State v. Dircks

• Decision Date: 29 April 1908
• Citation: 111 S.W. 1
• Parties: STATE ex rel. SCOTT v. DIRCKS, County Clerk.
• Court: Missouri Supreme Court

111 S.W. 1

STATE ex rel. SCOTT v. DIRCKS, County Clerk.

Supreme Court of Missouri.

April 29, 1908.

1. CONSTITUTIONAL LAW — CONSTRUCTION OF CONSTITUTIONAL PROVISIONS.

Constitutional and statutory provisions are to be construed as having prospective operation only, unless a different intent is evident beyond reasonable question.

2. SAME—PROVISIONS EFFECTIVE IN FUTURE— EFFECT.

A constitutional or statutory provision, though not going into actual operation until a future time, may have a potential existence.

3. SAME — CONSTRUCTION OF PROVISIONS OF CONSTITUTION.

Exceptions not embodied in a constitutional provision in terms will not be made by mere implication or construction.

4. SHERIFFS AND CONSTABLES—ELIGIBILITY— CONSTITUTIONAL PROVISIONS.

Const. 1875, art. 9, § 10 (Ann. St. 1906, p. 262), providing that sheriffs should serve two years, etc., and be eligible only four years in any period of six, was repealed in 1906 by an amendment providing for the election of sheriffs in November, 1908, to serve for four years, etc., making them eligible for four years only in any one period. Held, that one elected in 1906 for two years is eligible for election in 1908 for the new four-year term, he holding the office during the two-year term under the old constitutional provision, and not under the new, which was intended to create a new rule, effective in 1908; and hence mandamus will lie to compel the county clerk to file such person's declaration of candidacy for the sheriffship, under Act March 18, 1907 (Laws 1907 [44th Gen. Assem.] p. 264) § 5, requiring a candidate for nomination for a county office at primary election to file a declaration of his candidacy with the county clerk.

Lamm, J., dissenting.

In banc. Mandamus proceedings by state of Missouri on the relation of John W. Scott against C. A. Dircks, county clerk. Peremptory writ granted.

Silver & Brown, for relator. The Attorney General, for respondent.

GANTT, C. J.

