State v. Stonestreet

• Decision Date: 21 December 1889
• Citation: 12 S.W. 895,99 Mo. 361
• Parties: STATE ex rel. WITHERS, Pros. Atty., Use of BELT, v. STONESTREET.
• Court: Missouri Supreme Court

12 S.W. 895

99 Mo. 361

STATE ex rel. WITHERS, Pros. Atty., Use of BELT, v. STONESTREET.

Supreme Court of Missouri.

December 21, 1889.

OIL INSPECTOR — TERM OF OFFICE.

1. Rev. St. Mo. 1879, § 5838, providing for the appointment by the governor of an inspector of oils in certain cities, prescribes that such inspector shall hold his office for two years, or until his successor is appointed and qualified. Held, that the date of the beginning of the term of office of the first inspector appointed under the statute determined the limits of the terms of all subsequent appointments.

2. In an information in the nature of quo warranto to determine plaintiff's title to the office, it appeared that relator's predecessor in office had been appointed for two years from June 18, 1885; that no appointment was made at the expiration of his term of office until September 26, 1888, when relator

was appointed. Held that, under the provisions of Rev. St. Mo. 1879, § 5852, relating to the office of such inspector, and providing that when a vacancy occurs in such office by reason of death, resignation, or otherwise, the governor may appoint a successor for the remainder of the term of office, relator's term expired in two years from the date on which his predecessor's term expired.

BARCLAY, J., dissenting.

Appeal from circuit court, Jackson county; R. H. FIELD, Judge.

On the 21st day of June, 1889, an information was filed in the Jackson circuit court, by the prosecuting attorney, at the instance and on the relation of George W. Belt, which asserted the right of said Belt to the office of inspector of petroleum oils, within and for the City of Kansas, for the term of two years from the 26th day of September, 1888, by virtue of a commission of that date, issued by the governor, etc.; questioned the right of William M. Stonestreet, the present incumbent, to that office; and charged that since the 18th day of June, 1889, he had intruded himself into that office, and usurped its rights, privileges, etc., without legal warrant, etc. In the return of Stonestreet, he admitted the occupancy of the office, but claimed the office by virtue of the appointment of the governor, and a commission from him dated June 17, 1889, entitling the occupant to the office for the term of two years from and after the 18th day of June, 1889. He also alleged in his return, and proved this upon the trial, that after the Revision of 1879 went into effect the first appointment was made and commission issued on the 18th day of June, 1879, for the term of two years, commencing on said last-named day, and that the following-named persons had been successively appointed and commissioned on the days and for the terms hereinafter stated: On June 18, 1879, James A. Keel, for a term expiring June 18, 1881; on June 20, 1881, Frank K. Tutt, for a term expiring June 18, 1883; on June 12, 1883, Frank K. Tutt, for a term expiring June 18, 1885; on June 4, 1885, Joseph W. Keedy, for a term expiring June 18, 1887. It was further alleged in the return, and proved on the trial, that no appointment was made for the term commencing June 18, 1887, but that Keedy remained in office until September 26, 1888, when the then governor of the state appointed George W. Belt thereto, and undertook to issue to him a commission for two years, expiring September 26, 1890, and thereby removed Keedy from office. The return also alleged that under the law the term of office to which said Belt was appointed expired June 18, 1889, and that his commission for a period beyond that date was unauthorized. The reply of the relator put in issue the allegations of the return, and averred that under the statute the term of office of an inspector was for two years, absolutely, and until a successor of an incumbent is duly appointed and qualified, and that consequently Belt was properly appointed for two years from and after September 26, 1888.

