State v. Breuer

• Decision Date: 07 June 1911
• Parties: STATE ex inf. MAJOR, Atty. Gen., ex rel. RYORS v. BREUER.
• Court: Missouri Supreme Court

138 S.W. 515

235 Mo. 240

STATE ex inf. MAJOR, Atty. Gen., ex rel. RYORS v. BREUER.

Supreme Court of Missouri.

June 7, 1911.

1. OFFICERS (§ 33)—QUALIFICATION—ELIGIBILITY—STATUTES—"ELIGIBLE."

Though Const. art. 2, § 19, and Rev. St. 1909, § 11,446, provide that no collector or receiver of public money shall be eligible to any office of trust or profit until he shall have accounted for and paid over all public money for which he may be accountable, a collector of revenue may, before the expiration of his term of office, become a candidate for and be elected to another office of trust or profit, since the word "eligible" as so used has reference to the actual assumption of the duties of an office, and it is sufficient if the condition is complied with before the functions of the new office are to be taken up, though in other cases the word may be used in reference sometimes to the one date and sometimes to the other.

2. STATUTES (§ 218) — CONSTRUCTION — CONTEMPORANEOUS CONSTRUCTION.

Contemporaneous construction for a long time is of great weight in the construction of a statute.

3. EVIDENCE (§ 45)—JUDICIAL NOTICE.

In determining whether a collector, while holding that office and before making final settlement, is eligible for election to another office, the Supreme Court will take judicial notice that State Treasurers, while incumbents of that office, have been elected to other offices.

4. OFFICERS (§ 25)—QUALIFICATIONS—ELIGIBILITY.

The failure of a county collector to comply with all the details of accounting when he makes his final settlement, where that settlement is not impeached by the state or county, and the collector has delivered all the money in his possession, does not, under Const. art. 2, § 19, and Rev. St. 1909, § 11,446, render him ineligible to hold further office.

In Banc. Original proceeding by the State in the nature of quo warranto, on the information of Elliott W. Major, Attorney General, at the relation of Robert S. Ryors, against Ransom A. Breuer. Ouster denied.

Elliott W. Major, Atty. Gen., and Silver & Dumm, for relator. J. C. Kiskaddon and A. W. Kiskaddon, for respondent.

KENNISH, J.

This is an original proceeding instituted in this court by the Attorney General, by filing an information in the nature of quo warranto, at the relation of Robert S. Ryors, and against the respondent, Ransom A. Breuer.

By stipulation of the parties, the issuance of the preliminary writ was waived, and respondent voluntarily entered his appearance and filed his return to the information. Relator filed a motion for judgment of ouster notwithstanding the return, and an issue of law is thus presented for decision.

It appears from the facts set forth in the information and return, which are either admitted or not denied, that respondent was the collector of the revenue of Gasconade county for the term ending on the first Monday in March, 1911; that relator was the judge of the Thirty-Second judicial circuit of this state for the term ending January 1, 1911; that, while holding the said office of collector, in the year 1910, respondent was regularly nominated and elected to the office of judge of said judicial circuit for a term of six years, commencing on the 1st day of January, 1911; that on the 19th day of December, 1910, the Governor of this state issued to respondent a commission as judge of said circuit for the term of six years; that on the 20th day of December respondent tendered to the Governor his resignation of the office of collector, to take effect December 29, 1910; that the Governor accepted his resignation and appointed as respondent's successor for the unexpired term of said office of collector Henry C. Strack, who duly qualified and assumed the duties of the office on the 31st day of December, 1910; that on the said 31st day of December respondent made final settlement as collector with the county court of Gasconade county, and accounted for and paid over all public money in his hands, transferred to his successor in office all tax books in his custody, and received receipts and a full acquittance therefor; that on the 2d day of January, 1911, respondent qualified as judge of said circuit and entered upon the discharge of the duties of the office, and so continued in the discharge of such duties until the filing of his return herein. The foregoing is deemed a sufficient statement of the facts necessary to a decision of this case.

Relator makes no contention that the respondent was in default in accounting for or paying over all of the public money that came into his hands as collector during his term of office, nor that he failed to surrender and deliver to his successor all of the tax books in his custody as such officer.

Two propositions are advanced by relator as entitling him to the writ of ouster: (1) That respondent was not eligible to be a candidate at the primary election, nor eligible to election at the general election, as judge of said circuit, because at said time he was holding the office of collector, and had not accounted for and paid over all public money for which he was accountable. (2) That respondent, at the time he pretended to qualify and enter upon the duties of the office of judge of said circuit, was ineligible and disqualified to hold the same, for the reason that he had not accounted for and paid over to the state of Missouri and the county of Gasconade all sums on the tax books delivered to him, and with which he was charged and for which he was accountable thereon, and was not finally discharged from all legal liability thereon.

Section 19, article 2, of the Constitution of this state, is as follows: "Collectors, Receivers, etc., in Default, Ineligible to Office.— That no person who is now or may hereafter become a collector or receiver of public money, or assistant or deputy of such collector or such receiver, shall be eligible to any office of trust or profit in the state of Missouri under the laws thereof, or of any municipality therein until he shall have accounted for and paid over all the public money for which he may be accountable." And section 11,446, Revised Statutes of 1909, provides: "No collector or holder of public moneys, or any...