State v. Schweitzer

• Decision Date: 05 January 1924
• Docket Number: No. 24781.,24781.
• Citation: 258 S.W. 435
• Parties: STATE ex inf. BARRETT, Atty. Gen., ex rel. OAKLEY v. SCHWEITZER.
• Court: Missouri Supreme Court

258 S.W. 435

STATE ex inf. BARRETT, Atty. Gen., ex rel. OAKLEY v. SCHWEITZER.

No. 24781.

Supreme Court of Missouri, in Banc.

January 5, 1924.

Motion for rehearing overruled February 11, 1924.

Proceeding in quo warranto by the State of Missouri, on information of Jesse W. Barrett, Attorney General, at the relation of Ernest F. Oakley, Jr., to oust Albert L. Schweitzer from the office of prosecuting attorney for the St. Louis Court of Criminal Correction. Writ of ouster denied.

The relator's "Points and Authorities" were as follows:

The assignments in the demurrer to the answer are well taken:

(1) The local law of 1865 (Laws 1865-66, p. 78), creating the court in question, provides for filling vacancies in this office as in cases of circuit attorneys (R. S. 1919, § 13823), and those vacancies are to be filled "until the next regular election" (R. S. 1919, § 782), and until a successor is "duly elected or appointed and qualified" (R. S. 1919, § 9168 and Const. art. 14, § 5).

Those statutes enact, as to the court in question, an exception in the general law otherwise applicable to "any state or county office originally filled by election." R. S. 1919, § 4786; State v. Amick, 247 Mo. 271, 152 S. W. 591; State ex rel. v. Straat, 41 Mo. 58.

(2) Local or special laws are of paramount effect to general laws on the same subject ("in pari materia"), since the former indicate such legislative intent, unless a different intent is shown by the more general legislation. Interurban Ry. Co. v. Light Co., 277 Mo. 615, 210 S. W. 361; Deters v. Renick, 37 Mo. 597; State ex rel. v. McDonald, 38 Mo. 529; Railroad Co. v. Cass Co., 53 Mo. 17; State v. De Bar, 58 Mo. 395; Manker v. Faulhaber, 94 Mo. 430, 6 S. W. 372; State ex rel. v. Hostetter, 137 Mo. 636, 39 S. W. 270, 38 L. R. A. 208, 59 Am. St. Rep. 515.

(3) "Until the next general [or "regular"] election" is the limit of terms to fill vacancies in the offices of judges, clerks, and attorneys of the court in question, alike. R. S. 1919, § 13823 (all); section 2374 (judges); section 2111 (clerks); section 782 (prosecuting attorneys).

The "long," or full, term of four years for the prosecuting attorney of this court in question begins the 1st Monday of January, 1890, and every four years thereafter. R. S. 1919, §§ 702, 730.

As to judges and clerks, it has often been held that a "short" term (th fill the unexpired term of the vacancy) must be filled by election and by qualification of a successor, before the appointed incumbent is to close his service. State v. Amick, 247 Mo. 271, 152 S. W. 591; Aiken v. Sidney Co., 197 Mo. App. 673, 198 S. W. 1139; State v. Perkins, 139 Mo. 106, 40 S. W. 650; State v. Lentz, 50 Mont. 322, 146 Pac. 932; State v. Roach, 269 Mo. 500, 192 S. W. 745; State v. Blakemore, 104 Mo. 340, 15 S. W. 960.

The principles of those decisions are as applicable to the case at bar as to the facts therein described.

(4) When a vacancy in this office is filled by appointment "until the next regular election." and there is a full term to follow (as, in this office, by sections 702 and 730), then there should be two terms (a "short" and "long" term) filled by that election, which was not done in the case at bar, thus leaving relater in the office until a successor be duly elected and qualify. See decisions cited to point 3. State ex rel. Kreiter v. Street, 41 Mo. 58 (a quo warranto against the assistant circuit attorney); State ex rel. v. Kehoe, 49 Mont. 582, 144 Pac. 162; Sweeney v. State, 23 Ariz. 435, 204 Pac. 1025.

(5) The designation of respondent on the ballot was not good for the "long" term beginning January 1, 1923 (as mentioned in R. S. 1919, § 702). If good at all, it could only be for the first (or "short") term, to be first filled-by election, under the statutes cited. But, as there were two terms (one "short" and the other the "long" or four years' term), both of which should have been filled by the election November 7, 1922, the omission to designate those terms makes the attempted election, claimed by respondent, null and void for uncertainty. Miller v. Milligan, 12 Phila. (Pa.) 605; Appeal of Milligan, 96 Pa. 222; Wilson v. Blake, 139 Cal. 449, 147 Pee. 129, Ann. Cas. 1916D, 205; Edes v. Haley, 94 Wash. 236, 132 Pac. 50; Page v. Kuykendall, 131 Ill. 319, 43 N. E. 1114, 32 L. R. A. 656; In re Gilleland, 96 Pa. 224; Montgomery v. O'Dell, 67 Hun, 169, 22 N. Y. Supp. 412; Com. v. Clark, 249 Pa. 109, 94 Atl. 473; Remster v. Sullivan, 36 Ind. App. 385. 75 N. E. 860; Chamberlin v. Hartley, 152 Pa. 544, 25 Atl. 572; State v. Griffey, 5 Neb. 161; State v. Chambers, 20 Ohio St. 336; 10 A. & E. Ency. L. (2d Ed.) 726; McCrary, Elections (4th Ed.) §§ 532, 541.

