The State ex inf. Hadley v. Corcoran

• Decision Date: 02 July 1907
• Citation: 103 S.W. 1044,206 Mo. 1
• Parties: THE STATE ex inf. HADLEY, Attorney-General, v. CORCORAN
• Court: Missouri Supreme Court

103 S.W. 1044

206 Mo. 1

THE STATE ex inf. HADLEY, Attorney-General, v. CORCORAN

Supreme Court of Missouri

July 2, 1907

Writ denied.

Herbert S. Hadley, Attorney-General, for informant; Nagel & Kirby of counsel.

(1) The act, with emergency clause, was approved April 11, 1879. It will be observed that the act does not in terms say that a jury commissioner shall be appointed in 1879 and every fourth year thereafter, but it does require the appointment of the first commissioner within thirty days from April 11, 1879 (and Ashley Cabell was actually appointed on May 6, 1879) and fixes his term at four years from and after the 1st day of May, 1879. This is equivalent to fixing a four-year term involving a new appointment every fourth year. State ex rel. v. Pearcy, 44 Mo. 162; State ex rel. v Stonestreet, 99 Mo. 361; State ex rel. v Parker, 30 La. Ann. 1182. That no other construction can be given to this act is apparent when we consider its provisions regarding the filling of vacancies. If the term of each appointee is a thing unto itself and has no reference to the beginning or ending of the terms of other appointees then no force can be given to the provisions in regard to filling vacancies "during the term for which any person was appointed thereto." If each new appointee begins a new term, then there can be, strictly speaking, no vacancy during a term, for the term of his predecessor must have ended when such predecessor died or left the office, and unless we construe the statute as fixing definite terms, the words "during the term" are meaningless. Sherman v. City of Des Moines, 100 Iowa 88. It is further contended that the statute confers no authority for appointments to fill unexpired terms. The statute does not say in so many words that appointments shall be made for unexpired terms, but its provisions do confer such authority. State ex rel. v. Spitz, 127 Mo. 252; State ex rel. v. Burkhead, 187 Mo. 14. (2) As we read it, the context of the statute in question leaves no room for construction. The language is plain and simple and cannot be misunderstood, but even if it be doubtful and susceptible of more than one interpretation, the fact that similar language in a prior statute had received a definite construction which construction had been acted upon for many years and accepted by the public, will be of great weight in determining the intention of the Legislature. Schawacker v. McLaughlin, 139 Mo. 333; Packard v. Richardson, 17 Mass. 144; Ferry v. Ridge, 56 Mo.App. 615; Venable v. Railroad, 112 Mo. 103; State ex rel. v. Railroad, 135 Mo. 618; Frazier v. Warfield, 13 Md. 279; Westbrook v. Miller, 56 Mich. 148; Kelley v. Multnomah Co., 18 Ore. 356; 2 Lewis' Sutherland on Statutory Interpretation, p. 888.

Walter B. Douglas and H. Chouteau Dyer for respondent.

