State v. Lund

• Decision Date: 19 February 1902
• Citation: 167 Mo. 228,66 S.W. 1062
• Parties: STATE ex rel. CROW, Atty. Gen., v. LUND.
• Court: Missouri Supreme Court

66 S.W. 1062

167 Mo. 228

STATE ex rel. CROW, Atty. Gen., v. LUND.

Supreme Court of Missouri.

February 19, 1902.

QUO WARRANTO — OFFICER — TERM — HOLDING OVER.

1. Respondent was appointed city comptroller of Kansas City, April 17, 1899, under the charter, art. 4, § 14, providing that there shall be such an officer, who shall be appointed and hold the office for two years, unless sooner removed, provided that the term of the one first appointed under the charter shall be one year, and appointments thereafter shall be made at the beginning of the second year of the mayor's term. Const. art. 14, § 5, provides that, "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official term, and until their successors shall be duly elected or appointed and qualified." No successor of respondent had been appointed when the attorney general instituted proceedings of quo warranto more than two years after respondent's appointment. Held, that the provisions of the charter fixing the term at two years, with no provision for holding over, and fixing the time when appointments shall be made, are "contrary provisions," within the meaning of the constitution, and that respondent's right to the office ceased at the expiration of the two years, though no successor had been appointed.

2. Const. art. 14, § 5, providing that, in the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official term, and until their successors shall be duly elected or appointed and qualified, applies to the officers of a municipality.

3. The phrase "any contrary provision" refers to and includes a provision contained in the law creating an office, and is not restricted to other constitutional provisions.

4. Where the term of an appointive officer is fixed by law, and he is given no right to hold over until his successor is appointed, the facts that it has been the custom of his predecessors to so hold over, and that inconvenience would result from the office being vacant, are no defense to a proceeding by the state in the nature of quo warranto.

Robinson, J., dissenting.

In banc. Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Quo warranto by the state of Missouri, on the relation of Edward C. Crow, attorney general, against Hans Lund. From a judgment for defendant, plaintiff appeals. Reversed.

F. M. Black, Atty. Gen., and Fyke, Yates, Fyke & Snyder, for appellant. Sanford B. Ladd, for respondent.

BURGESS, C. J.

This proceeding was begun ex officio by the attorney general in the circuit court of Jackson county, Mo., to oust respondent, Hans Lund, from the office of city comptroller of Kansas City, Mo. There was judgment for respondent, from which plaintiff appeals. Respondent was, on the 17th day of April, 1899, by and with the advice and consent of the common council of Kansas City, Mo., appointed by its then mayor, James M. Jones, city comptroller for said city. The appointment was made under section 14, art. 4, of the charter of the city, which is as follows: "There shall be a city clerk, city assessor, city counselor, city comptroller and city physician, who shall be appointed by the mayor, by and with the advice and consent of the upper house of the common council, and shall hold their office for the term of two years, unless sooner removed, and who shall perform such duties as may be prescribed by this charter or any ordinance of the city: provided, however, that the appointments first made under this charter after the general city election of 1890 shall be for one year only, so that the appointments made thereafter shall be made at the beginning of the second year of the mayor's term." No one has ever been appointed and confirmed as the successor of respondent, and his contention is that, having been appointed for a term of two years, he holds over until his successor is appointed and confirmed.

