State v. Washburn

Decision Date19 February 1902
Citation67 S.W. 592,167 Mo. 680
CourtMissouri Supreme Court

1. Act June 19, 1899, creating a board of three election commissioners in cities having over 100,000 inhabitants, to be appointed by the governor, provided that one of the members must belong to a "leading party politically opposed" to that to which the other two belong, and must be chosen from three citizens named by the city central committee of such leading political party. Held, that so much of the act as restricted the power of appointment to a choice from citizens belonging to and named by the committee of a particular party was repugnant to Const. art. 4, § 53, prohibiting local or special legislation granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity.

2. The election commissioners being state officers, the restriction of the power of appointing one of them to a choice from citizens selected as prescribed by the legislature was repugnant to Const. art. 3, providing that the powers of government shall be divided into legislative, executive, and judicial departments, and that one charged with the exercise of powers belonging to one department shall not exercise any power belonging to either of the others; as being in effect a provision for legislative appointment to a governmental office, which could under the constitution be filled only by executive appointment, or by election by the people.

3. Even if Const. art. 14, § 9, providing that the appointment of all officers not otherwise directed by the constitution shall be made in such manner as may be prescribed by law, authorized the legislature to give the committee of a political party power to appoint the third member of the election commissioners provided for by Act June 19, 1899, it did not authorize the legislature to designate by description the man to be chosen, as attempted in such act.

4. The restriction in Act June 19, 1899, upon the power therein conferred upon the governor of appointing election commissioners in cities of over 100,000 inhabitants, to a choice of one of such commissioners from citizens named by the city central committee of the leading party politically opposed to that to which the other commissioners belong, is not such an essential element of the act that its unconstitutionality affects the power of appointment therein conferred, and hence an appointment made by the governor in disregard of such restriction was valid.

Sherwood and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Bates county; W. W. Graves, Judge.

Quo warranto by the state, on the information of Hadley, prosecuting attorney, against Charles E. Washburn. From a judgment in favor of the state, defendant appeals. Reversed.

Clark & Francisco, E. E. Yates, and W. M. Williams, for appellant. John H. Lucas and Gage, Ladd & Small, for the State.


This is an appeal from a judgment of the circuit court of Bates county ousting the appellant from office as member of the board of election commissioners of Kansas City in a proceeding in the nature of quo warranto upon the information of the prosecuting attorney of Jackson county. The suit was begun in the circuit court of Jackson county and taken by change of venue to Bates county. The facts in the case are undisputed. An act was passed by the general assembly, and approved June 19, 1899, amending the then existing statute in relation to the board of election commissioners in cities having over 100,000 inhabitants, one part of which amendatory act is in these words: "There is hereby created a board of election commissioners for each city that is governed by the provisions of this act composed of three members, who shall be appointed as follows: Within ten days after this act takes effect, the governor shall appoint three election commissioners, one of whom shall be by him designated as the chairman of the board, and one of whom shall be by him designated as the secretary of the board, which said three election commissioners shall hold their offices for the term of three years and until their successors are appointed and qualified. * * * One of said election commissioners so appointed by the governor shall be a member of the leading party politically opposed to that to which the chairman and the secretary so appointed belongs and shall be chosen from three eligible citizens named by the city central committee of the said leading party politically opposed to that to which the chairman and secretary belong." Acts 1899, p. 197. As in performance of the duty imposed upon him by that act, the governor appointed three election commissioners for Kansas City, one of whom he designated as president, and another as secretary, of the board, and the third, who is the member at whom this writ is leveled, was of the leading party opposed politically to that to which the two others belonged. He possessed all the qualifications that were required to render him personally eligible to the office, and immediately upon his appointment qualified and entered upon its duties, and was discharging the same when, by this proceeding, he was called into court to show by what authority he was so acting. His right to hold the office and discharge its duties is challenged upon one ground only; that is, that he was not nominated by the city central committee of his party. That committee, as contemplated by the act of 1899, duly named three eligible citizens from whom the choice was to be made. This appellant was not one of the three, but was appointed by the governor of his own free choice, in disregard of the nominations of that committee. The question for decision therefore is, did the governor have the lawful authority to appoint to the office one, otherwise eligible, who was not of the three thus nominated?

1. This brings into question the validity, under the constitution, of the act of 1899, above mentioned, or so much thereof as essays to confer the power of nomination on the party committee. Appellant maintains that that portion of the act is in violation of section 53 of article 4 of the constitution, which is: "The general assembly shall not pass any local or special law * * * granting to any corporation, association or individual any special or exclusive right, privilege, or immunity." The purpose of that clause in our constitution is to secure to every one within the state that equality in right, privilege, and immunity conferred by law, which is an absolute essential to our form of government. It is not to be confused with the idea that it was designed to prevent such inequality in fact in the conditions of individuals as their own acts may bring about, but it means that such inequality shall not be created by law; that the state shall deal even handed with all. The same idea runs through the constitutions of other states, and is expressed in forms more or less explicit, but in our constitution it is comprehensive and clear in its meaning. Is that purpose violated by the statute in question, which seeks to confer upon the committee of one political party the right to appoint an officer to exercise a governmental function in the matter of state elections when the same right is not given to any other partisan committee? Although the power here attempted to be conferred is not literally the power of appointment, yet its effect is the same; it leads to the appointment; and if the legislature has the authority to confer the power to nominate in the manner indicated, it has the authority to confer the power to appoint without the circumlocution, which is merely formal. If the governor may be compelled to select one of three, he may be limited in his preference of one of two, and, either in form or in skillful practice, there might be no choice left to the executive at all. We must consider the statute therefore as conferring on the partisan committee the power to name the officer, for such is the effect. The clause of our constitution above quoted does not prohibit the general assembly passing a statute to affect particularly one class. Since there are classes of individuals and corporations so essentially different from other classes as that a law designed to apply to all would apply to some in one way and to others in another, or to some in one degree and to others in a larger degree, it becomes absolutely necessary that laws should be made to affect particular classes, else the very inequality sought to be avoided would be produced. A law might be uniform in theory, yet in its operation produce unjust discrimination, discriminating in effect by failing to discriminate in form; that is, by failing in shape to fit the unequal conditions to which it must apply. Therefore a law is not within the constitutional inhibition because it is designed to operate on one class only, provided the conditions reasonably justify the distinguishing of the class, and provided it affects equally all who come within that class. Hamman v. Coke Co., 156 Mo. 232, 56 S. W. 1091. But if the attempted classification be arbitrary, or if the statute essays to confer a "right, privilege or immunity" upon one or some in the class, and not upon all, the act is invalid. State v. Walsh, 136 Mo. 400, 37 S. W. 1112, 35 L. R. A. 231; State v. Thomas, 138 Mo. 95, 39 S. W. 481. Does this act of 1899 recognize the existence of a class by natural conditions, and does it affect all in that class alike? The legislature certainly had in view the fact that there were great political parties in the state, and that the management of the affairs of those parties was in the hands of their respective party committees. That is a natural and reasonable classification, and legislation to affect that...

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