The State ex rel. Jones v. Smiley

• Decision Date: 27 September 1927
• Docket Number: 27203
• Citation: 300 S.W. 459,317 Mo. 1283
• Parties: The State ex rel. Wilfred Jones, Appellant, v. R. S. Smiley, George Bobring and William J. Preiss, Judges of County Court
• Court: Missouri Supreme Court

300 S.W. 459

317 Mo. 1283

The State ex rel. Wilfred Jones, Appellant, v. R. S. Smiley, George Bobring and William J. Preiss, Judges of County Court

No. 27203

Supreme Court of Missouri

September 27, 1927

Motion for Rehearing Denied December 2, 1927.

Appeal from Circuit Court of St. Louis County; Hon. J. W McElhinney, Judge.

Affirmed.

James Booth for appellant.

(1) The office of county counselor is a public office and one holding it a public state officer. Dillon on Mun. Corp. (4 Ed.) 99 sec. 58; State ex rel. Rosenthal v. Smiley, 263 S.W 825; State ex rel. v. Moorehead, 256 Mo. 683; State ex rel. v. Shepherd, 192 Mo. 497; State ex rel. v. Dierberger, 90 Mo. 365; Secs. 736-784, R. S. 1919. (2) Relator having been duly appointed to the office of county counselor for a term that existed in law and at a time when the appointment could be made and having qualified and assumed the office could only be removed by a proceeding under the statutes providing for the removal of public officials. State ex rel. v. Moorehead, 256 Mo. 683; State ex rel. Davidson v. Caldwell, 276 S.W. 631; State ex rel. v. Maroney, 191 Mo. 531; Gracy v. St. Louis, 213 Mo. 384; Meacham on Public Officers, sec. 461; Throop on Public Officers, p. 349, sec. 349; Sec. 9175, R. S. 1919. (3) When the appointing power has been exercised by the county court to fill the office of county counselor it has no further power to rescind or revoke the appointment and any attempt to do so is invalid. Throop on Public Officers, supra; Thompson v. Petitioners, 45 Mo. 54; Sturgeon v. Hampton, 88 Mo. 208; State ex rel. v. Shortridge, 56 Mo. 126; State v. Oliver, 208 S.W. 112; Mead v. Jasper County, 266 S.W. 467; State v. Morgan, 144 Mo. 40. (4) The appointment of relator by the county court on December 15, 1924, after the Kiskaddon term had expired, was not void "as carrying on its face the circumstances considered, the appearance of not having been made in good faith and solely in the public interest," and such appointment was not under the circumstances for the purpose of "forestalling the rights and prerogatives of their own successors" by appointing relator to an office the term of which expired after their power to appoint has itself expired. The courty court, which appointed relator county counselor, had between December 1 and December 31, 1924, inclusive, in which to fill the office of county counselor by appointment, and their act in doing so has express legislative approval. Secs. 782, 2692, 2374, R. S. 1919; 28 Cyc. 483 (note 11). (5) A statute must not be construed so as to involve an absurdity. State v. Bixman, 162 Mo. 1; Cit. Nat. Bank v. Graham, 147 Mo. 250; Heman Const. Co. v. Loevy, 179 Mo. 455. (6) In interpreting a statute the consequences must be considered. Steppacher v. McClure, 75 Mo.App. 135. (7) The very highest evidence of the public policy of a State is its statutory law. Moorehead v. United Rys. Co., 119 Mo.App. 541. (8) When the county court appointed Kiskaddon county counselor on December 1, 1922, that appointment, being the first one made, fixed the beginning of the term of that office as of December 1. State ex rel. Rosenthal v. Smiley, supra. (9) The term of office beginning December 1 would, of course, expire on December 1 two calendar years thereafter, the rule being to exclude the first day and to count the last day in computing the time. R. S. 1919, sec. 7058; State ex rel. v. Stonestreet, 99 Mo. 361; State ex rel. v. Perkins, 139 Mo. 106.

