Quo
Warranto.
ELDER
J.
This is
an original proceeding by information in the nature of
quo warranto, brought by the Attorney-General, on
his own relation and in his official capacity, seeking to
determine by what right respondent, Ferd Dallmeyer, Inspector
of Hotels, and of Hotels.
The
information, caption omitted, is as follows:
"Comes
now the State of Missouri at the relation of Jesse W.
Barrett, Attorney-General, and informs the court that on the
27th day of June, 1922, the Honorable Arthur M. Hyde,
Governor of Missouri, purporting to act under the authority
conferred upon him by Section 5888, Revised Statutes of
Missouri of 1919, appointed respondent Ferd Dallmeyer holds
the office of Inspector that said respondent thereupon duly
qualified and is exercising the powers and duties conferred
by Section 5890, Revised Statutes of Missouri of 1919.
"Informant
states that by an Act of the General Assembly of Missouri,
approved March 24, 1921, Laws of Missouri 1921, page 405,
said Section 5888, Revised Statutes of Missouri for 1919, was
repealed and the office of Inspector of Hotels abolished.
"Wherefore
informant states that respondent is unlawfully holding said
office of Inspector of Hotels and prays the court to make an
order on respondent requiring him to show by what right or
title he is holding said office and attempting to discharge
and exercise its powers and duties."
Respondent waived the issuance of the writ,
stipulated that the petition of relator should be taken as
and for the writ, and made return as follows:
"Comes
now Ferd Dallmeyer, respondent in the above entitled cause,
and for his return to the writ of quo warranto
heretofore issued herein, admits that on the 27th day of
June, 1922, the Honorable Arthur M. Hyde, Governor of
Missouri, purporting to act under the authority conferred
upon him by Section 5888 of the Revised Statutes of Missouri
of 1919, appointed respondent Inspector of Hotels, and
respondent further admits that he thereupon duly qualified
and is now exercising and since the 27th day of June, 1922,
has exercised the powers and duties conferred by Section 5890
of the Revised Statutes of Missouri of 1919.
"Respondent
denies that by an act of the General Assembly of Missouri,
approved March 24, 1921, Laws of Missouri 1921, page 405,
said Section 5888 of the Revised Statutes of Missouri of
1919, was repealed and the office of Inspector of Hotels
abolished.
"Respondent
states that the act of the General Assembly of Missouri,
aforesaid, approved March 24, 1921, was in words and figures
as follows:
"'An
Act to abolish the office of Inspector of Hotels and to
confer the rights, powers and duties of such officer on the
Supervisor of Public Welfare, and to repeal Section 5888,
Revised Statutes of Missouri, 1919.
"'Section
1. Abolishing office of Inspector of Hotels --
Duties vested in and conferred upon Supervisor of Public
Welfare. -- The office of Inspector of Hotels as provided for
by Section 5888 of Chapter 45 of the Revised Statutes of
Missouri 1919, is hereby abolished and all the rights, powers
and duties now vested by law in the inspectors of hotels by
virtue of the provisions of Chapter 45, Revised Statutes of
Missouri, 1919, relating to hotels, inns and boarding houses,
are hereby vested in and conferred upon the office of
Supervisor of Public Welfare.
"'Section 2. Conflicting laws
repealed. -- Section 5888, and all laws and parts of
laws in conflict herewith are hereby repealed.'
"Respondent
says that the said act of the General Assembly of Missouri,
approved March 24, 1921, did not become effective for the
reason that by its terms and provisions it was to be
effective only when the office of Supervisor of Public
Welfare should come into existence, but respondent says that
the law creating the office of Supervisor of Public Welfare,
approved March 27, 1921, appearing in the Laws of Missouri
for 1921 at page 589, was suspended by the filing of
referendum petitions. Respondent
states that the act of the General Assembly purporting to
abolish the office of Inspector of Hotels was, by the
suspending of the act creating the office of Supervisor of
Public Welfare, also suspended, and that, therefore, Section
5888, Revised Statutes of Missouri for 1919, is still in full
force and effect.
"Wherefore,
respondent states that he is lawfully holding the office of
Hotel Inspector and that the writ of quo warranto is
improvidently issued and should be quashed."
Upon
the filing of the return, relator moved for judgment on the
pleadings.
Such is
the case before us. It is one of first impression in this
State, and, as far as our investigation discloses, finds no
precedent in other jurisdictions.
I.
Relator contends that Section 5888, Revised Statutes 1919,
creating the office of Inspector of Hotels, was repealed by
the act approved March 24, 1921, Laws 1921, page 405, and
that the office of Inspector of Hotels was abolished; that
since said office does not legally exist, respondent can have
no valid right or title thereto and should be ousted
therefrom.
By
reference to the above mentioned Act of 1921, set forth in
full in the return of respondent, it will be noted that the
said act abolishes the office of Inspector of
Hotels, and vests the rights, powers and duties of such
office in the office of Supervisor of Public Welfare. But, by
the return of respondent it is shown that the law creating
the office of Supervisor of Public Welfare, Laws 1921, page
589, likewise approved March 24, 1921, was suspended by the
filing of referendum petitions. Respondent therefore argues
that the suspension of said act necessarily postponed the
effective date of the act repealing Section 5888, and, as a
corollary, that the abolition of the office of Inspector of
Hotels only becomes operative upon the creation of the office
of Supervisor of Public Welfare, which the filing of the
referendum petitions had the effect of deferring.
That
the Legislature may enact a law to take effect upon the
happening of a future event or contingency has long since,
and again comparatively recently, been decided by this court.
[State ex rel. Dome v. Wilcox, 45 Mo. 458; Hall
v. Sedalia, 232 Mo. 344, 134 S.W. 650.]
As said
in State ex rel. Dome v. Wilcox, supra, l. c. 464:
"The proposition cannot be successfully controverted,
that a law may be passed to take effect on the happening of a
future event or contingency. The future event -- the
happening of the contingency, or the fulfillment of a
condition -- affords no additional efficacy to the law, but
simply furnishes the occasion for the exercise of the power.
The law is complete and effective when it has passed through
the forms prescribed for its enactment, though it may not
operate, or its influence may not be felt, until a subject
has arisen upon which it can act."
If
therefore, it be true that the Legislature may postpone the
effective date of a law, by an analogy of reasoning it must
also follow that the operation of a statute may be deferred
by the invocation of the referendum, for the exercise of
legislative power by the people through the referendum is
simply a reservation to themselves of a share of the
legislative power. Accordingly, when the act creating the
office of Supervisor of Public Welfare was
suspended by the filing of referendum petitions, such action
necessarily postponed the operation of the act repealing
Section 5888 for the reasons (1) that the two statutes are
in pari materia and must be considered together and
(2) that the abolition of the office of Inspector of Hotels,
was, from the face of the act, dependent upon the existence
of the successor office of Supervisor of Public Welfare, to
which the rights, powers and duties of the office abolished
were to be transferred. Each of the two component parts of
the repealing statutes, to-wit, the abolition of one office
and the transfer of the powers and duties of that office to
another, are inseparable, and if one portion of the statute
is rendered inoperative, the other must likewise fail. And
the fact that the two acts (that creating the office of
Supervisor of Public Welfare...