State v. Dunn

• Decision Date: 15 February 1919
• Docket Number: No. 21318.,21318.
• Citation: 209 S.W. 110,277 Mo. 38
• Parties: STATE ex rel. McALLISTER, Atty. Gen., v. DUNN.
• Court: Missouri Supreme Court

209 S.W. 110

277 Mo. 38

STATE ex rel. McALLISTER, Atty. Gen., v. DUNN.

No. 21318.

Supreme Court of Missouri, in Banc.

February 15, 1919.

Quo warranto by the State, on the relation of Frank W. McAllister, Attorney General, against John W. Dunn. Writ of ouster ordered.

Frank W. McAllister, Atty. Gen., Clarence P. Le Mire, Asst. Atty. Gen., and Wilfley, McIntyre, Nardin & Nelson, of St. Louis, for relator.

Edward W. Foristel and Wells Blodgett Priest, both of St. Louis, for respondent.

BLAIR, J.

Respondent was deputy collector of the city of St. Louis. He became a candidate for the office of treasurer of that city and received a majority of the votes cast at the election. Respondent held his office of deputy collector until after the November election and until a short time before the term of treasurer began. This is a proceeding to oust him from the office of treasurer, which office he has assumed.

This case involves a construction of section 3756, Rev. St. 1909, which reads thus:

"No sheriff, marshal, clerk, or collector, or the deputy of any such officer, shall be eligible to the office of treasurer of any county."

It is conceded that under the nineteenth clause of section 8057, Rev. St. 1909, section 3756 applies to the city of St. Louis.

Relator's position is that under section 3756 a deputy collector is incapable of being lawfully chosen treasurer. Respondent's contention is that a deputy collector may be elected while still such deputy, and may take the office if he is not a deputy collector at the time he actually assumes the office. The authorities in other jurisdictions hopelessly conflict on the abstract question whether the word "eligible" means "capable of being chosen," or "capable of holding" office. Commentators disagree as to which meaning is supported by the weight of authority. On this question cases are frequently cited which we do not think bear upon the point at all. In State ex rel. v. Smith, 14 Wis. 497, it was held that an alien was incapable of holding office in Wisconsin. In State ex rel. v. Murray, 28 Wis. 96, 9 Am. Rep. 489, it was held that while an alien might not hold office, yet one who had taken out first papers, and was then elected to office, and afterward, prior to entering upon the duties of the office, was naturalized, was lawfully in possession of the position. No statute or constitutional provision was involved. The sole question was whether public policy rendered the relator incapable of being chosen for office, or whether it permitted him to be chosen before taking out his final papers, and then permitted him to assume and hold the office after taking out such papers. There was no real question as to the meaning of any statute or constitutional provision, nor yet as to the meaning of any previously formulated and declared rule. The question was whether public policy required this rule or that. In that case the court formulated the principle. In this case the question is as to the meaning of a rule of policy formulated and enacted into a statute by the Legislature. The question in that case is wholly unlike that in this. The same thing, for the same reason, is true of the following decisions: State et al. v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512; State ex rel. v. Van Beek, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397. Other cases cited are based upon statutory or constitutional provisions which expressly relate to capacity to hold office. Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; State ex rel. v. Fowler, 66 Conn. 294, 32 Atl. 162, 33 Atl. 1005. Other authorities referred to are based upon provisions to the effect, in substance, that "no person shall be a member," etc. Sections 2 and 6 of article 1, and section 3, Fourteenth Amendment to the Constitution of the United States. In some of these and other provisions language is used expressly designating qualifications which must be possessed at the time of election.

It seems obvious that a provision relating solely to holding an office or being a member does not open the way for any decision of a question like that in this case. The same thing is true of provisions expressly referring to qualifications at the time of election.

The courts differ as to the primary meaning of the word "eligible." Some hold its primary meaning is "electable" or "capable of being chosen"; others, that it is "qualified to hold office." Some hold that the word is susceptible of both meanings, and that in each case it is necessary, in accordance with a well-settled canon of construction, to give the word the meaning which will carry out the purpose of the Legislature. Demaree v. Scates, 50 Kan. loc. cit. 278, 32 Pac. 1123, 20 L. R. A. 97, 34 Am. St. Rep. 113; Kirkpatrick v. Brownfield, 97 Ky. loc. cit. 562 et seq., 31 S. W. 137, 29 L. R. A. 703, 53 Am. St. Rep. 422. This seems to us the correct conclusion. To apply to the word "eligible" in every case a fixed meaning without regard to the context, the law in pari materia, the evil to be remedied or averted, would be to overturn vital rules of construction and miss the legislative intent' in each case in which the lawmaking body happened to use the word in another, though legitimate, sense. Upon this question this court has already declared itself. In State ex inf. v. Breuer, 235 Mo. loc. cit. 250, 251, 138 S. W. 515, in a concurring opinion by Judge Valliant, this court, six judges concurring, held that whether the word "eligible," used in a statute, is used with reference to the election or the time of taking office "depends on the context and on the subject." We had before us in that case most of the authorities cited in this. After a re-examination of these and others now brought to our attention, we see no reason for receding from the position taken in that case.

In connection with the original enactment of section 3756, Rev. St. 1909 (see articles 2 and 4, chapter on County Treasurer, R. S. 1835), was enacted a section providing that—

"All collectors, sheriffs, clerks, constables and other persons, chargeable with monies belonging to any courts, shall render their accounts to, and settle with, the county court, at each stated term thereof; pay into the county treasury any balance which may be due the county, take duplicate receipts therefor, and deposit one of the same with the clerk of the county court, within five days thereafter."

The word "courts" is apparently a misprint for "county." It appears as "county" in R. S. 1845, art. 2, c. 41. This section has been carried forward without change....