State v. Schramm

• Decision Date: 01 December 1917
• Docket Number: No. 20358.,20358.
• Citation: 272 Mo. 541,199 S.W. 194
• Parties: STATE ex rel. McDANIEL, Circuit Atty., v. SCHRAMM.
• Court: Missouri Supreme Court

199 S.W. 194

272 Mo. 541

STATE ex rel. McDANIEL, Circuit Atty., v. SCHRAMM.

No. 20358.

Supreme Court of Missouri. In Banc.

December 1, 1917.

Concurring opinion of Walker, J., December 10, 1917.

Concurring opinion of Bond, J., December 12, 1917.

Original quo warranto proceeding by the State, on relation of Lawrence McDaniel, Circuit Attorney for the City of St. Louis, against Frank Schramm. Writ of ouster granted.

This is a quo warranto, instituted by the circuit attorney of the city of St. Louis, to determine the right of respondent to the office of assessor for that city. By the charter of St. Louis, adopted in 1876, the office of assessor in that city was created, and provision was made for filling the same by election thereafter held at intervals of four years. In accordance with this provision of the charter, respondent was elected and installed as such assessor in April, 1913. His term expired in the spring of 1917. Pending the expiration of respondent's term, the city of St. Louis adopted a new charter, providing, among other things, that the office of assessor should, after the expiration of the term of respondent, become appointive, with authority in the mayor of the city to make proper appointment thereto. Pursuant to the provision, the mayor appointed an assessor, who qualified and demanded the office of respondent, whose term had then expired. Respondent, however, obtained an appointment from the Governor on April 16, 1917, and, claiming thereunder, refused to surrender the office, insisting that the Governor had the legal authority to appoint him upon the expiration of his term, by virtue of the provisions of section 11341 of the Revised Statutes of 1909, which respondent claimed made it necessary to elect an assessor quadrennially in the fall, instead of in the spring; that his own election and that of all previous assessors who had been elected in the city of St. Louis since the adoption of its charter in 1876 were invalid.

Spencer & Donnell, of St. Louis, for plaintiff. Wilfley, McIntyre & Nardin, of St. Louis, for respondent. Charles H. Daues, of St. Louis, amicus curiæ.

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

I. Since the adoption of the Constitution in 1875, the city of St. Louis, by virtue of the provision of that instrument, has become a city distinct from the four classes of cities into which all the other cities of the state are divided by the Constitution. It has become, also, the possessor of a distinct charter, the creation and adoption of which was provided for by article IX, §§ 20, 22, 23, and 25, of the Constitution of 1875. That instrument further provided, upon the adoption of such charter and the accompanying scheme of separation from the county of St. Louis, that the provisions of the new charter should supersede and take the place of all special laws previously applicable in the former territory of St. Louis county, then added to that city by the act of separation, and the previous charters and amendments thereto of the city of St. Louis. Id. § 20. It further provided that the charter of St. Louis, to be adopted in virtue of its authority, should only be amended in the manner pointed out in that instrument. Id. § 22; Laws 1901, p. 263; Laws 1905, p. 320; St. Louis v. Dorr, 145 Mo. loc. cit. 477, 41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575, and cases cited. Recognizing, however, that the territory of the municipality thus authorized, although separated from the county of St. Louis, would continue under the control of the future Legislatures of the state of Missouri in all respects not otherwise provided by the Constitution, an express affirmance of such legislative authority was inserted in the provisions of the Constitution. Id. § 25. The city of St. Louis is the only one in the state which by name is authorized by the Constitution to exercise the specific powers granted to it by that instrument. Id. § 20. A general enabling act was, however, inserted, to embrace other cities which, although not named, should fall within a constitutional class. Id. § 16. Cities thus constitutionally chartered form classes distinct and separate from the four divisions prescribed by the organic law (Id. § 7), and their respective charters have all the efficacy of special grants by the Legislature. State ex rel. v. Mason, 153 Mo. loc. cit. 52, 54 S. W. 524; Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723; State ex rel. v. Mason, 155 Mo. 486, 55 S. W. 636, affirmed in State ex rel. v. Roach, 258 Mo. loc. cit. 565, 167 S. W. 1008.

