State ex inf. Hadley v. Herring

106 S.W. 984, 208 Mo. 708, 1907 Mo. LEXIS 274

• Court: Supreme Court of Missouri
• Decided: December 24, 1907
• Status: Published

Opinion

GANTT, J.

This is a proceeding instituted in the circuit court of Chariton county by the Attorney-General of Missouri, at the relation of Cecil Wayland, against Edward IValter Herring, to determine the respective rights and claims of said Wayland and Herring to the office of collector of revenue of said county.

Herring’s claim to the office is by appointment made by the Governor on the 6th day of April, 1906, to fill a vacancy. Wayland was elected to the office at the general election on the 6th day of November, 1906, and thereafter qualified, and on the 11th day of December, 1906, demanded the office of Herring who refused to turn it over.

The pleadings consist of the information of the Attorney-General in the nature of a writ of quo warranto, setting out Herring’s appointment by the Governor to fill the vacancy on April 6, 1906, his qualification for and incumbency of the office, the election of Wayland at the general election on November 6, 1906, his qualification and demand for the office on December 11,1906, and Herring’s refusal to turn it over, together with a charge that Herring had intruded into, usurped and unlawfully exercised the functions of the office, and a prayer that he he ousted therefrom; and a demurrer thereto filed by the respondent.

The trial court sustained the demurrer; and, the relator declining to plead further, rendered judgment for the respondent; and from this judgment relator has appealed to this court.

The question at issue is: Who is entitled to the office from the time of Wayland’s qualification until the first Monday in March, 1907 ? ' Respondent claims that he is entitled to hold by virtue of the appointment of the Governor until the first Monday in March, 1907, basing his claim upon a number of constitutional provisions. The collector’s office is of statutory, not constitutional, origin. No such office is mentioned in the Constitution. It was created by the Legislature by authority of section 14 of article 91 of the Constitution, which is as follows: “Sec. 14. Extra officers, Duties and Terms. — Except as otherwise directed by this Constitution, the General Assembly shall provide for the election or appointment of such other county, township and municipal officers as public convenience may 'require; and their terms of office and duties shall be (prescribed by law; but no term of office shall exceed four years.”

Deriving its authority from this provision of the Constitution, the Legislature has created the office of ■collector of revenue, provided what the term of office shall be and how the officer shall be chosen. By the amendment by the session of 1905, the term is four years. [Laws 1905, p. 272.] This section ás amended reads as follows: “Section 9203. The Collector and his term of office. — The offices of sheriff and collector shall be distinct and separate offices in all the counties of this State, and at the general election in 1906, and every four years thereafter, a collector, to be styled the collector of the revenue, shall be elected in all the counties of this State, who shall hold their office for four years and until their successors are- duly elected and qualified : Provided, that nothing herein contained shall be so construed as to prevent the same person from holding both offices of sheriff and collector.”

Also deriving its authority from the above provision of the Constitution, the Legislature has provided that the collector’s office shall expire on the first Monday in March of the year in which he is required to make his final settlement for the tax book which was to he collected by him. [Sec. 9267, R. S. 1899.] This would necessarily mean the first Monday in March succeeding the election for the office of collector. If a collector were elected at the general election in November, 1906, as the above statute provides for, the last tax book to be collected by the old collector would be the tax book for the year 1906, and he would be required to make his last final settlement at a term of the county court to be held on the first Monday in March, 1907. [Sec. 9247, R. S. 1899'.] Also deriving its authority from the above provision of the Constitution, the Legislature has provided that when a vacancy occurs in the office of collector it shall be filled by the appointment by the Governor, and that the person appointed shall hold the office until the beginning of the succeeding term. [Sec. 7028, R. S. 1899.] This section is as follows: “Section 7028. Vacancies, How Filled.— Whenever any vacancy, caused in any manner or by any means whatsoever, shall occur or exist in any state or county office originally filled by election by the people, other than the office of lieutenant-governor, state senator, representative, sheriff or coroner, such vacancy shall be filled by appointment by the Governor; and the person so appointed shall, after having duly qualified and entered upon the discharge of his duties under such appointment, continue in such office until the first Monday in January nest following the first ensuing general election — at which general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term, as the case may be, and shall enter upon the discharge of the duties of such office the first Monday in January next following said election: Provided, however, that when the term to be filled begins or shall begin on any day other than the first Monday in January, the appointee of the Governor shall be entitled to hold such office until such other date. ’ ’

Relator claims that these enactments of the Legislature are in conflict with section 11, article 5 of the Constitution, which is as follows: “Sec. 11. Vacancy in Office — Governor May Fill, — When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” and that sections 7028 and 9267 were not enacted as required by the Constitution. He claims that just as soon as he was elected and qualified for the office respondent’s term was ended, and he was entitled to assume the office.