The defendant also introduced in evidence the commission of Joseph W. Keedy, as follows: "The State of Missouri. To all who shall see these presents, greeting: Know ye, that, reposing special confidence in the integrity and abilities of Joseph W. Keedy, I, John S. Marmaduke, governor of the state of Missouri, on behalf and in the name thereof, do hereby appoint and commission him inspector of petroleum oils within and for the City of Kansas, of the state of Missouri, and do authorize him to discharge, according to law, the duties of said office, and to hold and to enjoy the same, with all the powers, privileges, and emoluments thereto appertaining, for a term of two years from and after the eighteenth day of June, eighteen hundred and eighty-five. In testimony whereof, I have hereunto set my hand, and caused to be affixed the great seal of the state of Missouri. Done at the city of Jefferson, this 12th day of June, in the year of our Lord one thousand eight hundred and eighty-five, of the independence of the United States the one hundred and ninth, and of the state of Missouri the sixty-fifth. JOHN S. MARMADUKE. By the Governor. [Seal.] MICHAEL K. MCGRATH, Secretary of State." Next, the commission of William M. Stonestreet, as follows: "The State of Missouri. To all who shall see these presents, greeting: Know ye, that, reposing special trust and confidence in the integrity and abilities of William M. Stonestreet, I, David R. Francis, governor of the state of Missouri, on behalf and in the name thereof, do hereby appoint and commission him inspector of oils within and for the City of Kansas, of the state of Missouri, and do authorize him to discharge according to law the duties of said office, and to hold and enjoy the same, with all the powers, privileges, and emoluments thereto appertaining, for a term of two years from and after the eighteenth day of June, eighteen hundred and eighty-nine. In testimony whereof, I hereunto set my hand, and cause to be affixed the great seal of the state of Missouri. Done at the city of Jefferson this seventh day of June, in the year of our Lord one thousand eight hundred and eighty-nine. DAVID R. FRANCIS. By the Governor. [Seal.] A. A. LESUEUR, Secretary of State." Under objection of defendant, the state was then permitted to introduce in evidence the commission of relator: "The State of Missouri. To all who shall see these presents, greeting: Know ye, that, reposing special trust and confidence in the integrity and abilities of George W. Belt, I Albert P. Morehouse, governor of the state of Missouri, on behalf and in the name thereof, do hereby appoint and commission him inspector of petroleum oils within and for the City of Kansas, of the state of Missouri, and do authorize him to discharge according to law the duties of said office, and to hold and enjoy the same, with all the powers, privileges, and emoluments thereto appertaining, for a term of two years. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Missouri. Done at the city of Jefferson this twenty-sixth day of September, in the year of our Lord one thousand eight hundred and eighty-eight. ALBERT P. MOREHOUSE. By the Governor. [Seal.] MICHAEL K. McGRATH, Secretary of State." It was also shown by the evidence adduced that each prior and present occupant of the office in question was duly qualified, and had entered upon and discharged the duties of his office in accordance with his commission. The foregoing gives the substance of the evidence and issues in this cause. The trial court found the issues for the state, and rendered judgment of ouster accordingly; to reverse which ruling, the defendant appeals to this court.

The statutory provisions directly applicable to this cause are these: "Sec. 5838. The governor shall appoint for each of the cities of St. Louis, Hannibal, St. Joseph, and Kansas City, and for such other cities and towns as shall, by the authorities thereof, petition to him therefor, an inspector of petroleum oils, kerosene, gasoline, or any product of petroleum, by whatever name known, which may be manufactured, offered for sale, or sold, for consumption for illuminating purposes, within the state. Each inspector shall be a resident of the city or town for which he is appointed, hold his office for two years from the date of his appointment, and until his successor is duly appointed and qualified, and shall, at his own expense, provide himself with the necessary instruments and apparatus for testing, gauging, and branding the oils and fluids by him inspected." Laws 1870, p. 77, § 1, amended. "Sec. 5852. Whenever any vacancy occurs under this article by death, resignation, removal from office, or otherwise, the mayor of the city where the vacancy happens shall immediately certify the same to the governor, who shall appoint and commission his successor for the remainder of the term of office, as herein provided; and in all cases where any inspector shall be charged, by indictment or information, for a violation of the duties of his office, as hereinbefore provided, the governor may suspend him from the duties of his office, and appoint another one to fill such vacancy during the time such inspector shall remain suspended." The slight changes made in the foregoing sections by the Laws of 1885 are unimportant in the present controversy.

Kames, Holmes & Krauthoff, for appellant. Downing & Hardin, for respondent.

SHERWOOD, J., (after stating the facts...