The State ex rel. Rosenthal v. Smiley

• Decision Date: 03 July 1924
• Docket Number: 25082
• Citation: 263 S.W. 825,304 Mo. 549
• Parties: THE STATE ex rel. EDWIN ROSENTHAL v. RICHARD S. SMILEY et al., Judges of County Court, Appellants
• Court: Missouri Supreme Court

263 S.W. 825

304 Mo. 549

THE STATE ex rel. EDWIN ROSENTHAL v. RICHARD S. SMILEY et al., Judges of County Court, Appellants

No. 25082

Supreme Court of Missouri

July 3, 1924

Motion for Rehearing Denied July 3, 1924.

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

Reversed.

Joseph C. McAtee for relator.

(1) A public office is defined to be a special trust or charge created by law. The act under which relator was appointed (Art. 4, chap. 6, R. S. 1919), defines his qualifications duties, term and compensation, and declares that "he shall be commissioned as other officers are commissioned." This is sufficient to fix his status as a public officer. State ex rel. v. May, 106 Mo. 488; State ex rel. v. Knott, 207 Mo. 167; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v Shannon, 133 Mo. 139; State ex rel. v. Sheppard, 192 Mo. 497. (2) Being a public officer, relator could be removed from office only for cause, after charges filed and conviction of official misconduct or neglect of duty. Secs. 9175 to 9182, R. S. 1919; Mo. Constitution, art. 14, sec. 7; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v. Sheppard, 192 Mo. 497; Gracy v. St. Louis, 213 Mo. 384; State ex rel. v. Maroney, 191 Mo. 531; Mechem on Public Officers, sec. 461; Speed v. Common Council, 97 Mich. 198; Marbury v. Madison, 1 Cranch, 137. (3) The order of the county court appointing relator county counsellor was a ministerial act, and the court had no authority, either during the same or a subsequent term, to annul, vacate or set aside said order; and if it had such power, it could only be exercised after due notice to relator. State ex rel. v. Harrison, 141 Mo. 12; Caldwell v. Lockridge, 9 Mo. 362; Price v. Johnson, 15 Mo. 433; State ex rel. v. Treasurer of Callaway Co., 43 Mo. 228; Thompson v. Petitioners, 45 Mo. 54. (4) The appointment of relator to the office of county counsellor for a term of two years was proper and legal, although another had held the office for part of a term. Where only the length of the term is fixed by the Constitution or statutes, and neither the commencement nor termination is prescribed, and there is nothing establishing a term of office to exist between fixed dates only, nor any reference to an unexpired term, or to a vacancy in the office as distinct from the office itself, one regularly appointed thereto holds his office for the full term, and no part of a previous term during which another held the office, but who has vacated it, enters into the computation of the term for which the appointee holds. State ex inf. Hadley v. Corcoran, 206 Mo. 1; 50 L. R. A. (N. S.) 338. (5) Though the county court erred in appointing relator for a full term of two years instead of the unexpired term of Kiskaddon, this did not render the appointment void. The only effect would be to limit his term to that for which his predecessor was appointed. State ex rel. Brown v. Spitz, 127 Mo. 252.

C. C. Wolf and A. E. L. Gardner for respondent.

(1) The law is well settled that the Legislature may enact a law to become effective on the happening of a future contingency. Therefore, when the court, by its order of December 1, 1922, made its order creating the office of county counselor in St. Louis County, the office, as well as the term of two years from said date, became an existing fact, and as much so as though the office and the term thereof had been fixed by legislative enactment. Poindexter v. Pettis County, 246 S.W. 38. (2) After once creating the office of county counselor by the county court fixing the commencement of the term and fixing the salary for said term, the office cannot again be created and salary fixed for a term as of a different date. State ex rel. Withers v. Stonestreet, 99 Mo. 361; People v. Hall, 104 N.Y. 170. (3) Where the appointing officer, mistakenly supposing that such officer has power to make an appointment of a certain character or for a certain term, assumes to exercise that power and that alone, the appointment cannot be deemed an appointment for a different character or term which such appointing officer had the power, but not the intention, to make. People v. Hall, 104 N.Y. 170; 28 Cyc. 425, 426. (4) The county court by its order made and entered on the first day of December, 1922, appointing James C. Kiskaddon to the office of the county counselor for a term of two years from said date, exhausted its statutory power to create the office, and its attempt to again create the office on December 13, 1922, was a mere nullity. State ex rel. Dome v. Wilcox, 45 Mo. 462.