I. There is no dispute that there was a vacancy in the office at the time the Governor appointed Herring thereto. The demurrer admits that Wayland, the relator, was elected at the November election in 1906; that he possessed all the qualifications required by the statutes and the Constitution to be possessed by a collector of the revenue of the county, and that in due time he qualified in the manner required by law. Addressing ourselves to the contention of the relator that section 7028, Revised Statutes 1899, is unconstitutional and in conflict with section 11 of article 5 of the Constitution, we find that the first ground of this contention is that the subject of the bill of which section 7028 constitutes a part, is not clearly expressed in its title. The title to that bill is, ££ An Act to amend and revise chapter 2, title 2 of the general statutes of Missouri concerning popular elections.” This identical objection to this section was made in Mead’s case, 71 Mo. 266. At that time it was numbered 5527, R. S. 1879. In that case it was said that the section was in entire harmony with the title, because there was an obvious connection and congruity between the idea expressed in the title, “Concerning popular elections,” and that of providing for filling, by gubernatorial' appointment, vacancies temporarily occurring in offices filled in the first instance by an election and to be so filled again when the temporary exigency ceased to exist. That case has so often met the unqualified approval of this court on the subject of sufficiency of titles to legislative enactments within the meaning of section 28 of article 4 of the Constitution of this State, that we forbear further discussion. We think the objection is untenable.

It is also urged that said section is unconstitutional because it was first enacted as a part of a revised bill. This insistence seems to be predicated upon section 4.1 of article 4 of the Constitution, which says: ‘£ All the statute laws of a general nature shall be revised, digested and promulgated,” every ten years, and that therefore the Legislature could not make so radical a change of the law in a revised bill as was made by section 7028. When it is considered that a revised bill is passed with all the formality required for the enactment of any other law, is required to be read just as many times, authenticated in the same way and receive the Governor’s approval in the same manner as any other bill, we are not impressed with the strength of this objection. Having reached the conclusion that the title to this bill was entirely sufficient under section 28 of article 4 to support section 7028, the fact that it was passed in a revised bill covering the whole subject of popular elections and the filling of vacancies, in our opinion in no manner impairs its validity as a constitutional law.

Again it is urged that both section 7028 and 9267 are unconstitutional, because each of said sections was enacted as an amendment to the previous law on that subject, in that, the act in which said amendments appear for the first time, did not comply with the constitutional provision found in section 34 of article 4, by setting forth the words stricken out of the old statute, or the words inserted in lieu thereof in the new, but in each instance the statute as amended was set forth in full. Section 34 of article 4 provides: “No act shall be amended by providing that designated words thereof be stricken out, or that designated words be inserted, or that designated words be stricken out and others inserted in lieu thereof; but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof together with the act or section amended, shall be set forth in full as amended.” This section of the Constitution has been before this court for consideration on a number of occasions, and the objection now made to these sections has often been made. In State v. Chambers, 70 Mo. l. c. 628, it was said: “The object of the prohibition from making amendments in such a way was to prevent the laws from becoming involved in the confusion which would necessarily result from such legislation; and to prevent the inconvenience it would occasion of hunting through various books to find the act amended and then apply to it the amendatory act to ascertain what the law as amended was. To prevent this it requires the entire act, when the amendment relates to the entire act, to be set forth in full, or when the amendment relates only to cex’tain sections of an act to be amended, that only the sections as amended should be fully set out.” That ruling was followed in Morrison v. Railroad, 96 Mo. 602, where it was held: “Section 34 of article 4 of the Constitution of 1875 does not require that an amendatory act should state that certain words of a specific section are stricken out and others inserted, and then set out in full the section as amended. It is sufficient if the section as amended be set out in full.” In Cox v. Railroad, 174 Mo. l. c. 601, this same question was again before this court and the construction given in the foregoing cases was adhered to and declared to be the settled law of this State. Accordingly, this point also must be ruled against the relator.

We are thus brought to> the main proposition urged by the learned counsel for the relator, namely, that section 7028 is invalid for the reason that it is in conflict with section 11 of article 5 of the Constitution, which ordains, “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.” Relator’s contention is that the respondent Herring, the Governor’s appointee, under section 11 of article 5, could hold the office of collector of Chariton county until relator Way land was elected at the general election in 1906, and qualified according to law, and no longer, and that the Legislature had no power by section 7028, Revised Statutes 1899, or any other statute, to extend the tenure of respondent to said office beyond the time of the election and qualification of his successor, because to do so would be an enlargement of the constitutional limitation. The respondent does not controvert the proposition that a statute can neither lengthen nor shorten the tenure of an office when it is fixed by the Constitution, but he says that sections 7028 and 9267 are perfectly constitutional enactments and by virtue of 7028 respondent was entitled to bold the office under his appointment until the first Monday in March, 1907, and that section 7028 does not contravene the constitutional provision in section 11, article 5, when properly construed.