It was held in People v. Tieman, 8 Abb. Prac. 359, and in People v. Tieman, 30 Barb. 193, and later by the supreme court of the United States in the case of Badger v. U. S., 93 U. S. 599, 23 L. Ed. 991, that by the common law, and, in most of the states, when the term of office to which one is elected or appointed expires, his power to perform his duties ceases; that this is the general rule. In this state, however, if the common-law rule be as stated in Badger v. U. S., supra, it does not apply, with the exception as to judicial officers and members of the legislature, and, in the absence of words indicating that the officer is to hold over until his successor is elected or appointed and qualified, "It is sometimes a matter of doubt whether or not the incumbent can hold over. * * * Sometimes, however, where words of holding-over import are omitted, it may remain doubtful whether such a right was intended to be conferred; in which case the prevalent rule of construction in this country appears to be that, if no restrictive words be used, — no terms expressly or impliedly prohibiting holding over, — then such continuance in official power and life is permissible and valid, until a successor be chosen, etc." State v. Perkins, 139 Mo. 106, 40 S. W. 650. The same rule is announced in Dill. Mun. Corp. (4th Ed.) §§ 219, 220; Tied. Mun. Corp. § 81; Mechem, Pub. Off. § 397; and in Throop, Pub. Off. §§ 323, 325. In almost all of the states it is expressly declared, in constitutional or by statutory provision, that all officers shall hold over until their successors are elected, or appointed and qualified, and, even when there is no such provision, as a rule they do so; but where there is a constitutional or statutory restriction expressed or implied to the contrary that rule does not obtain, and the term of office fixed by law expires at the end of the term, and, although the officer may hold over after the expiration of his term, he is thereafter de facto an officer (State v. Smith, 87 Mo. 158; Robb v. Carter, 65 Md. 321, 4 Atl. 282), and his acts cannot be called in question in a collateral proceeding. Of the adjudications relied upon by defendant, the following were proceedings in which the right of some officer to hold over was collaterally called in question: Wier v. Bush, 4 Litt. 430; McCall v. Manufacturing Co., 6 Conn. 428; Tuley v. State, 1 Ind. 500; Bath v. Reed, 78 Me. 276, 4 Atl. 688; People v. Oulton, 28 Cal. 44; City of Wheeling v. Black, 25 W. Va. 266. State v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663, is also relied upon by defendant, but in that case the organic law of that state, upon which the decision is bottomed, expressly provides that, "Whenever it is provided in this constitution or in any law which may be hereafter passed, that any officer, other than a member of the general assembly, shall hold his office for any given term, the same shall be so construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified." So that it is perfectly apparent from that provision of the constitution that there was no escape from the conclusion reached by the court; that is, that all officers in that state hold over after the expiration of their terms until their successors are elected, or appointed, as the case may be, and are qualified. People v. Blair, 82 Ill. App. 570, is another case relied upon by defendant. That was a direct proceeding by quo warranto against the defendant Blair to test his right to hold and execute the office of city marshal of the city of Marengo, which it was averred he had usurped without right, and it was held that municipal officers appointed or elected for a fixed term hold over till the election or appointment and qualification of their successors, unless a contrary legislative intent is manifest, and, as no such contrary legislative intent appears in the general act for the incorporation of cities, that the incumbent, Dunwoody, held over until his successor was elected, or appointed and qualified. Now it is expressly provided by the section of the charter quoted that the "city clerk, assessor, counselor, comptroller, and city physician, shall hold their respective offices for the term of two years, unless sooner removed, * * *: provided, the appointments first made under the charter after the general city election of 1890, shall be for one year only, so that the appointments made thereafter shall be made at the beginning of the second year of the mayor's term"; thus by restrictive words fixing the tenure of the office at two years, and at a definite and fixed time. But even if not so expressed, it is clearly implied from the language used, that the officers named shall hold their offices for two years only from the date of their appointments, and, "that which is implied in a statute is as much a part of it as what is expressed." Suth. St. Const. § 334.

By section 24 of the charter of Kansas City all officers of the city, including the mayor, are required to be elected at an election to be held for that purpose on the first Tuesday after the first Monday in April every two years, while the appointment of all officers first made under the charter after the general city election of 1890 was for one year only; and the appointments made thereafter were required to be made at the beginning of the second year of the mayor's term. Section 14, supra. The object of having the elective officers elected at one time, and the appointment of the appointive officers at another time, evidently was that the city administration might not be embarrassed in the conduct and management of its affairs by too many inexperienced officers. Besides, if the terms of the appointive officers do not expire at the expiration of two years from the...