State v. Koeln

• Decision Date: 13 February 1917
• Docket Number: No. 20020.,20020.
• Citation: 270 Mo. 174,192 S.W. 748
• Parties: STATE on Inf. of BARKER, Atty. Gen., v. KOELN.
• Court: Missouri Supreme Court

192 S.W. 748

270 Mo. 174

STATE on Inf. of BARKER, Atty. Gen., v. KOELN.

No. 20020.

Supreme Court of Missouri. In Banc.

February 13, 1917.

Motion to Modify Opinion and Judgment Overruled February 24, 1917.

Original proceedings in quo warranto by the State, on the information of John T. Barker, Attorney General, against Edmond Koeln. Writ issued.

This is a proceeding in quo warranto instituted in this court by the Attorney General to oust respondent from the office of collector of the revenue of the city of St. Louis. The facts of the case, concerning which there is now no dispute, are correctly stated in his brief by the learned Attorney General, as follows:

"The first count of the petition is in the customary form in quo warranto.

"The second count informs the court and alleges: That the respondent received the highest number of votes for the office of collector at a certain election held in St. Louis in April, 1914 (1913), but that the respondent was not elected and could not be legally elected at that time, and that by section 11432 of the Statutes for 1909 it is provided that collectors should be elected at the general election in 1906 and every four years thereafter, but that respondent was not elected in 1906, nor at any general election occurring thereafter. That certain proceedings were taken by the Republican city central committee in October, 1916, in attempting to nominate the respondent for the office of collector, to fill a vacancy then existing in said office for the term ending in March, 1919; and the respondent appeared before the board of election commissioners of said city and urged that there was a vacancy then existing in the office, employed counsel to represent him before the said board, and filed a brief in support of his contention. That thereafter the board of election commissioners caused ballots to be printed for the general election to be held on the 7th day of November, 1916, whereon they printed the name of the respondent as a candidate for the office of collector for the said unexpired term; and at that election he received the largest number of votes cast. That on December 14, 1916, the Governor of the state, Hon. Elliott W. Major, appointed and commissioned Sidney S. May to the office of collector to fill the said vacancy alleged and claimed by the respondent. Mr. May executed the bond required by the statute, in duplicate, in the sum of $750,000, with the United States Fidelity & Guaranty Company as surety thereon, this company being authorized to do business in Missouri and to become surety on such bonds. Mr. May filed one of the duplicate bonds with the state auditor, and procured his certificate of approval thereof. He then presented the other duplicate of said bond to Hon. Henry Kiel, mayor of St. Louis, requesting his approval thereof. (Mayor Kiel refused to approve the bond upon the sole ground, as found by the special commissioner, that he had already approved the bond of defendant Koeln.) Mr. May then offered to file his bond with the city register, the official custodian of such documents in St. Louis, and on the same day, December 16, 1916, he exhibited his commission and the certificate of approval of his bond by the state auditor to the respondent and demanded of him the possession of the office, together with the papers and documents belonging to it. Respondent refused to surrender the office.

"The respondent's return alleges his own qualifications to hold the office, and these are not denied by the relator. He also alleges the fact of a city election in April, 1913, substantially as does the relator, and the fact that he received the highest number of votes and his subsequent qualification and assumption of the duties of the office by him. Respondent then alleges that for a long time prior to October, 1916, a vacancy existed in the office of collector of the revenue in St. Louis, and that he was nominated by the Republican city central committee, no person having filed any declaration for nomination under the primary law; that the Democratic city committee nominated H. C. Menne, and that at the election respondent received the highest number of votes. He then alleges that the election commissioners of said city issued to him a certificate of election for said unexpired term; that on December 8, 1916, he qualified by giving bond, which was duly approved by the mayor and the state auditor, and took possession of the office.

