State v. Southern

• Decision Date: 01 June 1915
• Docket Number: No. 18736.,No. 18735.,18735.,18736.
• Citation: 177 S.W. 640,265 Mo. 275
• Parties: STATE ex inf. BARKER, Atty. Gen., v. SOUTHERN et al. STATE ex rel. SOUTHERN v. BULGER et al.
• Court: Missouri Supreme Court

177 S.W. 640

265 Mo. 275

STATE ex inf. BARKER, Atty. Gen., v. SOUTHERN et al.

STATE ex rel. SOUTHERN v. BULGER et al.

No. 18735.

No. 18736.

Supreme Court of Missouri.

June 1, 1915.

In Banc. Quo warranto by the State, on the information of the Attorney General, against Allen C. Southern and Oliver C. Sheley, and certiorari by the State, on the relation of Allen C. Southern, against Miles Bulger and others, which were heard together on stipulation by the parties. Writ of quo warranto quashed as to defendant Southern, and sustained against defendant Sheley, and the judgment of the county court, reviewed on the writ of certiorari, quashed.

Sparrow & Page, of Kansas City, for respondent Southern. Hadley, Cooper & Neel, of Kansas City, W. M. Williams, of Booneville, and John S. Wright, of Kansas City (Edward L. Scarritt and Cyrus Crane, both of Kansas City, of counsel), for respondent Sheley.

BOND, J.

I. Two original proceedings were instituted in this court. One is a certiorari sued out by Allen C. Southern, as shown in the above caption, against the three justices of the county court of Jackson county, Mo., to quash its judgment entered on the 8th of March, 1915, in the following form:

"The court finds that a vacancy exists in the office of county highway engineer of this county. Wherefore it is now ordered by the court that Oliver C. Sheley, Jr., a resident of Jackson county, Mo., who possesses the qualifications required by law, be and he is hereby appointed county highway engineer of Jackson county, Mo., for a term ending on the first Monday in February, 1915. His compensation is fixed at two thousand dollars per annum, payable in equal monthly installments. He shall furnish a bond, conditioned as required by law, in the sum of fifty thousand dollars, to be approved by this court. The bonds of his assistants are fixed at one thousand dollars each, to likewise be approved by this court."

Two of said justices concurred in the above and one dissented thereto.

After notice of the application for said writ of certiorari, the Attorney General, on the 5th day of April, 1915, brought the second proceeding shown in the above caption as an information in the nature of a quo warranto, charging that the defendants thereto, to wit, Allen C. Southern and Oliver C. Sheley, Jr., were unlawfully exercising the office of county highway engineer within and for the county of Jackson and state of Missouri. An order to show cause was made by this court on said date, to which the defendants respectively made returns. Defendant Allen C. Southern stated in his return, in substance, that he was appointed by the Governor of this state on February 3, 1915, to be county surveyor of Jackson county, Mo., to succeed Rowland T. Proctor, who had been elected to that office, but had died prior to the expiration of his term; that respondent Allen C. Southern was duly commissioned, and, having duly qualified himself as required by the laws of Missouri, entered upon the duties of said office; that by virtue of his said appointment and qualification, and the provisions of section 10556 of the Revised Statutes of Missouri of 1909, he became ex officio county highway engineer of said county, and with legal right and authority has continued to exercise and perform the duties of said office.

Respondent Oliver C. Sheley, Jr., in his separate return averred that he was lawfully holding office of county highway engineer, in that the section of the statute relied upon to support the title of respondent Southern under the appointment by the Governor was unconstitutional, and hence the county court of Jackson county, "on March 8, 1905" (by virtue of the terms aforesaid), there then being a vacancy in the office of county highway engineer, appointed him (the said Sheley), pursuant to section 10551 of the Revised Statutes of Missouri, for a term expiring at the first meeting of said court in February, 1916, and that he accepted said appointment and qualified and entered upon the duties of said office. He further averred that the said Southern was ineligible to the office in question, and concluded his return by praying judgment sustaining his title to said office. It was stipulated by the parties that the two proceedings should be heard together, and they further stipulated upon an agreed state of facts whereon they should be disposed of in this court in the following form:

