State, on Inf. of McKittrick v. Cameron

• Decision Date: 17 June 1938
• Docket Number: 35692
• Citation: 117 S.W.2d 1078,342 Mo. 830
• Parties: State of Missouri on information of Roy McKittrick, Attorney General, Relator, v. Solon Cameron
• Court: Missouri Supreme Court

117 S.W.2d 1078

342 Mo. 830

State of Missouri on information of Roy McKittrick, Attorney General, Relator, v. Solon Cameron

No. 35692

Supreme Court of Missouri

June 17, 1938

Writ of ouster ordered.

Roy McKittrick, Attorney General, and J. E. Taylor Assistant Attorney General, for relator; Boyle & Priest and Thomas Bond of counsel.

(1) Section 1, Article II of the Constitution of Missouri provides that all political power is vested in the people and Section 2, Article VIII grants universal suffrage to all citizens having the qualifications therein prescribed. Sec 2, Art. VIII, Mo. Const. (2) The word "vote" as used in the above section of the Constitution means suffrage and includes the free exercise of choice by the voters. Straughen v. Myers, 268 Mo. 589. (3) This suffrage being granted by the Constitution cannot be impaired restricted or denied by any act of the Legislature. 20 C. J. 62; Bowers v. Smith, 111 Mo. 57; Turpin v. Powers, 270 Mo. 349; Nance v. Kearbey, 251 Mo. 382; Littlejohn v. People ex rel. Desch, 121 P. 162; State ex rel. Bowden v. Bedell, 68 N. J. L. 451, 53 A. 198; State v. Constantine, 42 Ohio St. 437; In re Opinion of Judges, 41 A. 1009; Brown v. Smallwood, 153 N.W. 953; Barr v. Cordell, 155 N.W. 314; State ex rel. v. Coburn, 260 Mo. 192. (4) New Section 9572 of the Act of April 22, 1933, Laws 1933, page 391, providing that "not more than six members of such board shall belong to the same political party," restricts the voter's right of choice and, therefore, violates Section II of Article VIII of the Missouri Constitution. State ex rel. Bowden v. Bedell, 68 N. J. L. 451, 53 A. 198; Littlejohn v. People ex rel. Desch, 121 P. 162; Bowen v. Smith, 111 Mo. 57; In re Opinion of Judges, 41 A. 1009; State v. Constantine, 42 Ohio St. 437; Brown v. Smallwood, 153 N.W. 953. (5) The above quoted provisions of new Section 9572 also violates Section 9 of Article II of the Constitution of Missouri, providing that elections shall be "free and open," and no power shall "interfere to prevent the free exercise of the right of suffrage." Littlejohn v. People ex rel. Desch, 121 P. 162; State ex rel. Preisler v. Woodward, 105 S.W.2d 915. (6) New Section 9574 of the Act of April 22, 1933, Laws 1933, pages 391 and 392, was held to be unconstitutional by this court because in conflict with Section 9, Article II of the Missouri Constitution. State ex rel. Preisler v. Woodward, 105 S.W.2d 912. (7) The provisions of new Section 9572 are so inseparably connected with and dependent upon the parts of the act held invalid in the Preisler case as to warrant the belief that the Legislature intended them as a whole, and hence the whole act is invalid. Bowden v. Bedell, 68 N. J. L. 451, 53 A. 198; Cooley, Constitutional Limitations (7 Ed.), 247; State ex rel. Tolerton v. Gordon, 236 Mo. 171; State ex rel. McDonald v. Lollis, 33 S.W.2d 101; 6 R. C. L. 123. (8) The repealing clause contained in the Act of April 22, 1933, is incidental to the rest of the act and the act being unconstitutional the repealing clause is likewise invalid, leaving the prior general law unrepealed. 6 R. C. L. 125; People v. De Blaay, 137 Mich. 402, 100 N.W. 598.

Alroy S. Phillips for respondent.