The framers of our Constitution when they drew section 11, article 5 thereof, were considering vacancies in public offices; they foresaw that for various reasons such vacancies were inevitable, and in order to prevent and provide for these vacancies as far as possible in order that the public good should not suffer thereby, they framed this section, and gave to the Governor the power to fill these vacancies when they wex^e not otherwise provided for by law. "When this vacancy occurred in the office of collector of the revenue in Chariton county, the condition existed which authorized the Governor to fill it by appointment. Whether we look to section 11 of article 5 of the Constitution or to section 7028, Eevised Statutes 1899; for authority to fill the vacancy, we find that it is vested in the Governor. The obvious purpose in conferring this authority upon the Governor was to prevent any interregnum in the office, and to have soxne person always authorized to discharge its duties. The language of the Constitution is: “He shall appoint a person to fill such vacancy.” Giving these words their natural significance, and it has often been held that the word, “vacancy” has no technical meaning', but must be understood with reference to the context in which it is found, they import that the appointee 'of the Governor would be entitled to hold the office until the end of the term in which the vacancy occurs. And when the additional words of the section, to-wit: “Shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” are considered, we think the obvious purpose was to extend the appointee ?s tenure after the end of the term in which the vacancy occurred until everything has been done which is required by law to give title to the office to another person. The office of collector of the revenue is a statutory office, an office which the Legislature under the express language of section 14 of article 9 of the Constitution was authorized to create and to prescribe the term of the incumbent thereof, which should not exceed four years, and how the officer should be chosen. As said by Judge Scott, in State ex rel. v. Lusk, 18 Mo. 333, the General Assembly “may take the appointing power from the Governor, and the power of filling vacancies in such cases may be conferred on others than the executive. In the exercise of the power to create offices, they may declare when they are vacant and who shall fill the vacancies.” As the Constitution does not forbid, but expressly authorizes the Legislature to create the office of collector of revenue, it may prescribe how it shall be filled. By section 9203 as amended by the Act of 1905', the Legislature provided for the election of a collector of the revenue in all .the counties of the State at the general election in 1906, and every four years thereafter, and by section 7028 it provided for the filling of a vacancy in said office by appointment by the Governor and provided further that “the person so appointed shall, after having duly qualified and entered' upon the discharge of his duties under such appointment, continue in such office until the first Monday in January next following the first ensuing general election — at which said general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term, as the case may be, and shall enter upon the discharge of the duties of such office the first Monday in January next following said election: Provided, however, that when the term to be filled begins or shall begin on any day other than the first Monday in January, the appointee of the Governor shall he entitled to hold such office until such other date. ” ■ Now, it is alleged in the petition, that on Tuesday the 6th day of November, in the year 1906, the relator, Wayland, was elected to the office of collector of the revenue of Chariton county, received a certificate of his election thereto, in proper and due time executed and filed his bond in the amount fixed by the statute, which was approved by the county court of Chariton county and by the State Auditor, and took the oath prescribed by law to be taken by collectors of the revenue, and on the 19th day of November, 1906, a commission was issued to him by the Governor,by which he was commissioned collector of the revenue of said county. Now, by virtue of the amendment of 1905 to section 9203, the- term of his office was four years, and by section 9267, the collector’s office expires on the first Monday in March of the year in which he is required to make his last final settlement for the tax book, which was to be collected by him, necessarily meaning the first Monday in March succeeding the election for the office of collector, consequently under these various legislative enactments, relator’s term of office would begin on the first Monday in March, 1907, and the respondent’s right to hold the office by his appointment from the Governor would -cease on that day. But it is said by relator that respondent has no right to assume that relator was elected for the term beginning on the first Monday in March, 1907, and for no other term. It is plain that he was elected either for the full term or the unexpired- term; he could not have been elected to two terms. As we have already seen, the regular term had a day certain of beginning and a day certain for ending. It began on the first Monday in March, 1907, and ended four years later. It is not alleged in the information that -relator was elected for an unexpired term, and section 9203 makes no provision for the election of a collector for an unexpired term. The only authority for electing a collector for an unexpired term is found in section 7028, hut by the express provision of that section it would make no difference whether relator was elected for an unexpired term or for a regular term, as in either event, his term has a definite and certain date of beginning, to-wit, the first Monday in March, 1907, and until that date arrived, he was not entitled to assume the duties of the office. But we take it any way that a fair construction of the relator’s petition means that he was elected for the regular term at the general election in 1906, and not for any unexpired term. Certain it is that the statute did not provide for the election of two officers for the same office, one for the unexpired and one for the ensuing regular term, and we can hardly think that relator desires us to hold that he was elected for a term ending March the first, 1907. Moreover, if relator’s contention is correct, that he was entitled to this office as soon as he was elected, and that it continued for four years from the first Monday in March, 1907, his term would be longer than four years, which is expressly prohibited by section 14 of article 9 of the Constitution.

