State v. Donworth

• Decision Date: 22 October 1907
• Citation: 127 Mo. App. 377,105 S.W. 1055
• Parties: STATE ex rel. JOHNSTON v. DONWORTH.
• Court: Missouri Court of Appeals

105 S.W. 1055

127 Mo. A. 377

STATE ex rel. JOHNSTON v. DONWORTH.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

Rehearing Denied December 17, 1907.

1. MUNICIPAL CORPORATIONS — ALDERMEN — QUALIFICATION — RESIDENCE IN WARD.

Rev. St. 1899, § 5911 [Ann. St. 1906, p. 2994], providing that no person shall be an alderman in a city of the fourth class unless he is a resident of the ward from which he is elected, and section 5916 [page 2995], providing that no person shall be elected or appointed to a city office who is not a resident of the city, etc., prescribe qualifications necessary both as to eligibility to election to office and as to holding it after election; and hence an alderman in a city of that class, who changes his residence to another ward, is disqualified to represent the ward from which he was chosen and forfeits his right to the office.

2. SAME — STATUTORY PROVISIONS — LEGISLATIVE POLICY.

In enacting Rev. St. 1899, § 5910 [Ann. St. 1906, p. 2994], providing that cities of the fourth class shall be divided into no less than two wards, and two aldermen elected from each by the qualified voters thereof, the legislative intent was to provide representation by residents of each ward, and to require them to be residents of the ward, not only when elected, but during their terms of office.

Appeal from Circuit Court, Franklin County; R. Steel Ryors, Judge.

Action by the state, on the relation of one Johnston, against William Donworth. Judgment for relator, and defendant appeals. Affirmed.

Pearce & Davis, for appellant. Rowland L. Johnson, for respondent.

GOODE, J.

Defendant appealed from a judgment ousting him from the office of alderman in the Third Ward of the city of Kirkwood, a city of the fourth class. Defendant was elected to that office April 3, 1906, and at the time of his election was a resident of the ward; but on April 26, 1907, he changed his residence into the Second Ward of the city, and has since dwelt there. The information charges that since his change of residence defendant has usurped the office of alderman of the Third Ward. The appeal depends on the construction to be given to section 5911 of the Revised Statutes of 1899 [Ann. St. 1906, p. 2994], which prescribes the qualifications of aldermen of cities of the fourth class, saying no person shall be an alderman unless he is 21 years of age, a citizen of the United States, an inhabitant of the city for one year next preceding the election, and a resident of the ward from which he is elected.

The contention of defendant's counsel is that said section prescribes the qualifications which render a person eligible to be elected to the office of alderman, but not qualifications essential to his continuing to hold the office after he is elected. The qualifications of the latter sort are said to be prescribed in section 5916 of the Statutes, which says all officers elected or appointed to offices under the city government shall be qualified voters, and that no person shall be elected or appointed to any office who shall at the time be in arrears for unpaid city taxes, or forfeiture or defalcation in office, or who is not a resident of the city. It is apparent on the face of section 5916 [Ann. St. 1906, p. 2995] that defendant's contention regarding its interpretation is incorrect. It is true the catch-words of the section are "Requisite Qualifications for Holding Office"; but the body of the section prescribes what qualifications a person shall have in order to be eligible for election or appointment to any office in a city of the fourth class, as well as to hold it afterwards. Section 5911 also prescribes the qualifications of aldermen in such cities, and requires them to be 21 years of age, citizens of the United States, inhabitants of the city for one year preceding the election, and residents of the ward from which they are elected. No doubt, if a person was elected alderman without those qualifications, he might be ousted from office; and thus far the contention of the defendant's counsel that the section prescribes who shall be eligible for election is sound. But the section goes further, and, in our opinion, requires a continuance of those qualifications to entitle one elected alderman to remain in office. If an incumbent should cease to be a citizen of the United States or a resident of the city, it is conceded he would lose his right to hold the office. The...