State v. Brown

• Citation: 274 S.W. 965
• Decision Date: 15 June 1925
• Docket Number: No. 15353.,No. 15352.,15352.,15353.
• Parties: STATE ex inf. HULEN, Pros. Atty., ex rel. McDONNELL v. BROWN.
• Court: Court of Appeal of Missouri (US)

274 S.W. 965

STATE ex inf. HULEN, Pros. Atty., ex rel. McDONNELL v. BROWN.

No. 15352.

No. 15353.

Kansas City Court of Appeals. Missouri.

June 15, 1925.

Rehearing Denied June 29, 1925.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Separate quo warranto proceedings by the state of Missouri, ex inf. Ruby M. Hulen, Prosecuting Attorney, on the relation of Emmett McDonnell, individually and as Mayor of the City of Columbia, against Claude Brown and against J. D. Barnett, respectively. Judgments of ouster, and defendants appeal. Reversed.

McBaine & Clark, Jas. E. Boggs, and Paul M. Peterson, all of Columbia, for appellants. Harris & Price and W. M. Dinwiddie, all of Columbia, for respondents.

ARNOLD, J.

These are quo warranto proceedings to remove appellants from the offices of chief engineer and secretary, respectively, of the water and light department of the city of Columbia, Boone county, Mo. It was stipulated by relator and respondent in the two cases that the bill of exceptions, including the transcript of the evidence, the agreed statement of facts offered in evidence, exceptions to the rulings of the court, motions filed and rulings thereon, together with all the proceedings in each case, may be taken as and for the bill of exceptions in each, in so far as the matter shown therein should be applicable, and that one joint bill of exceptions should be taken and filed in both cases.

In each case the action was instituted July 2, 1924, by information filed on the part of the prosecuting attorney of said county, to oust appellants from the respective offices of chief engineer and secretary of the water and light department of the city of Columbia. The water and light plant of the city is municipally owned, and, by section 862 of the Revised Ordinances of said city for the year 1916, there was created the office of chief engineer of said department, and by section 865 the duties of such officer are defined. Likewise under section 867 of said ordinances there was created the office of secretary of said department, and section 868 defines the duties of such secretary. The ordinances provide that each of said officers shall be appointed by the mayor, by and with the advice and consent of the council, at the first meeting of the council in April each year, and that they shall hold their offices for a term of one year, or until their successors are duly appointed and qualified.

The information, in each case, sets out the necessary formal matters, and then charges that appellants, on or about the ________ day of June, 1924, did unlawfully enter upon, usurp, use, and exercise, and from said date have continued unlawfully to usurp, use, and exercise, and do now unlawfully usurp, use and exercise, the said office of chief engineer and secretary, respectively, of the water and light department of said city, without any legal warrant, grant, or right whatsoever, and that said appellants claim, or pretend to claim, without legal warrant or right, said offices, and to have, use, and enjoy the rights, privileges, and franchises belonging and appertaining to" the same, without legal warrant, grant, or right, and in contempt of, and to the great damage and prejudice of, the authority of the state of Missouri and of the city of Columbia, and in contempt of the mayor of said city, who alone has the right of appointment of said officers. Upon the filing of the information in each case, process was duly served.

On July 7, 1924, the appellants answered, each setting up his title and claim to the office Brown by reason of his appointment thereto on June 4, 1923, by Emmett McDonnell, relator, while mayor of said city, and also by reason of his appointment on June 12, 1924, by Graves, acting mayor as president pro tem. of the council; and Barnett by reason of his appointment by James Gordon, mayor, on April 17, 1922, and also because of his appointment on June 12, 1924, by Graves, acting mayor as president pro tem. of the council.

The cases were tried together on an agreed statement of facts. Columbia is a city of the third class, operating under statutory charter. In April, 1923, Emmett McDonnell, relator herein, was elected mayor of said city for a term of two years. Thereafter, on the 4th day of June, 1923, he appointed Claude Brown chief engineer of the water and light department, the appointment was duly confirmed by the council, and the appointee qualified. J. E. Barnett was appointed secretary of said department on April 17, 1922, by James Gordon, the duly elected and acting mayor of said city. Both of these appointments were made for periods of one year, or until their successors were duly appointed and qualified. It is agreed that no successor to Barnett had been duly appointed and qualified, and it is claimed by appellant that Barnett was entitled to the office, even though the appointment made June 12, 1924, was invalid.

In May, 1924, the city council passed an ordinance increasing the salary of the chief engineer to $275 per month, and that of the secretary to $200 per month, and, after the measure was vetoed by the mayor, it was again passed by the council, over such veto. The charter under which the city was operating (section 8234, R. S. 1919) prevented the incumbents from taking advantage of the salary increase without a new appointment. On June 7, 1924, Mayor McDonnell left Columbia for a trip to Texas, and returned on the evening of June 13, 1924. In his absence F. L. Graves, president pro tem. of the council, called a special meeting of that body for June 12, 1924, to act upon the appointment of chief engineer and secretary of the water and light department. Pursuant to a notice of said call, all the councilmen were present, 8 in number. At this meeting Graves appointed the incumbents, Claude Brown to be chief engineer, and J. E. Barnett secretary, of the water and light department, each for a period of one year, and until their successors were appointed and qualified. A roll call on the confirmation of said appointments resulted in 5 councilmen viva voce voting "Aye" and 3 similarly voting "No." Graves, presiding, voted "Aye." On the following day both appointees took the oath of office required by law, and a commission was issued to each, signed by Graves as acting mayor. Barnett furnished the bond required of him; no bond being required of Brown under the law.

It is agreed that Brown, from the time of his first appointment in June, 1923, to the bringing of this suit, was actively engaged in the performance of the duties of his appointment, that he had not been removed from office, and that no other person had been appointed to said office. And the same is agreed as to Barnett from the time of his appointment by Mayor Gordon in April, 1922.

Upon the agreed statement of facts and the evidence introduced at the trial, the court entered a judgment of ouster against both appellants, therein declaring both offices to be vacant. Motions for new trial and in arrest were unavailing, and these appeals were perfected.

The first charge of error presented on appeal attacks the propriety of the judgment of ouster in each case. It is insisted that the appointment of Brown on June 4, 1923, and of Barnett on April 17, 1922, entitled them to the rights and privileges of their respective offices until their successors should be duly appointed and qualified, and, no successors having been appointed, the judgments of ouster were improperly entered. It is agreed that no successors have been appointed other than appellants, and that, in pursuance to those appointments, appellants duly entered into the performance of their duties, after having qualified, that they were performing such duties at the date of the trial, and that these appointments entitled them to hold the offices until their successors were duly appointed and qualified.

The law is well settled that, where a public officer is elected or appointed to hold office for a definite period, and until his successor is appointed or elected and qualified, failure to appoint or elect a successor at the end of such period does not work a vacancy. State ex rel. Lusk, 18 Mo. 333; State ex rel. Stevenson v. Smith, 87 Mo. 158. It follows that the incumbent properly holds until his successor is elected or appointed and qualified, and it is then only that his term expires. State ex rel. Robinson v. Thompson, 38 Mo. 192; State ex rel. v. Ranson, 73 Mo. 78.

The law...