicable to St. Louis county, it will be seen that the salary is wholly inadequate as far as concerns St Louis county. The general law of 1865, § 52, p. 268, only allows compensation for sixty days, when the Legislature at the time knew that the whole time of the commissioner for St. Louis during the whole year would be necessary.

H. A. Clover, for respondents.

It will be perceived by the court, that by ch. 46, entitled “Of the re-organization, supervision and maintenance of Common Schools,” Laws of 1865, p. 255, &c., the Legislature of the State have entirely reconstructed the common school system of the State. There is no longer the office of commissioner of common schools; in lieu thereof is created the office of county superintendent of common schools, whose election by the qualified voters of the several counties is provided for at the general election in the year 1866, and every two years thereafter.

Under the old law of 1855, it was the duty of the commissioner, 1st, to apportion the State, county and township school moneys subject to distribution among the several school districts of his county, according to the number of white children residing in each between the ages of five and twenty years, as shall appear from the last annual reports of the trustees, and also to apportion in the same manner State and county school moneys subject to distribution among the school corporations in his county--2 G. S. p. 1430.

By section 80 of the new law of 1865, this duty is now devolved upon the county clerk--Laws of 1865, p. 27. In the same way the duties devolved upon the commissioner by the second subdivision of § 5, R. C. 1855, p. 1430, are now devolved upon the county clerk. And so on, going through the whole law, it will be seen there is a radical change in the system; the old office is abolished and the new one created. All the duties formerly required of the school commissioner are either devolved up on other officers, or upon the county superintendent.

The Legislature have plainly, directly, and by express enactment, repealed the law of 1855.

FAGG, Judge, delivered the opinion of the court.

The petitioner claims that in pursuance of law he was at the general election held in the month of November, 1864, duly elected by the qualified voters of St. Louis county to the office of school commissioner of said county; that said election, so far as this particular office is concerned, was authorized by an act of the Legislature of this State, approved March 3, 1857; that said act is local and especially applicable to the county of St. Louis, and that by the provisions thereof his term of office was to continue for a period of four years, and until his successor should be duly elected and qualified.

It is further stated that the petitioner, having in all respects complied with the laws of the State regulating the office of the county school commissioner, entered upon the duties of his said office, and has continued to perform the same to the present time; that the compensation to said officer had, in pursuance of law, been fixed by the said court at the sum of fifteen hundred dollars per annum, payable in quarterly instalments; that on the 15th day of March, 1867, one quarter's instalment, amounting to the sum of three hundred and seventy-five dollars, was due the petitioner, and that the same had been demanded of the respondents, and by them refused: wherefore a mandamus is prayed for.

The return of the respondents to the alternative writ admits the truth of all the facts alleged in the petition, except as to the fact of the existence of such an office as county school commissioner for St.Louis county since the first of January, 1867. It is averred that the law of 1857, creating this office, and the act of March 3d, 1857, providing for the manner of filling the same, have both been repealed by the revision of the general statutes of Missouri of 1865. That the office of county school commissioner is abolished, and the office of county superintendent of Public Schools substituted in its stead, which said office was duly filled by the election of Andrew Murphy by the qualified voters of St. Louis county, at a general election held in the month of November, 1866, in pursuance of the provisions of the statute, &c.

The question involved in this proceeding is presented upon the demurrer to the answer of respondents, and the facts therein stated are therefore to be taken as true. The only inquiry is whether such an officer as county school commissioner of St. Louis county has been in existence, in contemplation...