State, on Inf. of McKittrick v. Dwyer

• Decision Date: 07 February 1939
• Docket Number: 36397
• Citation: 124 S.W.2d 1173,343 Mo. 973
• Parties: State of Missouri on information of Roy McKittrick, Attorney General, Relator, v. John J. Dwyer
• Court: Missouri Supreme Court

124 S.W.2d 1173

343 Mo. 973

State of Missouri on information of Roy McKittrick, Attorney General, Relator, v. John J. Dwyer

No. 36397

Supreme Court of Missouri

February 7, 1939

Ouster ordered.

Roy McKittrick, Attorney General, and Tyre W Burton, Assistant Attorney General, for relator.

(1) The charter of the city of St. Louis must be in harmony with and subject to the Constitution and laws of Missouri. Art. IX Secs. 16, 23, 25, Mo. Const.; Ewing v. Hoblitzelle, 85 Mo. 77; State ex. rel. Goodnow v. Police Commrs., 184 Mo. 109. (2) General laws apply to the city of St. Louis and counties alike. Sec. 655, R. S. 1929; (3) The county treasurer shall be elected at the general November election. Laws 1911, p. 163; Sec. 9528, R. S. 1919; Laws 1937, p. 426 sec. 12130c. (4) The treasurer of the city of St. Louis is a county or State officer. State ex rel. McAllister v Dunn, 277 Mo. 41; State ex inf. Barker v. Koeln, 192 S.W. 751; Commonwealth ex rel. Hensel, Atty. Gen., v. Oellers, 21 A. 1086. (5) The construction given a statute by the administrative officers should have great weight. 59 C. J., 1037; In re Graves, 30 S.W.2d 154; 46 C. J. 1058; Chicago v. Burke, 226 Ill. 191. (6) The city treasurer of the city of St. Louis performs governmental functions. Secs. 3853, 9255, R. S. 1929. (7) The city treasurer is required to receive all public moneys for which no other provision is made. Art. IX, Sec. 20, Mo. Const.; Sec. 32, Scheme of the City of St. Louis. (8) The municipal assembly, mayor and comptroller of the city of St. Louis to perform the duties of the county court in relation to the county treasurer. Secs. 14796, 14797, R. S. 1929; Secs. 12133, 12138, Laws 1937, pp. 426, 427. (9) The vacancy in the office of city treasurer is to be filled by appointment by the Governor. Art. V, Sec. 11, Mo. Const.; Sec. 10216, R. S. 1929; State ex inf. v. Koeln, 192 S.W. 753. (10) The Legislature may alter and amend the charter of the city of St. Louis. State ex rel. Ziegenhein v. Railroad, 117 Mo. 12; State ex rel. v. Stobie, 92 S.W. 191, 194 Mo. 61.

Edgar H. Wayman and Oliver Senti for respondent.

(1) The word "county," when used in a law, does not include the city of St. Louis when such construction is inconsistent with the evident intent of such law or some law especially applicable to the city of St. Louis. Sec. 655, R. S. 1929. (2) When the scheme and charter were adopted, the scheme became the organic law of the county and city, and the charter became the organic law of the city and superseded and took the place of the charter then in force, and all special laws relating to St. Louis County inconsistent with the scheme. Mo. Const., Sec. 20, Art. IX. (a) When the charter was revised in 1914, it superseded the charter adopted in 1876 and all special laws inconsistent therewith. Mo. Const., Sec. 22, Art. IX; State ex rel. McDaniel v. Schramm, 272 Mo. 541, 199 S.W. 194. (b) The enactment of general laws did not repeal special laws applicable to St. Louis County, although inconsistent therewith. State ex rel. Attorney General v. Fiala, 47 Mo. 310. (c) The office of treasurer of the city of St. Louis was provided for and made elective by the charter adopted when the county and city separated. Charter of St. Louis, Sec. 1, Art. IV. (d) Section 1 of Article IV of the Charter of 1876 was superseded by a provision of the Revised Charter of 1914 making the office appointive. Charter of St. Louis, Sec. 1, Art. VIII.