(1) The act of April 11, 1879, expressly provides that all appointments shall be for the full term. It provides: 1. For the making of the appointment; 2. When it shall be made; 3. The period for which the appointee shall hold office. Laws 1879, p. 28; R. S. 1899, secs. 6539, 6541; compare, same, secs. 502, 503; same, secs. 7582, 7596. The difference in the language used in these various statutes indicates the purpose of the Legislature. Atty.-Gen. v. Brunst, 3 Wis. 787; State ex rel. v. Westworth, 56 Kan. 298. The words "in like manner," as used in the statute, mean equality and exact correspondence. State ex rel. v. Pike, 74 N.C. 531; Badger v. Daniel, 79 N.C. 372. (2) To create a term, of which there will remain an unexpired portion in the event of the death, etc., of the incumbent, the lawmaking power must prescribe consecutive periods for the occupation of the office, each with a fixed date of beginning and ending, following each other in regular order, the one beginning where the other ends. The statutes of Missouri create such a term in numerous instances: R: S. 1899, secs. 502, 503; same, secs. 7582, 7596; same, secs. 4698, 4699; same, secs. 4944, 4945; Laws 1903, p. 174, sec. 7; R. S. 1899, sec. 5753; same, sec. 8872; same, sec. 7624; compare same, sec. 7598; same, sec. 7596. In each of these cases the Legislature recognizes an unexpired term either by express words or by necessary implication. There is no such recognition in the statute here under consideration. McAfee v. Russell, 29 Miss. 84; Hughes v. Buckingham, 5 Sm. & M. 632; Sansbury v. Middleton, 11 Md. 296; People v. Wear, 13 Ore. 385; People v. Burbank, 12 Cal. 373; Crowell v. Lambert, 9 Minn. 283; People v. Townsend, 102 N.Y. 430; State ex rel. v. Spitz, 127 Mo. 252. This statute is unlike any other in the books. There is only one jury commissioner in the State. All appointments are to be made by the same body. The only matter of public policy involved is that it is in the interest of the State that the office shall be filled, so far as possible, for a series of full terms rather than for a number of "unexpired" ones. (3) The length of service of the incumbent being fixed by law, the appointment is for the full term, notwithstanding the fact that it purports to be for less. Stadler v. Detroit, 13 Mich. 346; Hale v. Bischoff, 53 Kan. 301; State ex rel. v. Stonestreet, 99 Mo. 361. (4) This act does not conflict with section 14, article 9, of the Constitution, which limits the terms of certain county, township and municipal officers to four years. (a) The jury commissioner is not a township officer. Constitution, art. 9, sec. 8. (b) The jury commissioner is not a municipal officer. Sec. 12 of Scheme; Constitution, art. 9, sec. 7. (1) He is not concerned in municipal affairs. 1 Dillon's Municipal Corporations, sec. 58; People v. Hurlbut, 24 Mich. 44; State ex rel. v. Valle, 41 Mo. 39. (2) He is not appointed by municipal authorities. Britton v. Steber, 62 Mo. 374; State ex rel. v. Meier, 96 Mo.App. 160. (c) The jury commissioner is not a county officer. 1. By the terms of the act he is to be appointed only in certain cities. 2. The office is not one historically connected with counties like, for example, the sheriff and the coroner. 3. The office has no constitutional connection with counties as, for example, the probate court. Henderson v. Koenig, 168 Mo. 367; State ex rel. v. Washburn, 167 Mo. 680. 4. The officer has no connection with county business. His duties are limited by city boundaries, even though the city may be part of a county. Sec. 8 of Art. 5. The word "county" as used in article 9, section 14, does not embrace the city of St. Louis. Cons. art. 6, sec. 37; Cons. art. 11, sec. 25; State ex rel. v. Walton, 69 Mo. 556; Spaulding v. Brady, 128 Mo. 653.

OPINION

In Banc.

Quo Warranto.

FOX, J.

This is a proceeding by information in the nature of quo warranto filed by the Attorney-General to test the right of respondent to the office of jury commissioner of the city of St. Louis. There is no dispute as to the facts in this controversy, hence there is no necessity for setting out in detail the agreed statement of facts disclosed by the record. The respondent in this case very clearly states the facts applicable to the question involved in this controversy.

On April 2, 1903, the expiration of the term of the then jury commissioner of the city of St. Louis occurring on May 1 1903, the judges of the said city duly appointed John G. Prather to said office; Col. Prather duly qualified and entered upon the performance of the duties of the office on May 1, 1903, and continued to perform the same until December 27, 1903, at which time he died; because of the vacancy thereby created, the respondent herein was, on January 5, 1904, appointed as such jury commissioner in accordance with the provisions of sections 6539 and 6541, Revised Statutes of Missouri, 1899; the appointment was made in writing as required by statute, and in said writing it was stated that the respondent was "to hold and to exercise the duties of said office for the remainder of the term of the said John G. Prather, deceased, late jury commissioner, which said term was for a period of four years from and after the 1st day of May, 1903." The respondent duly qualified and entered upon the discharge of his duties under such appointment, and continued to discharge the same. On April 26, 1907, the said judges undertook to appoint one George B. Teasdale as jury commissioner in place of the respondent, for a term beginning May 1, 1907. Acting under such appointment, the said Teasdale took the oath of office as prescribed by law, and did on May 1, 1907, endeavor to take possession of said office of jury commissioner, and the books, papers and paraphernalia pertaining thereto, but the respondent refused to allow the said Teasdale to take possession thereof and has himself remained in possession and claims the right to continue therein and to exercise the duties thereof.

The act of April 11, 1879 (Laws 1879, p. 28, R. S. 1899, secs. 6539 and 6541) provides:

"In every city in the State of Missouri, having over one hundred thousand inhabitants, it shall be the duty of the judge or judges of the court or courts having general jurisdiction of civil causes within such city, together with the judges of the court having jurisdiction within such city in cases of felony, or a majority of all such judges, to appoint, within thirty days after the passage of this act, and at such other times as hereinafter authorized, a suitable person, who shall, for at least five years next preceding his appointment, have been a resident of such city, to be jury commissioner for said city.

"Such appointment shall be made in writing and signed by the judges making the same. . . . The person so appointed shall hold said office for the term of four years from and after the first day of May in the year of his appointment unless he shall sooner cease to reside in...