This is a proceeding by the relator to obtain a peremptory writ of mandamus requiring the respondent, as county clerk of Cole county, to file the declaration of the relator as a candidate for the office of sheriff of said county in compliance with section 5 of an act of the Forty-Fourth General Assembly, entitled "An act to provide for party nominations by direct vote," approved March 18, 1907 (Laws of Missouri, 1907, p. 264). An alternative writ of mandamus was awarded, and service thereof waived, and the county clerk filed his return thereto. The petition, in substance, states that the relator is a taxpayer, voter, and citizen of Cole county, Mo., and has been for four years past; that at the general election held on the first Tuesday after the first Monday of November, 1906, he was duly elected to the office of sheriff of Cole county for the full term of two years, and until his successor should be elected and qualified; that thereafter he received a certificate to said office and duly qualified as the law required, and has since discharged the duties of the said office. That prior to his election and entering upon the discharge of his duties as such sheriff on January 1, 1907, he had not held said office nor been an incumbent thereof; that at the time of the election at which relator was elected sheriff of said county the following provision of the Constitution of 1875 of this state, to wit, section 10 of article 9 thereof (Ann. St. 1906, p. 262), was in force: "Sec. 10. There shall be elected by the qualified voters of each county at the time and places of electing representatives, a sheriff and coroner. They shall serve two years and until their successors shall be duly elected and qualified, unless sooner removed for malfeasance in office and shall be eligible only four years in any period of six. Before entering on the duties of their office they shall give security in the amount and in such manner as shall be prescribed by law. Whenever a county shall be hereafter established the Governor shall appoint a sheriff and coroner therein, who shall continue in office until the next succeeding general election and until their successors shall be duly elected and qualified." Relator then alleges that at the said general election held in November, 1906, the following amendment to the Constitution, relating to the office of sheriff was adopted by the voters of this state: "Amend by striking out all of section 10 of article 9 of the Constitution of the state of Missouri and adopt in lieu thereof a new section to be known as section 10, article 9, of the said Constitution and to be in words and figures as follows: `Sec. 10. There shall be elected by the qualified voters in each county on the first Tuesday following the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties of their office they shall give security in the amount and in such manner as shall be prescribed by law and shall be eligible only four years in any one period. Whenever a county shall be hereafter established the Governor shall appoint the sheriff and coroner therein, who shall continue in office until the next succeeding general election and until their successors shall be duly elected and qualified.'" That by section 5 of the act of March 18, 1907, candidates at said primary election for nomination for county offices shall, at least 60 days before the date of said primary election, file in the office of the county clerk of their respective counties a declaration of their candidacy, in which each candidate for nomination for a county office shall state "his full name and residence, the office for which he proposes as a candidate, and the party upon whose ticket he is to be a candidate." That said act provides that said declaration so made shall be accepted and filed by the proper official—that is, by the county clerk—in lieu of all other nomination papers required by said act. That relator desiring and intending to become a candidate at the primary election to be held on the first Tuesday in August, 1908, for the office of sheriff of Cole county, did on March 12, 1908, present to the respondent, the county clerk of Cole county, his declaration in writing of his candidacy at said primary election for the office of sheriff of Cole county, and did request the respondent to accept the same and file it in his office; that respondent refused to accept said declaration of relator's candidacy for said office of sheriff and did refuse to file the same, assigning as a reason for his said action that relator, having been elected sheriff of Cole county at the general election held in this state in 1906, and being the present incumbent of said office, is not eligible to said office or competent to hold the same for the term of four years, prescribed by the amendment to the Constitution relating to the office of sheriff, and adopted at the general election in 1906, and hereinbefore fully set out. That the refusal of respondent to accept said declaration of relator's candidacy and to file the same in his said office of county clerk is wrongful, and in contravention of relator's rights in the premises, and of the duty of respondent as county clerk under the provisions of the said act of the General Assembly of this state entitled "An act to provide for party nomination by direct vote," approved March 18, 1907. Wherefore he prays for writ of mandamus requiring respondent to accept and file relator's declaration of his said candidacy for sheriff as aforesaid. In his return the respondent demurs to the petition of relator, and assigns two grounds of demurrer, to wit: First. Said petition and alternative writ fail to state facts sufficient to constitute a cause of action. Second. Said petition and alternative writ, and the matters and things therein stated and set forth, are not sufficient in law and equity to entitle relator to the relief asked for in said petition, or to authorize the issuing of said writ of mandamus. The demurrer admits all the questions of fact in regard to the respective qualifications of the relator and respondent, and the regularity of the declaration of the relator's candidacy, so that the sole question for our consideration at this time is whether the relator, having been elected sheriff of Cole county at the general election held in this state in November, 1906, and being the present incumbent of that office, is precluded by the terms of the constitutional amendment of 1906, in relation to the office of sheriff, and known as section 10 of article 9 of the Constitution of this state, from holding the office as his own successor for the term of four years provided by said amendment, to be filled at the general election to be held in this state in November, 1908.

If relator will be eligible to the office of sheriff to be filled at the next general election to be held in November, 1908, he is entitled to a peremptory writ of mandamus requiring the respondent clerk to accept and file his declaration of candidacy for the office of sheriff of Cole county, as he has no other adequate remedy. The respondent has refused to accept and file said declaration for the sole reason that the relator (Scott) is not eligible to the said office because relator was elected sheriff of Cole county in 1906, and duly qualified as such, and is now the incumbent of said office, and is therefore not eligible or competent to hold the same for the succeeding term of four years prescribed by the constitutional amendment relating to the office of sheriff, adopted at the general election in the year 1906. In other words, respondent insists that the constitutional amendment of 1906 prescribes a condition of ineligibility to the office of sheriff, to wit, that "he shall be eligible only four years in any one period," which applies to ...