State v. Wright

• Decision Date: 28 June 1913
• Citation: 158 S.W. 823
• Parties: STATE ex rel. HARVEY, Circuit Atty., v. WRIGHT.
• Court: Missouri Supreme Court

158 S.W. 823

STATE ex rel. HARVEY, Circuit Atty., v. WRIGHT.

Supreme Court of Missouri.

June 28, 1913.

1. CONSTITUTIONAL LAW (§ 58)—ELECTIONS (§ 47)—APPOINTMENT OF OFFICERS—REPRESENTATION OF POLITICAL PARTIES.

Laws 1911, p. 244, repealing Rev. St. 1909, § 6190, and providing for a nonpartisan board of election commissioners in certain cities to be appointed by the Governor, which requires the appointments to be made from lists of eligible citizens submitted by the state committees of the political parties, is unconstitutional.

2. OFFICERS (§ 6)—POWER TO APPOINT—CONSTITUTIONAL PROVISIONS.

The provisions of the Constitution regarding the appointment of various officers (Const. art. 9, § 11; art. 6, § 32; art. 5, § 11; and art. 14, § 9) do not confer upon the Governor the general appointive power, but delegate to the Legislature the authority to specify by statute who shall make the various appointments.

3. CONSTITUTIONAL LAW (§ 58)—POWER TO APPOINT—STATUTORY PROVISIONS.

While the Legislature cannot attach conditions to nor restrict the exercise by the executive of such powers as are specifically conferred upon him by the Constitution, it may attach conditions and restrictions upon the power of appointing certain officers conferred by statute upon the Governor, so long as those conditions are not shared by others, and are not so restrictive as to conflict with Const. 1875, art. 3, providing for three distinct departments of the state government.

4. STATUTES (§ 64)—ELECTION COMMISSIONERS—APPOINTMENT—STATUTORY PROVISIONS.

The unconstitutional requirement of Laws 1911, p. 244, that the appointment of election commissioners shall be made from lists submitted by the party committees does not render invalid the portion of the statute which requires the appointment of two of the commissioners to be made from the leading party politically opposed to that to which the Governor belongs; since the requirement of the lists from the party committees was a matter of detail by which the Legislature sought to insure a nonpartisan board.

5. STATUTES (§ 64) — PARTIAL INVALIDITY—EFFECT.

If, after cutting out the bad parts of a statute, enough which is good remains to show the legislative intent and to furnish a working plan by which that intent may be effectuated, the whole of the statute will not be declared bad.

6. CONSTITUTIONAL LAW (§ 58) — ELECTION COMMISSIONERS — QUALIFICATIONS — REPRESENTATION OF POLITICAL PARTIES.

The requirement of Laws 1911, p. 244, that two members of the board of election commissioners for certain cities shall be members of the leading party politically opposed to that to which the Governor belongs does not invade the province of the executive, and is therefore not repugnant to Const. 1875, art. 3, providing that no department of the state government shall exercise any power which properly belongs to another.

7. CONSTITUTIONAL LAW (§ 68)—APPOINTMENT—EVIDENCE OF APPOINTMENT.

The commission of the Governor appointing an election commissioner is not conclusive upon the courts as to his qualification; since he holds the office by virtue of his appointment, and not of his commission, and if the appointment is unlawful he may be ousted, notwithstanding his commission.

8. CONSTITUTIONAL LAW (§ 68)—QUALIFICATION — EFFECT OF APPOINTMENT OF DISQUALIFIED PERSON.

Where the officer admits, in quo warranto proceedings, that he is not a member of the leading political party opposed to that of the Governor, his appointment by the Governor and confirmation by the Senate are not conclusive determinations of his qualification, although, if the record were silent, that would create a presumption that he was qualified.

9. EVIDENCE (§ 45)—JUDICIAL NOTICE—HISTORICAL FACTS.

The Supreme Court takes judicial notice of the political affiliation of the Governor and of the relative strength of the Democratic, Republican, and Progressive parties in the state at the last election, as matters of current, political history.

