State v. Dallmeyer

• Citation: 295 Mo. 638,245 S.W. 1066
• Decision Date: 06 December 1922
• Docket Number: No. 23817.,23817.
• Parties: STATE ex rel. BARRETT, Atty. Gen., v. DALLMEYER.
• Court: United States State Supreme Court of Missouri

245 S.W. 1066

295 Mo. 638

STATE ex rel. BARRETT, Atty. Gen., v. DALLMEYER.

No. 23817.

Supreme Court of Missouri, In Banc.

December 6, 1922.

Original proceeding in the nature of quo warranto by the State of Missouri, on the relation of Jesse W. Barrett, Attorney General, to determine by what right Ferd Dallmeyer holds the office of Inspector of Hotels. Writ quashed.

Jesse W. Barrett, Atty. Gen., and Merrill E. Otis, Asst. Atty. Gen., for relator.

Irwin & Haley, of Jefferson City, for respondent.

ELDER, J.

This is an original proceeding by information in the nature of quo warrants, brought by the Attorney General, on his own relation and in his official capacity, seeking to determine by what right respondent Ferd Dallmeyer holds the office of inspector of hotels.

The information, caption omitted, is as follows:

"Comes now the state of Missouri at the relation of Jesse W. Barrett, Attorney General, and informs the court that on the 27th day of June, 1922, the Honorable Arthur M. Hyde, Governor of Missouri, purporting to act under the authority conferred upon him by section 5888, Revised Statutes of Missouri for 1919, appointed respondent, Ferd Dallmeyer, inspector of hotels and that said respondent thereupon duly qualified and is exercising the powers and duties conferred by section 5890, Revised Statutes of Missouri for 1919.

"Informant states that by an act of the General Assembly of Missouri, approved March 24, 1921, Laws of Missouri, 1921, page 405, said section 5888, Revised Statutes of Missouri for 1919, was repealed and the office of inspector of hotels abolished.

"Wherefore informant states that respondent is unlawfully holding said office of inspector of hotels and prays the court to make an order on respondent requiring him to show by what right or title he is holding said office and attempting to discharge and exercise its powers and duties."

Respondent waived the issuance of the writ, stipulated that the petition of relator should be taken as and for the writ, and made return as follows:

"Comes now Ferd Dallmeyer, respondent in the above entitled cause, and for his return to the writ of quo warranto, heretofore issued herein, admits that on the 27th day of June, 1922, the Honorable Arthur M. Hyde, Governor of Missouri, purporting to act under the authority conferred upon him by section 5888 of the Revised Statutes of Missouri for 1919, appointed respondent inspector of hotels and respondent further admits that he thereupon duly qualified and is now exercising and since the 27th day of June, 1922, has exercised the powers and duties conferred by section 5890 of the Revised Statutes of Missouri for 1919.

"Respondent denies that by an act of the General Assembly of Missouri, approved March 24, 1921, Laws of Missouri 1921, page 405, said section 5888 of the Revised Statutes of Missouri for 1919, was repealed and the office of inspector of hotels abolished.

"Respondent states that the act of the General Assembly of Missouri, aforesaid, approved March 24, 1921, was in words and figures as follows:

"`An act to abolish the office of inspector of hotels and to confer the rights, powers and duties of such officer on the supervisor of public welfare, and to repeal section 5888, Revised" Statutes of Missouri, 1919. * * *

"`Section 1. Abolishing office of Inspector of Hotels—Duties Vested in and Conferred upon. Supervisor of Public Welfare.— The office of inspector of hotels as provided for by section 5888 of chapter 45 of the Revised Statutes of Missouri, 1919, is hereby abolished and all the rights, powers and duties now vested by law in the inspectors of hotels by virtue of the provisions of chapter 45, Revised Statutes of Missouri, 1919, relating to hotels, inns and boarding houses, are hereby vested in and conferred upon the office of supervisor of public welfare.

"`Sec. 2. Conflicting Laws Repealed.—Section 5888, and all laws and parts of laws in conflict herewith are hereby repealed.'

"Respondent says that the said act of the General Assembly of Missouri, approved March 24, 1921, did not become effective for the reason that by its terms and provisions it was to be effective only when the office of supervisor of public welfare should come into existence, but respondent says that the law creating the office of supervisor of public welfare, approved March 24, 1921, appearing in the Laws of Missouri for 1921 at page 589, was suspended by the filing of referendum petitions. Respondent states that the act of the General Assembly purporting to abolish the office of inspector of hotels was, by the suspending of the act creating the office of supervisor of public welfare, also suspended, and that, therefore, section 5888, Revised Statutes of Missouri for 1919, is still in full force and effect.

"Wherefore, respondent states that he is lawfully holding the office of hotel inspector and that the writ of quo warranto is improvidently issued and should be quashed."

Upon the filing of the return, relator moved for judgment on the pleadings.

Such is the case before us. It is one of first impression in this state, and, as far as our investigation discloses, finds no precedent in other jurisdictions.

I.

Relator contends that section 5888, R. S. Mo. 1919, creating the office of inspector of hotels, was" repealed by the act approved March 24, 1921, Laws of Missouri 1921, page 405, and that the office of inspector of hotels was abolished; that since said office does not legally exist, respondent can have no valid right or title thereto and should be ousted therefrom.

By reference to the above-mentioned act of 1921, set forth in full in the return of respondent, it will be noted that the said act abolishes the office of inspector of hotels and vests the rights, powers and duties of such office in the office of supervisor of public welfare. But, by the return of respondent it is shown that the law creating the office of supervisor of public welfare, Laws of Missouri 1921, page 589, likewise approved March 24, 1921, was suspended by the filing of referendum petitions. Respondent therefore argues that the suspension of said act necessarily postponed the effective date of the act repealing section 5888, and, as a corollary, that the abolition of the office of inspector of hotels only becomes operative upon the creation of the office of supervisor of public welfare, which the filing of the referendum petitions had the effect of deferring.

That the Legislature may enact a law to take effect upon the happening of a future event or contingency has long since, and again comparatively recently, been decided by this court. State ex rel. Dome v. Wilcox, 45 Mo. 458; Hall v. Sedalia, 232 Mo. 344, 134 S. W. 650. As said in State ex rel. Dome v. Wilcox, supra, 45 Mo. loc. cit. 464:

"The proposition cannot be successfully controverted, that a law may be passed to take effect on the happening of a future event or contingency. The future event—the happening of the contingency, or the fulfillment of a condition —affords no additional efficacy to the law, but simply furnishes the occasion for the exercise of the power. The law is complete and effective when it has passed through the forms prescribed for its enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which it can act."

If, therefore, it be true that the Legislature may postpone the effective date of a law by an analogy of reasoning it must also follow that the operation, of a statute may be deferred by the invocation of the referendum, for the exercise of legislative power by the people through the referendum is simply a reservation to themselves of a share of the legislature' power. Accordingly, when the act creating the office of supervisor of public welfare was suspended by the filing of referendum petitions, such action necessarily postponed the operation of the act repealing section 5888 for the reasons: (1) That the two statutes are in pari materia and must be considered together. (2) That the abolition of the office of inspector of hotels was, from the face of the act, dependent upon the existence of the successor office...