State v. Rackliffe

• Decision Date: 29 June 1901
• Citation: 164 Mo. 453,64 S.W. 772
• Court: Missouri Supreme Court
• Parties: STATE ex inf. MYLTON, Pros. Atty., v. RACKLIFFE.<SMALL><SUP>1</SUP></SMALL>

64 S.W. 772

164 Mo. 453

STATE ex inf. MYLTON, Pros. Atty., v. RACKLIFFE.¹

Supreme Court of Missouri.

June 29, 1901.

QUO WARRANTO — ABOLITION OF OFFICE — REPEAL OF STATUTE — LEGISLATIVE INTENT.

Rev. St. 1899, c. 91, art. 3, § 5537, creating the office of city engineer, was expressly repealed by Act March 13, 1901; but the latter act did not expressly repeal section 5541 of the former act, prescribing such officer's duties. Subsequently Act March 14, 1901, created a city board of public works, and authorized the appointment by them of a city engineer. This latter act was held unconstitutional. The ordinances of a city for which defendant was elected city engineer in 1899, under Rev. St. 1899, c. 91, art. 3, provided that all city officers should hold their offices for two years, and until their successors were duly appointed and qualified. Held, that on the repeal of Rev. St. 1899, c. 91, art. 3, § 5537, the repeal of section 5541 followed by necessary implication, and that there was no merit in the contention that the office should be continued by virtue of the city ordinances, and the fact that it appeared by the subsequent unconstitutional act that such was the intention of the legislature.

In banc. Appeal from circuit court, Buchanan county.

Action in the nature of quo warranto by the state, on information of James W. Mylton, prosecuting attorney, against J. R. Rackliffe. From a judgment sustaining a demurrer to the return, plaintiff appeals. Reversed.

H. M. Ramey and Stauber, Crandall & Strop, for appellant. Vories & Vories and Brown & Dolman, for respondent.

BRACE, J.

This is an action in the nature of quo warranto by the prosecuting attorney of Buchanan county to oust the defendant from the office of city engineer of the city of St. Joseph, a city of the second class in said county, in which the circuit court overruled a demurrer to the return; and the plaintiff, standing on the demurrer, brings the case here by appeal.

The defendant claims the right to the office by virtue of his appointment thereto under the provisions of article 3, c. 91, Rev. St. 1899, entitled "Cities of the Second Class," section 5537 of which provides that "in all such cities there shall be a city clerk, city engineer, city assessor, city counselor and city comptroller, who shall be appointed by the mayor, by and with the advice and consent 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 or any ordinance of the city." By section 5541 of said article it is further provided that "the city engineer shall superintend the construction of all public works ordered by the common council; shall make out plans, specifications, and estimates thereof and do the engineering and surveying ordered by the city, and perform such other duties as may be prescribed by ordinance." And by section 5548 of the same article it was made his duty, in conjunction with the comptroller, "to open and inspect all bids of contractors for public works, and to approve and safely keep all bonds given by contractors for the faithful performance of public contracts." By the ordinances of the city of St. Joseph it is provided that "all officers of this city, unless otherwise provided by law or ordinance, shall hold their offices for two years, and until their successors shall be duly appointed and qualified, and their terms of office, when not otherwise directed, shall commence on the third Monday in April." Under these provisions the defendant in April, 1899, was duly appointed city engineer, qualified, entered upon the discharge of the duties of such office, and since has continued to hold the same, although his term of office expired on the third Monday in April, 1901, claiming right to hold the same on the ground that no one has ever been legally elected to succeed him therein. This controversy grows out of the following legislation:

By an act of the general assembly approved March 13, 1901 (Sess. Acts 1901, p. 60), entitled "An act repealing sections 5537, 5538, and 5548, of the Revised Statutes of Missouri, 1899, relating to the city officers in cities of the second class, and enacting new sections in lieu thereof, with an emergency clause," it was enacted as follows:

"Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 1. That section 5537 of the Revised Statutes of Missouri be and the same is hereby repealed and the following section enacted in lieu thereof. `Sec. 5537. Other Officers. In all cities there shall be a city clerk, city assessor and city counselor, who shall be appointed by the mayor, by and with the advice and consent 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 article or any ordinance of the city.'

"Sec. 2. That section 5538 of the Revised Statutes of Missouri, 1899, be and the same is hereby repealed and the following section enacted in lieu thereof: `Sec. 5538. City Attorney, Judge of Police Court, etc. There shall also be a judge of the police court, and city attorney, who shall be elected by the qualified voters of said city, to hold their offices for the term of two years; a city auditor and city treasurer, who shall hold their offices for a term of four years; also a city comptroller who shall be elected by the qualified voters of said city at the city election to be held on the first Tuesday after the first Monday in April, 1901, to hold his office for a term of three years, thereafter the term of city comptroller shall be four years;...