State v. Morehead

• Citation: 165 S.W. 746,256 Mo. 683
• Parties: STATE ex rel. FLOWERS v. MOREHEAD et al., County Court Judges.
• Decision Date: 10 February 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 746

256 Mo. 683

STATE ex rel. FLOWERS v. MOREHEAD et al., County Court Judges.

Supreme Court of Missouri.

February 10, 1914.

Rehearing Denied April 2, 1914.

1. HIGHWAYS (§ 91) —COUNTY HIGHWAY BOARD—STATUTES— CONSTRUCTION.

Laws 1913, p. 665, creating in each county a county highway board, composed of three members appointed by the county court to hold office for two years, and providing that, in counties that have or may have a county highway engineer, he shall be ex officio a member of the board, provides for a county highway board of three members to be appointed by the county court, and in addition thereto the highway engineer is a member by virtue of his office.

2. HIGHWAYS (§ 93) — COUNTY HIGHWAY BOARD—OFFICERS—"PUBLIC OFFICER."

An appointee to the position of member of a county highway board, created by Laws 1913, p. 665, is a public officer, within Const. art. 14, § 7, authorizing the Legislature to provide for the removal of officers, and, in the absence of any special provision for the removal of members of the board, a member may only be removed as prescribed by Rev. St. 1909, § 10204 et seq.

3. CERTIORARI (§ 25)—REMOVAL OF OFFICERS —REVIEW—ABSENCE OF OTHER REMEDY.

The action of the county court of a county in removing a member of the county highway board is reviewable on certiorari, where there is no statutory right of appeal or writ of error or other remedy or when the court's action, if judicial in its nature, was beyond its jurisdiction, as defined by Const. art. 6, §§ 1, 36.

In Banc. Certiorari by the State, on the relation of W. B. Flowers, against W. Morehead and others, Judges of the County Court of Linn County, to review the action of the county court in removing relator as a member of the highway board of Linn county. Action of county court quashed.

C. C. Bigger and O. F. Libby, both of Laclede, for relator Flowers. John T. Barker, Atty. Gen., and W. T. Rutherford, of Jefferson City, amicus curiæ. A. W. Mullins, of Linneus, for respondents Wilkerson and Sturtevant.

WALKER, J.

Certiorari to require respondents, the judges and the clerk of the county court of Linn county, to certify to the Supreme Court the record of the proceedings of said county court in the appointment and removal of relator as a member of the highway board of said county.

Under the authority of an act of the General Assembly, approved April 17, 1913 (Laws 1913, p. 665), the county court of Linn county, at an adjourned term held on the 23d day of April, 1913, appointed Frank Dick, F. A. Trumbo, and the relator, W. B. Flowers, as members of a county highway board for a term of two years from the date of their appointment. At its regular February term in 1913, said county court had, under the authority of section 10551 et seq., Rev. St. 1909, appointed one J. M. Black as county highway engineer for a term of one year, who at the time of the adoption of the act of 1913, supra, had qualified and entered upon the discharge of his official duties. Upon the adoption of the act of 1913, the county highway engineer became by its terms, upon the creation of said county highway board, an ex officio member of same.

Upon the appointment of the three members of said board by the county court, they met in compliance with section 3 of said act, and, in conjunction with the highway engineer, organized by the election of F. A. Trumbo as president, and J. M. Black as secretary of said board. At an adjourned term of the county court held June 2, 1913, the following orders were made and entered of record: "It appearing to the court that the appointment of Frank Dick. F. A. Trumbo, and W. B. Flowers, as members of the county highway board, as made by the court on the 23d day of April, 1913, was illegal and without warrant of law, the said appointment is this day ordered revoked." "It is ordered by the court that Frank Dick and F. A. Trumbo be and are hereby appointed members of the county highway commission and that they be commissioned for a term of two years from this date."

On July 16, 1913, relator petitioned this court, setting forth the facts above stated, and asking the granting of a writ of certiorari directed to respondents, requiring them to certify a full record of their proceedings in this matter to this court, that upon said record it might be determined whether the order entered of record in the county court, removing relator from said highway board, should not be quashed and for naught held.

I. The Highway Board.

Section 1 of said act, creating the board and conferring the power of appointment upon the county court, is as follows: "Section 1. County Highway Board to be Appointed—Term.—There is hereby created a county highway board in each and every county in this state which shall be composed of three members. Said members of the county highway board shall be appointed as follows: Three members to be appointed by the county court of said county; the members of said board shall hold their offices for a term of two years from the date of their appointment, and they shall serve without compensation: Provided, that in counties that have or may hereafter have a county highway engineer, he shall ex officio be a member of said board: Provided further, that in counties now having a population of more than 75,000 inhabitants the county highway board shall be composed of the three members of the county court." Laws 1913, p. 665.

Words are sometimes so fittingly used, even in legislative enactments, that an attempted explanation of same tends to obscure rather than clarify their meaning. The act in question is illustrative of this truth.

The terms of the statute are unequivocal; the county highway board is to consist of three members to be appointed by the county court, who are to hold their offices for terms of two years, respectively, from the date of their appointment; and in addition thereto in counties in which a highway engineer has been appointed under the authority of section 10551, supra, such engineer, upon the appointment of such board, becomes a member of same, not by appointment thereto by the court, but by virtue of his office as engineer. If words were needed to render more explicit the meaning of said statute, they are to be found in the concluding provision of section 1, supra, which prescribes that "in counties now having a population of more than 75,000 inhabitants the county highway board shall be composed of the three members of the county court." In view of the preceding provision in regard to the ex officio membership in such boards of the highway engineer, it will scarcely be contended that said board in such counties is not comprised of the three judges of the county court and the highway engineer, where the latter has been appointed.

A construction which would reduce the number of the members of said board in counties of 75,000 inhabitants or less, in regard to which the same general words are used as to the numerical constitution of the board as in counties of more than 75,000 inhabitants, would violate one of the elementals of interpretation in that it would authorize the interpolation of words to define the meaning of a statute otherwise clear and unambiguous.

We are of the opinion, therefore, that such county highway boards as are authorized by the act in question shall, in all counties, consist of three members, to be appointed by the county court, and that the highway engineer, if there be...