Ragland, J. All concur; David E. Blair, J., in result only.

OPINION

RAGLAND

This is an appeal from a judgment of the Circuit Court of St. Louis County quashing on certiorari a record and order of the county court of that county.

On December 1, 1922, and during its November term, 1922, the county court of St. Louis County made and caused to be entered on its records the following order:

"In the matter of the appointment of James C. Kiskaddon as County Counselor of St. Louis County, Missouri.

"Whereas the County of St. Louis in the State of Missouri now contains more than one hundred thousand inhabitants, according to the last decennial census of the United States, and is therefore entitled to a county counselor, under and by virtue of Article 4 of Chapter 6 of the Revised Statutes of Missouri, 1919. The roll being called, Fred C. Stille, Judge of the First District, votes Yes; J. Wm. Shields, Judge of the Second District, votes Yes, and John Wiethaupt, Presiding Judge, votes No. It is therefore ordered by the county court of said county that James C. Kiskaddon, who is learned in the law and over twenty-five years of age, be and he is hereby appointed county counselor for the term of two years, said term to begin on the first day of December, 1922, at a salary of three thousand dollars per year, to be paid quarterly upon warrants to be issued in favor of said Kiskaddon to the county treasurer for that purpose, and that a commission as county counselor be forthwith made, issued and delivered to said Kiskaddon."

On the same day a commission was issued pursuant to the order and delivered to Kiskaddon, who thereupon duly qualified as county counselor by taking the oath of office. On December 13th following, Kiskaddon tendered his resignation in writing, which was duly accepted by the court. Afterward but on the same day, the county court, without referring in anyway to its previous orders appointing Kiskaddon county counselor and subsequently accepting his resignation, made and caused to be entered of record the following order:

"In the matter of the appointment of Edwin Rosenthal, as County Counselor of St. Louis County, Missouri.

"Whereas, the County of St. Louis in the State of Missouri now contains more than one hundred thousand inhabitants according to the last decennial census of the United States, and is therefore entitled to a County Counselor, under and by virtue of Article 4 of Chapter 6 of the Revised Statutes of Missouri, 1919. The roll being called, Fred C. Stille, Judge of the First District, votes Yes; J. Wm. Shields, Judge of the Second District, votes Yes, and John Wiethaupt, Presiding Judge, votes No. It is therefore ordered by the County Court of said County that Edwin Rosenthal, who is learned in law, and over twenty-five years of age, be and he is hereby appointed County Counselor for the term of two years, said term to begin on the 15th day of December, 1922, at a salary of three thousand dollars per year, to be paid quarterly upon warrants to be issued in favor of said Rosenthal to the County Treasurer for that purpose, and that a commission as County Counselor be forthwith made, issued and delivered to said Rosenthal."

On the day that this order was made, relator, Rosenthal, was commissioned and took the oath of office. All of the judges composing the county court when the foregoing orders were made went out of office December 31, 1922, the date on which under the law their terms expired. On the coming in of the new county court, and on January 2, 1923, the court made and had entered of record the following order:

"Now on this second day of January, 1923, being one of the days of the November Term, 1922, of the County Court of St. Louis County, it is ordered by the court of its own motion, that the order made appointing Edwin Rosenthal, County Counselor on the 13th day of December, 1922, being one of the days of said November Term, 1922, of said court, be and the same is now hereby set aside, annulled and for naught held, said order being in words and figures as follows, to-wit:

"'In the matter of the appointment of Edwin Rosenthal, as County Counselor of St. Louis County, Missouri.

"Whereas the County of St. Louis in the State of Missouri, now contains more than one hundred thousand inhabitants, according to the last decennial census of the United States, and is therefore entitled to a County Counselor, under and by virtue of Article 4 of Chapter 6 of the Revised Statutes of Missouri, 1919. The roll being called, Fred C. Stille, Judge of the First District, votes Yes; J. Wm. Shields, Judge of the Second District, votes Yes, and John Wiethaupt, Presiding Judge, votes No. It is therefore ordered by the County Court of said County that Edwin Rosenthal, who is learned in law, and over twenty-five years of age, be and he is hereby appointed County Counselor for the term of two years, said term to begin on the 15th day of December, 1922, at a salary of three thousand dollars per year, to be paid quarterly upon warrants to be issued in favor of said Rosenthal to the County Treasurer for that purpose, and that a commission as County Counselor be forthwith made, issued and delivered...