(6) If Mr. Schweitzer's candidacy on the Republican ballot was good, as applied to the first or "short" term, to fill the vacancy of the original term of Mr. Sidener, then Schweitzer cannot now qualify, for that first (or short) term of the old original term has expired, and it is now too late, as he did not attempt to qualify till January 1, 1923, the date for beginning the full four years' term, as his answer admits. Com. v. Hanley, 9 Pa. 513, approved in State v. Seay, 64 Mo. 100, 27 Am. Rep. 206; State ex rel. v. Smith, 152 Mo. 512, 54 S. W. 221, 47 L. R. A. 560; State v. Metcalfe, 80 Ohio St. 244, 88 N. E. 738; Kimberlin v. State, 130 Ind. 120, 29 N. E. 773, 14 L. R. A. 858, 30 Am. St. Rep. 208; State v. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539; People v. McIver, 68 N. C. 467; Lawrence v. Hanley, 84 Mich. 399. 47 N. W. 753.

(7) On the admitted facts there was no vacancy in this office on January 1, 1923, when respondent first attempted to qualify, but the relater holds over until his successor shall be duly "elected or appointed and qualified." Constitution, 1875, art. 14, § 5; State ex rel. v. King. 17 Mo. 511; State ex rel. v. Manning, 84 Mo. 661; State ex rel. v. Smith, 152 Mo. 512, 54 S. W. 221. 47 L. R. A. 560; State v. Bratton (Tenn.) 253 S. W. 705.

(8) The early history, no less than the present state, of legislation on this subject demonstrates the intent to supply long vacancies in such elective offices only "until the next general" (or "regular") election in order to place the choice of such officers with the electorate, so far as practicable. The evolution of the present law clearly shows the intent to reach the meaning which relater asserts in this cause. R. S. 1855, p. 275, § 12; R. S. 1855, p. 274, §§ 4, 5; R. S. 1865, p. 142, § 21; R. S. 1879, § 527; R. S. 1919. §§ 781, 782.

(9) The writ of quo warranto, or information of that nature, is not intended as an election contest; but only decides upon the right of respondent to incumber the office. State v. Buskirk, 43 Mo. 111; State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. Meek, 120 Mo. 431, 31 S. W. 913; League v. City (Mo. Sup.) 223 S. W. 891.

(10) The facts alleged in the return, in regard to the nominations of candidates and the filing of notice of contest, do not change the law as to respondent's right to occupy the office in question. As relater was admittedly the lawful incumbent November 7, 1922, the burden is on respondent to show that he has since been duly elected and qualified to take the office. He has not discharged that burden. Parties cannot, even by contract, lawfully dispose of rights to public office. Keating v. Hyde, 23 Mo. App. 555; State v. Bowman, 184 Mo. App. 549, 170 S. W. 700; Eads v. Stiel, 204 Mo. App. 420, 222 S. W. 482; Hunter v. Nolf, 71 Pa. 282; Gray v. Hook, 4 N. Y. 449.

(11) The extension of office, under our Constitution (article 14, § 5), until the proper election (or appointment) and due qualification of a successor, constitutes an integral part of the original term, "as much a part of the term of his office as that which precedes the date at which the new appointment should be made"; so that the incumbent thereof is not displaced until both of those events have occurred. State ex rel v. Smith, 87 Mo. 158; State ex rel. v. Ranson, 73 Mo. 92; State ex rel. v. Smith, 152 Mo. 517, 54 S. W. 221, 47 L. R. A. 560; Sweeney v. State, 23 Ariz. 435, 204 Pac. 1025.

Chilton Atkinson and Shepard Barclay, both of St. Louis, for relater.

Conway Elder and Henry Kortjohn, Jr., both of St. Louis, for respondent.

DAVID E. BLAIR, J.

This is an original proceeding by quo warranto, instituted upon the information of the Attorney General at the relation of Ernest F. Oakley, Jr., to oust respondent, Albert L. Schweitzer, from the office of prosecuting attorney for the St. Louis court of criminal correction.

Upon the filing of the petition our writ to show cause was issued, and thereafter respondent filed his amended answer and return. To this relater has filed his demurrer, thereby admitting the facts well pleader therein.

In December, 1029, a vacancy was created in the office of prosecuting attorney for the St. Louis court of criminal correction by the resignation of the then incumbent of that office, and Governor Gardner appointed relater to fill the vacancy caused by such resignation. Relator's predecessor had been elected to said office at the regular election in November, 1918, for a term of four years from January 1, 1919.

Respondent was duly nominated for said office upon the Republican ticket at the August, 1922, primary election. At the November, 1922, election, the name of respondent appeared upon the official ballot of the Republican party, and his candidacy was designated thereon as follows: "For prosecuting attorney for the St. Louis court of criminal correction. Albert L. Schweitzer." No term of office was designated on said ballot.

Relater Oakley was the duly nominated candidate of the Democratic party for said office, and his name and the designation of the office for which he was a candidate appeared upon the official ballot of the Democratic party at said election in the identical manner in which respondent's name appeared upon the Republican ballot. At said ...