Stocke v. Edwards

Citation244 S.W. 802,295 Mo. 402
Decision Date27 October 1922
Docket NumberNo. 24105.,24105.
PartiesSTOCKE v. EDWARDS et al. Board of Election Cam'rs.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Jacob Stocke against John B. Edwards and others, constituting the Board of Election Commissioners, of the City of St. Louis, Missouri, for an injunction. Judgment for defendants dismissing the bill on demurrer, and plaintiff appeals. Reversed.

E. E. Schowengerdt, A. W. Wenger, and Buder & Buder, all of St. Louis, for appellant.

Geo. F. Held and Oliver Senti, both of St. Louis, for respondents.

J. M. Lashly, of St. Louis, amicus curiæ.

ELDER, J.

This is an action by plaintiff as a resident and taxpayer of the city of St. Louis, seeking to enjoin defendants, who constitute the board of election commissioners of said city, from submitting to the voters and printing upon the official ballot at the coming general election to be held November 7, 1922, the names of the Republican, Democratic and Socialist Labor candidates for the office of assessor of the city of St. Louis. The suit involves the constitutionality of an act passed at an extra session of the Frty-First General Assembly. Laws of Missouri, Extra Session 1921, p. 107.

The facts in the case and the grounds upon which plaintiff assails the law in question are detailed in the petition, which is as follows:

"Comes now the plaintiff and alleges that he is a citizen of the United States and a resident of the city of St. Louis, Missouri; that he is the owner of real estate and personal property situated and located therein and a taxpayer on the same; that he is bringing this suit on behalf of himself and all other citizens and taxpayers who are similarly situated and interested with him and wish to join herein.

"That defendant John B. Edwards is the president of the board of election commissioners of the city of St. Louis, Missouri, that defendant Edward S. Lewis is its Secretary, and defendants John H. Holliday and James Y. Player are the remaining members of said board. That said board has charge of, and supervision over, all elections held in said city.

"And" for his cause of action plaintiff states that the city of St. Louis is a city located within the boundaries of the state of Missouri, and according to the last United States census of the year 1920, it had, and still has, a population in excess of 500,000 inhabitants. That there will be held in said city on Tuesday, November " 7, 1922, a general state election and at said election, among other offices to be voted for, the defendants propose to submit to the voters of said city the office of `assessor of the city of St. Louis.' That the defendants are about to, and unless restrained by this honorable court will, have printed on the regular official blanket ballot to be submitted to the voters on said 7th day of November, 1922, the names of William Buder as the Republican candidate, George Hruska the Democratic candidate, and George Gerdes as the Socialist Labor candidate. That the office of assessor for the city of St. Louis is an appointive one under the charter of said city and has been duly filled by appointment of the mayor and one William. Buder is now the duly appointed, qualified, and acting assessor for said city, having been appointed for a period expiring April, 1925. That there is now no existing vacancy in said office.

"That the defendants propose to, and will, submit said office of the assessor of the city of St. Louis to the electors under and by virtue of the provisions of an act passed by the Fifty-First General Assembly of the state of Missouri, while in extra session, approved July 21, 1921, and entitled, `an act providing for the election of an assessor in cities now having, or which may hereafter have, a population of 500,000 inhabitants or more, defining his duties and providing for a board of equalization in said cities,' and found in the Laws of Missouri, 1921, Extra Session, p. 107.

"That on the 31st day of May, 1921, the Governor of the state of Missouri issued his proclamation calling in extra session the Fifty-First General Assembly of the state of Missouri. Said proclamation of the Governor is in words and figures as follows:

"`Whereas, the people of the gate of Missouri did, on the 2d day of November, 1929, by their vote amend the Constitution of the state of Missouri and authorize the General Assembly of the state of Missouri to contract or to authorize the contracting of a debt or liability on behalf of the state, and to issue bonds or other evidences of indebtedness not exceeding in the aggregate sixty millions of dollars for the purpose of constructing hard surfaced public roads in each county in the state, subject to the further terms and conditions in said amendment more fully set forth; and

"`Whereas, such amendment can only be made effective by the action of the General Assembly of the state of Missouri; and