As the Legislature was given the power by section 14 of article 9 to create this office and prescribe the length of the term thereof and the duties of the incumbent, as said by Judge Scott, they had the power to deprive the Governor of the appointing power and could have conferred the power of filling vacancies on others than the executive. In the exercise of the power to create the office they could declare when it was vacant and who should fill the vacancy, and by the provisions which we have cited they have created the office of collector of the revenue, and prescribed the term and the duties thereof, and have provided for the filling of vacancies, all within the constitutional power of the General Assembly, and this being so, they have provided by law for all the contingencies that have arisen in this case within the meaning of section 11 of article 5, and when the Governor made his appointment of the respondent in this case he was acting under and by virtue of the provisions of section 7028, and that section did not impinge upon Ms constitutional authority. There has been a uniform legislative construction of section 11 of article 5 of the Constitution since its adoption. That construction has been that the Legislature could not only provide who should make appointments to fill vacancies in office, but might also prescribe the term of the persons so appointed to fill vacancies whether made by the Governor or some other officer or body. "While courts are not bound to follow legislative construction, yet when such construction has been contemporaneous and long continued, it is entitled to great weight. [Railroad v. Brick Co., 85 Mo. l. c. 332; State ex rel. v. Stonestreet, 9h Mo. 361; 6 Am. and Eng. Ency Law, 931.]

In State ex rel. v. McGovney, 92 Mo. 428, there was a contest between Prewitt and McGovney over the office of treasurer of Vernon county. McGovney was elected at the November election, 1884, and Prewitt in 1886. At the same election at which Prewitt was elected the county adopted the townsMp organization law. During McGovney’s term (Laws 1885-, p. 108), the statute fixing the treasurer’s office at two years was amended by adding the proviso: ‘ ‘ That in counties having adopted, or which may hereafter adopt, township organization, the term of office of said treasurer shall be extended to the first day of April next after the election of his successor.” The question was whether McGovney had a right to hold over until the first Tuesday in April, 1887, it being contended by Prewitt that this amendment was in conflict with section 8, article 14, of the Constitution, which provides that the term of no office shall he extended for a longer period than that for which such officer1 was elected or appointed. It was held that the statute was not in conflict with the Constitution and that Prewitt was not entitled to the office until the first Tuesday in April. On the question of when Prewitt would he entitled to the office the court said: “Mr. Prewitt’s term does not begin until April, and hy express provision of the Constitution and the statute, McGovney holds until that time.” The provision of the Constitution here referred to is section 5 of article 14 of the Constitution which reads: “In the absence of any contrary provision all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successor shall he duly elected and qualified.” The statutory provision in section 8847, Revised Statutes 1899, is to the same effect. The reasoning in that case would seem to control in this.

Learned counsel for the relator have with great industry collected cases from the courts of last resort in a number of the States in the Union, but the length of this opinion forbids that we shall review them seriatim. The brief indicates great research and discrimination in the selection of these cases, and we have read them with much interest, hut a critical examination of the statutes themselves and of the constitutions under.which they were drawn will, we think, demonstrate that there is a difference in the language of the constitutional provision upon which the cases are decided. In a number of them the law provides for the election of a successor for the unexpired term, or the office is one the beginning of the term of which is not definitely fixed by law, and one which the officer elected or appointed to is .entitled to assume immediately upon his election or appointment and qualification. But we find no case which holds that where an officer, as the relator in this case, has been elected to a term of office which had a definite and certain date of commencement, he should be adjudged to be entitled to that office before that date. And we find no case which under a constitutional provision like our section 14 of article 9 conferring express power upon the Legislature to create statutory offices has denied the Legislature the right to provide for the filling of the vacancies in such offices as has been done in this State by section 7028, Revised Statutes 1899.

Our conclusion is that section 7028 does not contravene the Constitution of this State, but finds ample support in section 14 of article 91 thereof, and that it in no manner conflicts with section 11 of article 5, which provides only for the filling of vacancies when no other provision is made by law.

The judgment of the circuit court is affirmed.

Fox, P. J., and Burgess, J., concur.