State v. Gibson

• Citation: 195 Mo. 251,94 S.W. 513
• Court: United States State Supreme Court of Missouri
• Decision Date: 30 March 1906
• Parties: STATE ex rel. BURNS v. GIBSON.<SMALL><SUP>*</SUP></SMALL>

94 S.W. 513

195 Mo. 251

STATE ex rel. BURNS v. GIBSON.^*

Supreme Court of Missouri.

March 30, 1906.

1. CONSTITUTIONAL LAW — SELF-EXECUTING PROVISIONS.

Const. art. 9, § 8, providing that the General Assembly may provide by general law for township organization under which any county may organize, when a majority of the legal voters of the county voting at any general election shall so determine, etc., is not self-executing, but needs legislation to be put in operation.

2. TOWNS — TOWNSHIP ORGANIZATION — VALIDITY —CONSTITUTIONAL LAW.

Rev. St. 1889, § 8427, providing that where a majority of the legal voters of a county, voting at a general election, for and against township organization, are for such organization, the county shall be governed by the provisions of the statute relating to township organization, is in conflict with Const. art. 9, § 8, authorizing the General Assembly to provide by law for township organization under which any county may organize "whenever a majority of the legal voters thereof, voting at any general election, shall so determine," since the Constitution authorizes the Legislature to provide for the adoption of the township law by the vote of a majority of the voters of the county voting at any general election, while the statute provides for the adoption of the law by the vote of a majority of those voting at the election on the question of the adoption of the law.

Gantt, J., dissenting.

In Banc. Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Quo warranto, by the state, at the relation of Thomas P. Burns, prosecuting attorney, against M. L. Gibson. From a judgment for defendant, the relator appeals. Reversed.

T. M. Bresnehen and H. K. & H. J. West, for appellant. O. F. Libby, C. C. Bigger, and A. W. Mullins, for respondent.

BURGESS, J.

This is a proceeding in the nature of quo warranto, begun in the circuit court of Linn county by Thomas P. Burns, the prosecuting attorney of said county, against the respondent, M. L. Gibson, the purpose of which is to oust him from the office of township clerk and ex officio assessor of Locust Creek township in said county, which, it is charged in the petition, he has since the 1st day of May, 1899, unlawfully usurped, held, used, and exercised, when in truth and in fact there was, and is now, no such office as township clerk and ex-officio assessor of Locust Creek township in said county. Respondent made return to the alternative writ issued on said petition, as follows: "Now at this day comes the defendant, M. L. Gibson, and for his answer to the information filed herein by Thomas P. Burns, prosecuting attorney of Linn county, Mo., and for his return to the writ issued by said court on said information, states: That heretofore, to wit, on the 7th day of July, 1880, the county court of said Linn county submitted to the qualified voters of said Linn county at the general election to be held in said Linn county on Tuesday, the 2d day of November, 1880, the question as to the adoption of the township organization law in and for said county; and that at said general election held on the day last aforesaid the qualified voters of said Linn county duly adopted said township organization law, at which election there were cast for the adoption of said township organization law, 2,960 votes, and against the adoption of said law, 688 votes, and that by reason of the adoption of said township organization law the same became operative and in effect within and for said Linn county, on and after the 1st day of April, 1881, as provided by law; and that on the said first Tuesday of April, 1881, an election for township officers was duly held in the various townships in said Linn county, and the persons elected to the township offices at said election duly qualified and discharged their respective duties for and during the term for which they were elected. That ever since said township organization law was adopted, and the first township officers were elected under and in pursuance of it, said Linn county has been governed by said law, and still is governed by the same. That Locust Creek township, mentioned in said information and writ, is one of the municipal townships in said county, and that at the township election held within and for said township, held on the last Tuesday of March, 1899, the day appointed by law therefor, the said defendant, M. L. Gibson, was duly elected to the office of township clerk and ex officio township assessor in and for said Locust Creek township, for the term of two years next thereafter, that said defendant duly qualified as such officer and entered upon the discharge of his duties thereof, and since his said election and qualification he has held such office and discharged the duties thereof, and still holds the same. That when he was so elected he was a male citizen and resident of said township and a legal and qualified voter therein, and in all respects qualified to hold said office and discharge the duties thereof. Defendant further answering denies each and every allegation and statement in said information contained, and every recital thereof in said writ not hereinbefore specifically admitted to be true." A reply was filed denying all allegations in the return. The trial resulted in the dismissal of the proceedings and judgment accordingly. Relator appeals.

The facts, briefly stated, are substantially as follows: On July 7, 1880, the county court of Linn county, on the petition of 100, and more, legal voters of said county, made and entered of record an order submitting to the qualified voters of said county, at the general election to be held in said county on the first Tuesday in November, 1880, the question of township organization, as provided by law. And at said general election the whole number of votes cast in said Linn county was 4,227, and on the question of township organization there were for township organization 2,960 votes and against township organization 688 votes. There was therefore, of all the votes cast in the county at said election, a majority of 1,267 in favor of the adoption of the township organization law. That on the first Tuesday in April, 1881, an election for township officers was duly held in the various townships of said Linn county, and the persons, elected to the township offices as said election qualified and discharged their respective duties for the term for which they were elected. That since said first...