The State ex inf. Barker v. Koeln

• Decision Date: 24 February 1917
• Citation: 192 S.W. 748,270 Mo. 174
• Parties: THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. EDMOND KOELN
• Court: Missouri Supreme Court

192 S.W. 748

270 Mo. 174

THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. EDMOND KOELN

Supreme Court of Missouri

February 24, 1917

Writ granted.

Frank W. McAllister, Attorney-General, John T. Gose and S. P Howell, Assistant Attorneys-General, for relator; Benjamin H Charles, of counsel.

(1) The burden is on the respondent to establish his right to the office. State ex rel. v. McCann, 88 Mo. 386; State ex rel. v. Powles, 136 Mo. 376. (2) (a) The legal requirement that collectors should be elected in 1906 and every four years thereafter, is, substantially, a direction that no election for that office shall be held in any intervening year. State ex rel. v. Roach, 269 Mo. 500. The designation by the statute of the years in which collectors are to be elected was intended to prevent collectors being elected in presidential years. State ex rel. v. Roach, 269 Mo. 500. (b) The General Assembly had the power to prescribe the term of office of collector, and to fix the time of elections therefor. Constitution, art. 9 sec. 14; State ex inf. v. Herring, 208 Mo. 727. The term is those four years ending on the first Monday in March of the year in which the collector is required to make his last final settlement for the tax book to be collected by him. R. S. 1909, sec. 11448; State ex inf. v. Herring, 208 Mo. 728. The vacancy admitted by respondent extended to the end of the four years which began in March, 1915. State ex inf. v. Herring, 208 Mo. 726. The Governor had the constitutional right to fill that vacancy. Constitution, art. 5, sec. 11; State ex inf. v. Herring, 208 Mo. 726. (c) In the exercise of its legislative discretion the General Assembly has fixed a regular time for the holding of an election for the office of Collector of the Revenue. When so fixed, no valid election can be held at any other time. State ex inf. v. Smith, 152 Mo. 521; State ex inf. v. Dobbs, 182 Mo. 367; State ex rel. v. Jenkins, 43 Mo. 265; In re Wooldridge, 30 Mo.App. 618. (d) Sec. 11432, R. S. 1909, "makes no provision for the election of a collector for an unexpired term." State ex inf. v. Herring, 208 Mo. 729. The statutes make no provision for an election for collector except for a regular, full, four-year term. State ex inf. v. Herring, 208 Mo. 729. (3) The city of St. Louis is not only a city but also a county charged with the same functions, in its relations with the state at large, and with the State government, as all other counties. Constitution, art. 9, secs. 20 to 25; State v. Rebenack, 135 Mo. 350; Staub v. St. Louis, 175 Mo. 414; Brown v. Marshall, 241 Mo. 738. The collector of a county is a State officer, performing functions within the limits of his county. Henderson v. Koenig, 168 Mo. 356. The office of collector in the city of St. Louis is a State office. It was so treated prior to the Constitution of 1875. Laws 1871-1872, sec. 105. It was so treated by the Constitution of 1875, Constitution, art. 9, sec. 23. It has been so treated by subsequent legislation. Laws 1905, p. 272, now Sec. 11432, R. S. 1909. By the Constitution itself the Legislature has the same power over the city of St. Louis as it has over other cities and counties. Constitution, art. 9, secs. 20 to 25; State v. Telephone Co., 187 Mo. 83; State ex rel. v. Stobie, 194 Mo. 53. The collection of revenue in St. Louis is a subject under control of the Legislature, just as in all other counties in the State. State ex rel. v. Alt., 224 Mo. 510. The collector in St. Louis, being a county officer prior to the adoption of the Constitution of 1875, and being so treated by the Constitution itself and by subsequent legislation, the adoption of the charter could not change the character of the office. It still remains a county or State office. Henderson v. Koenig, 168 Mo. 367. Sec. 11432, R. S. 1909 (being the Act of 1905), cannot be construed so as to exclude the city of St. Louis. To do so would be to construe that act as special or local. The general law is not only capable of being construed so as to apply to all collectors in the State, including the collector in St. Louis, but the statutes specifically so provide. R. S. 1909, secs. 8057, 11434, 11448, 11460, 11464, 11471, 11476, 11481-XIV, 11481-XV.

Charles W. Bates and Edward W. Foristel for respondent.