The new municipality thus organized adopted, by the vote of the people, a charter which provided a complete plan for the government of the city in all of its departments, and for the election of officers necessary to put such plan into practical operation. No department of the city government was more essential to its sustenance and vigor than that providing a basis for the collection of its revenues. The officer charged with performance of these duties is the assessor of taxes, nine-tenths of which belong to the city of St. Louis exclusively, and without which it could not exist. Incidentally, and as a part of his duties, his assessment includes a comparatively insignificant revenue for the state at large. Previous to the adoption of the charter, his election was provided for by laws specially applicable to the county of St. Louis. Laws 1871-72, p. 88, § 21. Upon the adoption of the new charter, that law was substituted by the following provisions: Scheme and Charter, art. V, § 15; Scheme and Charter, art. IV, § 1; Scheme and Charter, art. I, § 8.

The new officer, substituted by the charter for the performance of the duties of the assessor of St. Louis county, was designated as "the President of the Board of Assessors." His office was declared by the scheme and charter to be a "city office," and under the control of the city government, and he was required to perform all his duties "in accordance with the general laws," and his qualifications and duties were specifically prescribed. Scheme and Charter, art. V, §§ 17, 18, et seq. The date of the elections of the president of the board of assessors and other elective officers designated in the scheme and charter was fixed by that instrument to begin on the first Tuesday in April, 1877, and every four years thereafter. Scheme and Charter, art. II, § 1. Under the express language of the Constitution, the charter requirements in these respects superseded and took the place of the previous special laws on the subject, applicable to the county of St. Louis. Const. 1875, art. IX, § 20. In an accordant spirit, the Legislature of the state has never undertaken in any act to alter or control the election of the president of the board of assessors (the successor by charter to the previous assessor of St. Louis county), but in every intervening act has expressly stated that such act providing for the election of an assessor in other counties of the state, should not include the city of St. Louis. R. S. 1879, § 6678; R. S. 1889, § 7524; R. S. 1899, § 9137; R. S. 1909, § 11341. And in the last of such enactments (the one under review in this case) has explicitly excepted the city of St. Louis. It is under this enactment that respondent claims, after having served four years by election, according to the charter, in the spring of 1913, that he is now entitled, after the expiration of his term, to hold over as appointee of the Governor, because his own and all prior elections for 40 years were invalid, in that they were held in the fall instead of the spring, as was provided by the charter in fixing the date and the beginning of the terms of all the officers for the government of the city of St. Louis. The sole basis of his contention (the burden of establishing which, in a proceeding like the present, is cast upon him) is the following statute:

"Election of Assessor. At the general election in the year one thousand nine hundred, and every four years thereafter there shall be elected by the qualified voters of the several counties in this state a county assessor, who shall hold his office for a term of four years, and until his successor is elected and qualified, unless sooner removed from office; and no person elected to said office of assessor shall hold said office more than two successive terms: Provided, that this section shall not apply to the city of St. Louis." R. S. 1909, § 11341.

As to this statute, the contention of respondent is that the proviso thereto is unconstitutional and void; and, if the proviso be held unconstitutional, then the remainder of the statute would be at once extended and become an operative law which would embrace the territory of the city of St. Louis excluded by the proviso, as well as every other portion of the state. Or, to put the matter in another form, the position of respondent is: First, that the proviso of the above statute is unconstitutional; second, upon that assumption, he then contends that the portion of the act above the restrictive terms of the proviso at once operated to include the territory of the city of St. Louis which was excluded by the proviso; whereupon the act, with its specific and express purpose thus defeated, became, by the stretching of its terms, a law fixing the date of the election of assessor of the city of St. Louis, the same as that for the general election of state officers, instead of the date provided in the scheme and charter. If there is any valid ground for the contention that the proviso of the above act is unconstitutional (not now necessary to be ruled), it would still be impossible, either in reason or upon authority, to sustain the second position affirmed by respondent, i. e., that the annulment of the proviso would enlarge the territory subject to the act. As this latter contention is decisive of the matter presented, it will be discussed first.

What would be the effect in law of a holding that the proviso...