"For the purpose of the hearing of this cause in the above court, it is hereby agreed and stipulated by and between John T. Barker, Attorney General, informant, and Sparrow & Page, attorneys for Allen C. Southern, respondent, in the above-entitled cause, as follows:

"(1) It is agreed that Rowland T. Proctor was at the general election held November 5, 1912 elected to the office of county surveyor of Jackson county, Mo., for a term of four years; that said Proctor qualified as such county surveyor as required by law; that on or about January 6, 1915, said Proctor, while holding said office of county surveyor of Jackson county, departed this life.

"(2) It is further agreed that on February 3, 1915, respondent Allen C. Southern was by Elliott W. Major, Governor of the state of Missouri. appointed and commissioned county surveyor of said Jackson county, to succeed said Rowland T. Proctor, deceased, and to serve the unexpired term of said Proctor; that thereafter, and on or about February 17, 1915, said Southern qualified in the manner, within the time, and as required by law, as such county surveyor of Jackson county.

"(3) It is further agreed that at the date of the election of said Rowland T. Proctor, county surveyor of Jackson county, and of respondent Southern's appointment and commission as his successor, said Jackson county had, and now has, a population of more than 50,000 inhabitants; that during all said time the taxable wealth of said county exceeded, and now exceeds, the sum of $45,000,000; that during all said time said Jackson county contained, and now contains therein, a city of more than 100, 000 inhabitants by the last decennial census, to wit, the city of Kansas City.

"(4) It is further agreed that at the time of the election of said Rowland T. Proctor to the office of county surveyor of said Jackson county, and of respondent Southern's appointment and commission as his successor, said county contained, and now contains, 200,000 and less than 400,000 inhabitants; that at said time said county had, and now has, 150 miles of more of macadamized roads outside of municipal corporations, and paid, and now pays, its county surveyor an annual salary of $3,000 of more."

It is upon the foregoing pleadings and stipulation that this cause is now before the court for final determination.

The two statutes whose interpretation is necessary to a decision of this case are, to wit:

"Sec. 10551. There is hereby created in the several counties of the state of Missouri the office of county highway engineer, and the county courts of each county in this state are hereby authorized and empowered to appoint, and shall appoint, a highway engineer within and for their respective counties at the first meeting of such court in the month of February, 1910, and each year thereafter. Such county highway engineer so appointed shall serve for a period of one year and until his successor is appointed and qualified. Any vacancy occurring in the office of county highway engineer, from any cause, shall he filled by appointment by the county court."

"Sec. 10556. The county court of the several counties in this state may, in their discretion, appoint the county surveyor of their respective counties to the office of county highway engineer, provided he be thoroughly qualified and competent, as required by this article; and, when so appointed, he shall receive the compensation fixed by the county court, as provided in section 10553, in lieu of all fees, except such fees as are allowed by law for his services as county surveyor: Provided, that in counties in which the provisions of this article with reference to the appointment of a county highway engineer have not been suspended as hereinafter provided, the county surveyor may refuse to act or serve as such county highway engineer, unless otherwise provided by law. In the event that the county highway engineer cannot properly perform all the duties of his office, he shall, with the approval of the court, appoint one or more assistants, who shall receive such compensation as may be fixed by the court: Provided, however, that in all counties in this state which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than one hundred thousand inhabitants by the last decennial census, the county surveyor shall be ex officio county highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more than three thousand dollars, as may be fixed by the county court, and all fees collected in such counties by the surveyor, for his services as surveyor, shall be paid into the county treasury, to be placed to the credit of the county revenue fund: Provided, also, that in the counties last above mentioned the county surveyor, as surveyor and ex officio county highway engineer, may appoint, subject to the approval of the county court, such assistants as may be necessary, and no assistant shall receive more than twelve hundred dollars per annum: Provided further that in all counties in the state which contain or may hereafter contain two hundred thousand and less than four hundred thousand inhabitants, and which county or counties contain one hundred and fifty miles or more of macadamized roads, outside of municipal corporations, and which county or counties pay to the county...