(1) Sec. 11432, R. S. 1909, annuls section 1, article 4, of the old charter of the city of St. Louis in so far as it relates to the office of Collector of Revenue; also section 34 of article 5 of the old charter, which section undertakes to define his duties. Constitution 1875, art. 9, secs. 14, 20, 23, 25; St. Louis v. Dorr, 145 Mo. 482; State ex rel. v. Railroad, 117 Mo. 1; Ewing v. Hoblitzelle, 84 Mo. 64; State ex rel. v. Jost, 265 Mo. 72; Peterson v. Railroad, 265 Mo. 506; Kansas City v. Scarritt, 127 Mo. 642; State v. Bennett, 102 Mo. 356; State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Mason, 153 Mo. 23; Kansas City v. Hallette, 59 Mo.App. 160; Sec. 8057, R. S. 1909. (2) Unless the Act of 1905, providing for collectors of the revenue, now Sec. 11432, R. S. 1909, applies to the city of St. Louis, then it is a special law and a local act within the meaning of section 53, article 4, of the Constitution, and is void as being in contravention of the express terms of the Constitution. Henderson v. Koenig, 168 Mo. 356. (3) Respondent was legally elected Collector of the Revenue of the city of St. Louis at the general election held on November 7, 1916, and by virtue of such election assumed the duties of collector, the office at that time being vacant, there never having been an incumbent. State ex rel. v. Roach, 269 Mo. 500; State ex rel. v. Herring, 208 Mo. 729; Constitution, art. 5, sec. 11; Sec. 5828, R. S. 1909; State ex inf. v. Amick, 247 Mo. 292. (4) Respondent assumed the duties of the office to which he was elected November 7, 1916. The office of Collector of the Revenue having been established in the city of St. Louis by the Act of 1905, now Sec. 11432, R. S. 1909, and the office having been vacant from the time of its establishment by the Act of 1905, the Governor of Missouri having failed to act in filling the vacancy the people at the general election in 1916 undertook to elect, and did elect, respondent to fill the office of Collector of Revenue of the city of St. Louis. Thereafter, respondent received his certificate of election to such office from the election commissioners of the city of St. Louis, qualified by filing his bond, taking the oath of office and entering upon the discharge of his duties, and was filling the office when the Governor appointed May, so that there was no vacancy when the Governor, after having failed for four years to fill the office by appointment, undertook to appoint May. Sec. 5828, R. S. 1909.

Charles H. Daues and William H. Killoren, amici curiae.

(1) Under the Constitution the city of St. Louis is authorized to frame a charter for the government of the city. Article 9, sec. 20, Constitution. (2) Under the Constitution and laws the city of St. Louis is authorized by charter and ordinance to provide for the collection of State revenue. Sec. 11546, R. S. 1909; Art. 9, sec. 23, Constitution; State ex rel. v. Finn, 8 Mo.App. 348; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo.App. 379. (3) The repeal of a special act could not of itself put in force within the county of St. Louis the provisions of the general law applicable to the remainder of the State, notwithstanding the fact that the provisions of the general law are the same as those contained in the special law. State ex rel. v. Watson, 71 Mo. 470. (4) The city of St. Louis can only act through the instrumentality of its officers. State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo.App. 377; State ex rel. v. Finn, 8 Mo.App. 341. (5) All elective officers of the State are chosen at the general election held biennially on the Tuesday next following the first Monday in November. Article 8, sec. 1, Constitution. (6) The charter of 1876 as well as the charter of 1914, adopted by the people of the city of St. Louis, provides that all elective officers required by the charter or ordinance shall be chosen on the first Tuesday in April, and every four years thereafter. Pursuant thereto the Collector of the Revenue for the city of St. Louis, for the past forty years has been elected in April. Art. 2, sec. 1, Charter of 1876; Art. 2, sec. 1, Charter of 1914.

WILLIAMS, J. Graves, C. J., Walker, Faris and Blair, JJ., concur; Bond, J., concurs in result; Woodson, J., dissents.

OPINION

In Banc.

Quo warranto.

WILLIAMS J.

This is a proceeding in quo warranto instituted in this court by the Attorney-General to oust respondent from the office of Collector of the Revenue of the city of St. Louis.

The facts of the case, concerning which there is now no dispute, are correctly stated in his brief, by the learned Attorney-General, as follows:

"The first count of the petition is in the customary form in quo warranto.

"The second count informs the court and alleges that the respondent received the highest number of votes for the office of collector at a certain election held in St. Louis in April, 1914 (1913), but that the respondent was not elected and could not be legally elected at that time, and that by section 11432 of the Revised Statutes of 1909, it is provided that collectors should be elected at the general election in 1906 and every four years thereafter, but that respondent was not elected in 1906, nor at any general election occurring thereafter.

"That certain proceedings were taken by the Republican City Central Committee in October, 1916, in attempting to nominate the respondent for the office of collector, to fill a vacancy then existing in said office for the term ending in March 1919;...