10. ELECTIONS (§ 52) — APPOINTMENT OF ELECTION OFFICERS — REPRESENTATION OF POLITICAL PARTY — "LEADING POLITICAL PARTY."

Under Laws 1911, p. 244, requiring the appointment by the Governor of election commissioners, two of whom shall be members of the leading party politically opposed to that to which the Governor belongs, and requiring the state committee of such party to present a list from which appointments are to be made, the

leading political party is the leading party in the state and not in the nation; since a statute is prima facie confined in its operation to those within its jurisdiction.

11. ELECTIONS (§ 47) — APPOINTMENT OF ELECTION COMMISSIONERS—STATUTORY PROVISIONS—AMENDMENT.

The act of March 26, 1913 (Laws 1913, p. 344), amending Laws 1911, p. 244, so as to require only that not more than two of the election commissioners shall be members of the same political party as that of the Governor, does not validate the appointment of one who was qualified under that act but not under the previous act under which he was appointed.

12. STATUTES (§ 263)—CONSTRUCTION—RETROACTIVE OPERATION.

Unless a statute purports to be curative or retroactive in its operation, it will be construed to have a prospective operation only.

In Banc. Original proceeding in the nature of quo warranto by the State, on the relation of Thomas B. Harvey, against Joseph A. Wright, to try the title by which the respondent held the office of the member of the Board of Election Commissioners of the City of St. Louis. Writ of ouster issued.

This is an original proceeding in the nature of quo warranto, begun by Thomas B. Harvey, as circuit attorney of the city of St. Louis, against Joseph A. Wright, respondent, to try the title by which respondent holds the office of member of the board of election commissioners of the said city of St. Louis.

Respondent was appointed such member of the board of election commissioners by the Governor of Missouri on January 29, 1913, for a term ending January 15, 1917, and duly commissioned as such by a commission duly and regularly issued on February 3, 1913. He has duly qualified by taking the required oath and filing bond. It is conceded that respondent has been in every way pursuant to law duly appointed, commissioned, and qualified, and that he is in all ways competent to fill this position, save and except as to his political faith and affiliation. He is a member of the Progressive party, and was a member thereof at the time of his appointment. Being so affiliated politically, is he eligible and qualified under the statute below quoted? If he be not so eligible, may he be reached and ousted by this court, after being commissioned by the Governor and confirmed by the Senate?

Spencer & Donnell, of St. Louis, for relator. Guy A. Thompson, Walter H. Saunders, and H. J. Cantwell, all of St. Louis, and Arthur M. Hyde, of Princeton, for respondent.

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

I. Respondent was appointed to this office by the Governor of Missouri by virtue of the authority conferred on the latter by the following section of the act of March 27, 1911 (repealing section 6190, R. S. of Mo. 1909), to wit:

"Sec. 6190. There is hereby created a nonpartisan board of election commissioners for each city governed by the provisions of this article, composed of four members, who shall be appointed as follows: Within sixty days after this act shall become a law, the Governor, by and with the advice and consent of the Senate, shall appoint for each of such cities four members, who shall hold their offices until January 15, 1913, and until their successors are commissioned and qualified. Successors shall be appointed in like manner and their term of office shall be four years, and until their successors are commissioned and qualified. Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the state committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the state committee of the political party to which the Governor belongs. In making the appointments of the commissioners the Governor shall designate the commissioner who shall be chairman of the board and the one who shall be the secretary of the board, provided the chairman and secretary shall not both belong to the same political party. In case of a vacancy in said board from any cause whatever, it shall be filled in the same manner and from like lists, and subject to confirmation by the Senate, as in the case of original appointments, save that the appointee for any unexpired term shall be a member of the same political party to which the person whom he may succeed belonged, and in no case shall more than two members of said board belong to the same political party." Laws 1911, p. 248.

So much only of this section is pertinent to this inquiry. Other parts relate to acts of qualification and to character, and to matters and details of residential eligibility, concededly possessed by respondent.

Further narrowing the issues in controversy, relator contends that the appointment of respondent, who is a member of the Progressive party, violates the following provisions of the above section, to wit:

"Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the state committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the state committee of the political party to which the Governor belongs."

Conceding the violation of the above provision by...