(e) Provisions of the Charter of 1876, which superseded special laws applicable to St. Louis County, although different from the general law, do not violate the Constitution of 1875. State ex rel. Attorney General v. Watson, 71 Mo. 472. (f) Provisions of the Revised Charter of 1914, which supersede the Charter of 1876 and special laws applicable to St. Louis, although different from the general law, do not violate the Constitution of 1875. Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808. (g) The Session Acts containing every general law providing for the election of county treasurers since the separation of the county and city of St. Louis show that the act was an amendment of the existing law or that it was enacted in lieu of the existing law. (h) A subsequent act of the Legislature repealing and re-enacting at the same time a pre-existing statute is but a continuation of the latter and dates back from the passage of the first statute and not the latter, and this is true even though the new section contains modifications of the repealed sections. State v. Ward, 322 Mo. 658, 40 S.W.2d 1074; State ex rel. v. Fiala, 47 Mo. 319. (3) The decision of this court in State ex rel. v. Dunn, supra, decided only one point, to-wit, that the person holding the office of deputy collector, when elected to that of treasurer, was disqualified. In State ex inf. v. Koeln, supra, the general law relating to the collector contained reference to the collector of the city of St. Louis and therein differed from the general law relating to county treasurer.

Gantt, J. All concur, except Douglas, J., who dissents.

OPINION

GANTT

Original action in quo warranto to determine the question of respondent's title to the office of treasurer of the city of St. Louis. For many years the treasurer of said city has been elected at the general election in November. At said election in 1936 Henry C. Menne was elected treasurer of said city. On his death, and on September 12, 1938, respondent was appointed by the mayor to fill the vacancy. The apopintment was made under Section 1, Article VIII of the city charter, 1914, which follows:

"The Mayor shall appoint the following officers at his convenience, to hold for the term for which he was elected and until their successors qualify: assessor, collector, treasurer, supply commissioner, registrar, city counselor, city marshal, city court judges, clerk of city courts, president board of public service, director of public utilities, director of streets and sewers, director of public welfare, and director of public safety."

On the adoption of the "scheme" for the separation of the city and the county, the city became both a political subdivision of the State and a city in its corporate capacity. For instance, it is provided that "the city . . . shall . . . collect the State revenue and perform all other functions in relation to the State, in the same manner, as if it were a county as in this Constitution defined." [Sec. 23, Art. IX, Const.] Respondent states the case at bar as follows:

"We do not wish to be understood as contending that the Charter of St. Louis is not subject to the Constitution and laws of the State. Section 23 of Article IX, which is applicable to the City of St. Louis, provides that its charter and amendments shall (with certain exceptions which are not material here) always be in harmony with and subject to the Constitution and laws of the State. It also provided by Section 25 of Article IX that, notwithstanding the provisions of that article, the General Assembly shall have the same power over the City and County of St. Louis as it has over other cities and counties of the State.

"The question to be determined in this case is not whether it is within the power of the General Assembly to provide for the election of a Treasurer of the City of St. Louis, but whether or not it has done so."

In view of the admissions in said statement, it will not be necessary to consider the cases ruling questions of conflict between the city as a political subdivision and the city in its corporate capacity.

The statutes providing for the election of a county treasurer follow:

"On the Tuesday after the first Monday in November, 1912, and every four years thereafter, there shall be elected by the qualified voters of the several counties in this state a county treasurer, who shall be commissioned by the county court of his county, and who shall enter upon the discharge of the duties of his office on the first day of January next succeeding his election, and shall hold his office for a term of four years, and until his successor is elected and qualified, unless sooner removed from office: Provided, that in counties having adopted, or that may hereafter adopt township organization, the term of office of said treasurer shall be extended to the first day of April next after the election of his successor." [Sec. 12130, Art. VIII, R. S. 1929.]

In 1933 (Laws 1933, pp. 338 and 357) Section 12130 and other sections of Article VIII, Revised Statutes 1929, were repealed and new sections enacted abolishing the office of county treasurer in certain counties. In 1937 (Laws 1937, pp. 424, 426) the Act of 1933 was repealed and said office re-established in the several counties of the State.

The Act of 1937, Section 12130c provided that "on the Tuesday after the first Monday in November, 1940, and every four (4) years thereafter, there shall be elected by the qualified voters in all counties of this State, now or hereafter having a population of 40,000 or more inhabitants according to the last Decennial United States Census (except in counties having 75,000 and not more than 90,000 inhabitants), and in all counties of less than 40,000 inhabitants if under township organization, a county treasurer, who shall be commissioned by the County Court of his County, and who shall enter upon the discharge of the duties of his office on the...