A. E. L. Gardner, Henry Higginbotham and John A. Nolan for respondents.

(1) The action of the county court in making the order of December 15, 1924, two weeks before the members of the new county court were to take office, appointing relator to the office of county counselor, was and is void, because it was contrary to public policy in that, the circumstances considered, and the whole record considered, it was done in bad faith and not solely in the interest of the public and with a desire to forestall the prerogatives of their successors in office. State ex rel. Rosenthal v. Smiley, 263 S.W. 825. (2) The appointment of said Jones (a) was for a term which did not exist in law, and (b) there was no vacancy in the office of county counselor at the time the order was made, and (c) even if there had been a vacancy, the appointment should have been for the balance of the unexpired term, ending two years from the first day of January, 1923. Laws 1887, pp. 129-131; R. S. 1889, secs. 674-677; R. S. 1899, secs. 4987-4990; Laws 1901, p. 149. (3) In the interpretation of statutes, clauses or sections or parts of a statute which have been repealed or which have expired may still be considered in construing the provisions which are still in force. Sales v. Barber Asphalt Paving Co., 166 Mo. 678; State v. Bengsch, 170 Mo. 108; State ex rel. v. Davis, 284 S.W. 470; Ex parte Crow Dog, 109 U.S. 556; Viterbo v. Friedlander, 120 U.S. 725; Bank v. Collector, 3 Wall. 495. (4) The revision of a law does not have the effect of making the revised law entirely original so as to be construed as though none of its provisions had any effect but from the date of the revised law. Where a former provision is continued in a revised law it operates only as a continuance of its existence and not as an original act. This rule is peculiarly applicable when the revised law, as in the revised bill of 1889, refers to the original, repeated in haec verba, and refers to the original "Laws 1887, p. 130." St. Louis v. Alexander, 23 Mo. 509; City Cape Girardeau v. Riley, 52 Mo. 428; Dart v. Bagley, 110 Mo. 52; State ex rel. v. Stone, 152 Mo. 202; Paddock v. Mo. Pac. Ry., 155 Mo. 524; Timson v. Coal Co., 220 Mo. 580; Belfast Inv. Co. v. Curry, 264 Mo. 483; Secs. 6606, 6607, R. S. 1889; United States v. Lecher, 134 U.S. 624. (5) Where the Legislature has fixed the date of the commencement of the first appointee's official term, such initial point, being once made sure and steadfact, would recur at every corresponding period of two years. State ex. rel. v. Stonestreet, 99 Mo. 361; State ex inf. v. Williams, 222 Mo. 268. (6) The revised bill of June 1, 1889, merely carrying forward four of the seven sections or parts of the Act of 1887, did not have the effect of repealing the omitted sections or parts of the Act of 1887. State ex rel. v. Patterson, 207 Mo. 129; State ex inf. v. Amick, 247 Mo. 271; State ex rel. v. Davis, 284 S.W. 470.

OPINION

Blair, J.

Certiorari issued out of the Circuit Court of St. Louis County to the judges of the county court of said county. On final hearing there, the writ was quashed and relator in that court was granted an appeal to this court. We will likewise refer to him as "relator" to avoid confusion.

On March 18, 1925, relator filed his petition in the Circuit Court of St. Louis County praying for a writ of certiorari. In said petition it was alleged that relator was duly appointed and thereafter qualified as county counselor of St. Louis County, on December 18, 1924, pursuant to an order of the county court of December 15, 1924; that thereafter, on January 3, 1925, and without notice to relator, respondents made an order setting aside said order of December 15, 1924, in a wrongful and illegal attempt to deprive relator of his office as county counselor, and that respondents were refusing to permit relator to serve as such county counselor and to perform the duties thereof, although he was ready, willing and qualified to perform such duties. It was further alleged that the respondents made an order on January 3, 1925, appointing John A. Nolan as county counselor for the remainder of the term expiring November 30, 1926.

It is alleged that the action of respondents in making the order of January 3, 1925, was in violation of Section 5, Article XIV, of the Missouri Constitution, and Article II, Chapter 77, Revised Statutes of Missouri for 1919, in that "no proceedings had been filed against him seeking his removal from said office on any charges or pretended charges affecting his right to hold said office, and that said orders of respondents or said court made on the 3rd day of January, 1924 (1925), are arbitrary, illegal, void and of no effect in law, and are in violation of the rights and interests of your relator."

It is alleged that said orders were final and that relator had no remedy by appeal, but that certiorari was his only remedy. Relator therefore prayed the court to issue its writ of certiorari to bring up the records of respondents and that upon review the said two orders of January 3, 1925, be declared void and of no effect. The writ issued. Thereafter respondents filed their demurrer to the petition and also filed their motion to quash the writ. Upon hearing the trial court sustained both motions. Thereafter, on motion of relator, the trial court set aside its orders sustaining the demurrer to the petition and the motion to quash the writ and such demurrer and motion to quash were thereupon overruled.

Thereafter respondents filed their return. Certified copies of the following proceedings were included therein, to-wit:

Order of December 1, 1922, putting the office of county counselor into effect in St. Louis County and appointing James C. Kiskaddon as such county counselor, fixing his term of office at two years from December 1, 1922, and providing for a salary of $ 3,000 per annum, payable quarterly.

Order of December 13, 1922, accepting the resignation of James C. Kiskaddon as county counselor.

Order of December 13, 1922, purporting to establish the office of county counselor in said county and appointing Edwin Rosenthal thereto for a term of two years from December 15, 1922, fixing his salary, etc.

Order of January 2, 1923, setting aside the order of December 15 1922, appointing Edwin...