"In answer to the second count the respondent repeats his allegations respecting the city election in April, 1913, and denies that he was not legally elected at said election. He then admits the provisions of section 11432 of the Revised Statutes, admits that he was not elected collector at the general election in 1906, and alleges that he was elected at the general election November 7, 1916, to fill the unexpired term ending March, 1919. He admits that he contended, before the board of election commissioners in St. Louis, that a vacancy existed in 1916, and that he ran for the office for the unexpired term on a nomination by the Republican city central committee. Respondent also admits that the Governor appointed Mr. May on December 14, 1916, but denies that the appointment was valid, and also alleges that Mr. May was ineligible to hold the office because of the fact that he had been appointed a member of the board of election commissioners for a term expiring January 15, 1917."

Frank W. McAllister, Atty. Gen., and John T. Gose and S. P. Howell, Asst. Attys. Gen. (Benjamin H. Charles, of St. Louis, of counsel), for relator. Charles W. Bates and Edward W. Foristel, both of St. Louis, for respondent. Charles H. Daues and William H. Killoren, both of St. Louis, amici curiæ.

WILLIAMS, J. (after stating the facts as above).

If respondent has legal title to the office in question it is by reason of having been duly elected thereto. He presents no other basis for his claim. If he was legally elected thereto then it must have been either at the April, 1913, city election or the November, 1916, general election, because reference is made to no other election.

The legal questions calling therefore for an answer upon the issues of the present record may be summarized broadly as follows:

(1) Was respondent legally elected to this office at the April, 1913, city election for a term of four years?

(2) If the above question is answered in the affirmative, it will determine the case. If that question is answered in the negative, then the next question arising is: Was respondent legally elected at the general election held November 7, 1916?

(3) If the second question is answered in the negative the case is again at an end; but if the second question is answered in the affirmative, then the next question arising is: When, after the November, 1916, election should respondent be permitted to enter upon the discharge of the duties of the office?

These in their order.

I. Was respondent legally elected to this office at the April, 1913, city election? We think not. Both the relator and respondent in their respective briefs agree with us upon this proposition.

Learned attorneys, in behalf of the city of St. Louis, appearing, by leave of this court, as amici curiæ, alone question the soundness of this position. And since the question is one which must be determined by the law, and not by consent or desire of parties, it is but proper that we consider the advice of our friends before passing to the other questions involved.

The view expressed by amici curiæ is that at the time of the 1913 city election (and even yet), the office of collector of the revenue in the city of St. Louis was and is a city office as contradistinguished from a county or state office, and that the law governing the elections held for the purpose of filling such office was contained in the charter of said city, rather than in the general statutes of the state. If the above legal contention is correct respondent would now be entitled to hold the office because the admitted facts show that in pursuance of said charter provisions he was at the April, 1913, election elected to hold this office for a term of four years, which term would carry him safely by the present date of controversy.

In opposition to this view, however, both the relator and respondent in their briefs contend that the collector of the revenue for the city of St. Louis is a state (county) officer, and his election is to be governed by the statutes of the state, and that since the statutes of the state made no provision for an election to be held in April, 1913, a legal election was not then held which would entitle the respondent to now hold the office.

Article 4, § 1, St. Louis Charter of 1876, then in force, was as follows:

"The following named city officers shall be elected by the qualified voters of the city, and shall hold their office for a term of four years, and until their successors shall be duly elected and qualified, viz. a mayor, comptroller, auditor, treasurer, register, collector, recorder of deeds, inspector of weights and measures, sheriff, coroner, marshal, public administrator, president of board of assessors, and the president of the board of public improvements."

Article 2, § 1, of the same charter provides:

"A general election of all elective officers required by this charter, or by any ordinance of this city, shall be held on the first Tuesday in April, 1877, and every four years thereafter, except as otherwise provided in this charter and the scheme."

Section 11432, R. S. 1909 (Session Laws 1905, p. 272), provides:

"The offices of sheriff and collector shall be distinct and separate offices in all the counties of this state, and at the general election in 1906, and every four years thereafter, a collector, to be styled the collector of the revenue, shall be elected in all the counties of this state, who shall hold their office for four years and until their successors are duly...