"`Whereas, the above and other matters of immediate importance demand the attention of the Fifty-First General Assembly of the state of Missouri;

"`Now, therefore, I. Arthur M. Hyde, Governor of the state of Missouri, by virtue of the authority in me vested by the Constitution and laws of the state, do hereby convene the Fifty-First General Assembly of the state of Missouri in extra session, and I do hereby call upon the Senators and Representatives of the said General Assembly to meet in their respective places in the state capitol in the city of Jefferson, at the hour of 12 o'clock m. on the 14th day of June, 1921, to consider and enact such legislation as may to the General Assembly seem proper concerning the following subjects and purposes:

"`(1) The issuance and sale of said bonds or evidences of indebtedness in an amount not exceeding sixty million ($60,000,000.00) dollars.

"`(2) The means, methods and safeguards governing the expenditure of said sum, or any ',art thereof.

"`(3) Designating the roads to be Improved, and providing for the repair and maintenance of such improved or designated roads.

"(4) Road legislation generally.

"`(5) Legislation governing primary elections and the nomination of candidates for office within the state of Missouri.

"`(6) The reduction of tax levies made by the General Assembly.

"`(7) Such other matters and subjects as may be recommended by the Governor by special message to the special session of the General Assembly for its consideration after it shall be convened.

"`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 31st day of May, A. D. 1921.

                    "`[Seal.]     Arthur K. Hyde
                

"`By the Governor:

"Charles U. Becker, Secretary of State.'

"That said General Assembly duly convened in special session at the state capitol on said 14th day of June, 1921, and in the course of its deliberations passed the above-mentioned act relating to the election of assessors for cities of 500,000 inhabitants or more.

"Plaintiff further states that the proclamation of the Governor calling the special session contained no mention relating to the office of assessor, and no mention of said office was contained in any special message of the Governor's other than that of July 1, 1921, hereinafter referred to.

"And plaintiff further states and charges that said new act furnishes no warrant for the proposed and threatened action of the defendants and said act is unconstitutional and void in the following respects:

"First, the new act is in contravention with and violative of section 28 of article 4 of the Constitution of Missouri, in that said act amends, enlarges, modifies, or repeals various sections of the statutes of Missouri, 1919, without making reference to such facts in the title thereof. That is to say, the various sections of said new act attempt to and do amend articles 2 and 3 of chapter 119, of said Revised Statutes of Missouri, 1919, in so far as said articles are applicable to cities in this state which now have, or which may hereafter have, a population of 500,000 inhabitants or more. That section 2, of the new act enlarges the provision of section 12761, Revised Statutes of 1919. Section 3 enlarges, adds to and amends section 12762, Revised Statutes 1919. Section 4 enlarges and amends Section 12734, Revised Statutes, 1919. Section 5 enlarges and amends Section 12766, Revised Statutes, 1919. Section 3 amends and enlarges section 12770, Revised Statutes, 1919. Section 12 amends and enlarges section 12813. Revised Statutes, 1919. Section 12 amends and enlarges section 12816, Revised Statutes, 1919, as amended by the Laws of 1921, p. 571. Sections 7, 8, 9, 10, and 11 amend and enlarge sections 12820, 12822, 12823, 12824, 12825, 12826, and 12827, Revised Statutes of Missouri, 1919. Section 14 of said new act specifically provides `That all acts and parts of acts inconsistent with this act are hereby repealed in so far as they are inconsistent herewith; and the general law as now existing in all matters relating to taxation, not specially provided for in this act, shall continue to be the law for cities coming within the operation of this act.' No mention is made in the title to said new act of the intention and purpose of the Legislature to so amend, change, enlarge or repeal all or part of the then existing law, said title to said new act merely being, `An Act providing for the election of an assessor in cities now having, or which may hereafter have, a population of 500,000 inhabitants or more, defining his duties and providing for a board of equalization in said cities.' The act is therefore void.

"Second. Said act is unconstitutional and void also because the same was not properly passed by the General Assembly of the state of Missouri in that the journal of the Senate covering the extra session of the year 1921 of the proceedings of the Senate on July 1, 1921, at page 1276, shows that ...

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