(1) After carving out the unconstitutional part of Section 9574, Revised Statutes 1929, as amended, enough remains to make a good law which is complete in itself and capable of being executed in accordance with the intention of the Legislature, and the whole act is not invalid for that reason. Secs. 9572, 9572-A, 9574, R. S. 1929, as amended by Laws 1933, p. 390; State ex rel. Preisler v. Woodward, 105 S.W.2d 912; State ex inf. Hadley v. Washburn, 167 Mo. 697; State ex rel. Harvey v. Wright, 251 Mo. 336; Gross v. Gentry County, 320 Mo. 332, 8 S.W.2d 889; State v. Williams, 77 Mo. 313; State ex rel. Board of Education v. Nast, 209 Mo. 732; State ex rel. Tolerton v. Gordon, 236 Mo. 186; Simpson v. Witte Iron Works, 249 Mo. 396; State ex inf. Barker v. Duncan, 265 Mo. 45; State ex rel. St. Louis County v. Gordon, 268 Mo. 735; State v. Fenley, 309 Mo. 528; State ex rel. Hueller v. Thompson, 316 Mo. 272, 289 S.W. 341; State ex rel. McDonald v. Lollis, 326 Mo. 644, 33 S.W.2d 100; Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 893; Sec. 10300, R. S. 1929, as amended by Laws 1933, p. 225; Atkinson v. Lay, 115 Mo. 553; State ex rel. Von Stade v. Taylor, 220 Mo. 633; State v. Peyton, 234 Mo. 523; State ex rel. Rainwater v. Ross, 245 Mo. 45; State ex rel. Ellis v. Brown, 326 Mo. 660, 33 S.W.2d 104; 22 C. J. 148; People v. Brenham, 3 Cal. 487; McCarter v. McKelvey, 73 A. 885. (2) In providing that not more than six members of the board shall belong to the same political party, Sections 9572, 9572-A, 9574, Revised Statutes 1929, as amended, violate neither Section 9 of Article II, nor Section 2 of Article VIII of the Missouri Constitution. Sec. 9572, R. S. 1929, amended by Laws 1933, p. 390; Sec. 9, Art. II, Sec. 2, Art. VIII, Mo. Const.; State ex rel. Brown v. McMillan, 108 Mo. 164; Kansas City v. Whipple, 136 Mo. 483; Nance v. Kearbey, 251 Mo. 382; State ex rel. Dunn v. Coburn, 260 Mo. 192; State ex rel. Ing v. McSpaden, 137 Mo. 635; State ex rel. Preisler v. Woodward, 105 S.W.2d 914; 19 R. C. L. 756, sec. 61; State ex rel. Harvey v. Wright, 251 Mo. 338; Livelli v. Hoboken, 78 N. J. L. 245; McCarter v. McKelvey, 73 A. 885, Id., 78 N. J. L. 3, 74 A. 317; Ex parte Siebold, 100 U.S. 371; Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535; In re Appointment of Election Supervisors, 9 F. 14, 20 Blatch. 13; State ex rel. Jones v. Sergent, 145 Iowa 298, 124 N.W. 339; Attorney General ex rel. Connolly v. Reading, 268 Mich. 224, 256 N.W. 432; Rogers v. Buffalo, 123 N.Y. 173, 25 N.E. 274, 9 L. R. A. 579; Marshall v. Burke, 158 Tenn. 133, 11 S.W.2d 688. (3) If Sections 9572, 9572-A and 9574, Revised Statutes 1929, as amended, are unconstitutional the election is void, and respondent, being a previous incumbent, is entitled to hold the office until his successor is elected at a legal election. 20 C. J. 95; Sec. 5, Art. XIV, Mo. Const.; Sec. 9574, R. S. 1929. (4) What this court said in the Preisler case as to the validity and effectiveness of the nonpartisan clause of Section 9572, Revised Statutes 1929, as amended, is not obiter dictum. Sec. 9572, R. S. 1929 amended by Laws 1933, p. 390; State ex rel. Preisler v. Woodward, 105 S.W.2d 915; Kane v. McCowan, 53 Mo. 199; Williams v. C., R. I. & P. Ry., 106 Mo.App. 64; 15 C. J. 952. (5) Two of the members of the board of education elected in 1933 belong to the Democratic party, and the board of election commissioners was right in finding that with these two, one elected in 1935, the one elected to the unexpired term and the two highest at the election in 1937, the board of education would have six Democrats in its membership. Secs. 10232-10245, 10253, R. S. 1929; State ex rel. Davis v. Allen, 206 Mo.App. 496; Secs. 9572, 9574, R. S. 1929, amended by Laws 1933, p. 390; Atkinson v. Lay, 115 Mo. 552; State ex rel. Preiss v. Seibel, 295 Mo. 627; Sec. 10233, R. S. 1929; Bowers v. Smith, 111 Mo. 60; Nance v. Kearbey, 251 Mo. 384; Thompson v. Yowell, 137 Ky. 766, 126 S.W. 1102; Esquibel v. Chaves, 12 N.M. 482, 78 P. 505; State ex rel. Preisler v. Woodward, 105 S.W.2d 915; State ex rel. Bowden v. Bedell, 68 N. J. L. 451, 53 A. 199; 22 C. J. 86-92. (6) The provision of Section 9574, Revised Statutes 1929, that the candidates of each party receiving the highest number of votes for the number of board memberships available to members of such party shall be declared elected, is valid, and under it Richard Murphy was rightfully not declared elected, and respondent was rightfully declared elected. Sec. 9574, R. S. 1929, amended by Laws 1933, p. 390; 59 C. J. 985-86; Porto Rico Ry. L. & P. Co. v. Mor, 253 U.S. 346, 40 S.Ct. 517; State ex rel. Crow v. St. Louis, 174 Mo. 140; State ex rel. Pearson v. Louisiana & Mo. River Ry. Co., 215 Mo. 489; State ex rel. St. Louis Pub. Serv. Co. v. Pub. Serv. Comm., 326 Mo. 1169, 34 S.W.2d 488; Secs. 10278, 10278-A, R. S. 1929, latter amended by Laws 1937, p. 233; Sec. 1, Art. IV, Mo. Const.; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 350; State v. Shelby, 333 Mo. 1043, 64 S.W.2d 271; Vrooman v. St. Louis, 337 Mo. 947, 88 S.W.2d 195.

Tipton, J. All concur, except Frank, J., who dissents.

OPINION

TIPTON

This is an original proceeding in quo warranto, the object of which is to oust respondent from office as a member of the Board of Education of St. Louis, Missouri.

At the municipal election held on April 6, 1937, there were to be four members elected to the Board of Education for the full term of six years and one member to be elected for an unexpired term of four years. A special ballot was prepared by the election board and the voters were instructed to vote accordingly. There were seven holdover members, three Democrats and four Republicans, with terms expiring in 1939 and 1941. All of the candidates for the unexpired term were Democrats and Rudolph Hofmeister was declared elected. Of the five candidates receiving the highest vote at this election for the full terms, Mrs. Haymer Lowenhaupt, a Democrat, received 139,213 votes; Thomas F. Quinn, a Democrat, received 139,129 votes; Richard Murphy, a Democrat, received 108,447 votes; Mark D. Eagleton, a Republican, received 105,283 votes; and respondent Solon Cameron, a Republican, received 95,933 votes.

In its official canvass the Board of Election Commissioners of that city found the vote for the respective candidates to be as above stated and issued certificates of election to Mrs. Lowenhaupt, Quinn, Eagleton, and respondent Cameron. Other pertinent facts will be stated in the course of this opinion.

The ultimate question for us to determine is whether respondent...