KENNISH, J.
— This is an original proceeding instituted in this court by the Attorney-General, by filing an' information in the nature of quo warranto, at the relation of Robert S. Ryors, and against the respondent, Ransom A. Breuer.
By stipulation of the parties the issuance of the preliminary writ was waived and respondent voluntarily entered his appearance and filed his return to the information. Relator filed a motion for judgment of ouster notwithstanding the return and an issue of law isi thus presented for decision.
It appears from the facts set forth in the information and return, which are either admitted or not denied, that respondent was the collector of the revenue of Gasconade county for the term ending on the first [245]*245Monday in March, 1911; that relator was the judge of the thirty-second judicial circuit of this State for the term ending January first, 1911; that while holding the said office of collector, in the year 1910, respondent was regularly nominated and elected to the office of judge of said judicial circuit for a term of six years, commencing on the first day of January, 1911; that on the 19th day of December 1910, the Governor of this State issued to respondent a commission as judge of said circuit for the term of six years ; that on the 20th day of December respondent tendered to the Governor his resignation of the office of collector, to take effect December 29th, 1910; that the Governor accepted his resignation, and appointed as respondent’s successor for the unexpired term of said office of collector, Henry O. Straek, who duly qualified and assumed the duties of the office on the 31st day of December, 1910; that on the said 31st day of December respondent made final settlement as ■ collector with the county court of Gasconade county and accounted for and paid over all public money in his hands, transferred to his successor in office all tax books in his custody and received receipts and a full acquittance therefor; that on the 2d day of January, 1911, respondent qualified1 as judge of said circuit and entered upon the discharge of the duties of the office and so continued in the discharge of such duties until the filing of his return herein. The foregoing is deemed a sufficient statement of the facts necessary to a decision of this ease.
Eelator makes no contention that the respondent was in default in accounting for or paying over all of the public money that came into his hands as collector during his term of office, nor that he failed to surrender and deliver to his succesor all of the tax books in his custody as such officer.
Two ^propositions are advanced by relator as entitling him to the writ of ouster: (1). That respondent [246]*246was not eligible to be a candidate at tbe primary election, nor eligible to election at tbe general election, as judge of said circuit, because at said time be was bolding tbe office of collector .and bad- not accounted for and paid over all tbe public money for wbicb lie was accountable. (2). That respondent, at tbe time be pretended to qualify and enter upon tbe duties of tbe office of judge of said circuit, was ineligible and disqualified to bold the same, for the reason that he had not accounted for and paid over to the State of. Missouri and the county of Gasconade all sums, on the tax books delivered to him and1 with which he was charged and for which he was accountable thereon and was not finally discharged from all legal liability thereon.
Section 19, article 2, of the Constitution of this State is as follows: “Collectors, Receivers, etc., in Default, Ineligible to Office. That no person who is now or may hereafter become a collector or receiver of public money, or assistant or deputy of such collector or such receiver, shall be eligible to any office of trust or profit in tbe State of Missouri under tbe laws thereof, or of any municipality therein, until be shall have accounted for and paid over all the public money fox which he may be accountable. ”
And section 11446, Revised Statutes, 1909, provides : “No collector or holder of public moneys, or any assistant or deputy of such holder or collector of public moneys, shall be eligible or appointed to any office of trust or profit until he shall have accounted for and paid over all sums fo,r which he may be accountable.”
Upon these constitutional and statutory provisions relator maintains that: ‘ ‘ The great weight of authority supports the proposition that the word eligible, as used in constitutions and statutes, concerning elections to office, means the capacity to hold the office at the time of the election, so that the subsequent [247]*247removal of the disability will not remove the incompetency.” Many authorities are cited from the other states, but none from this State, as sustaining relator’s contention. Relator concedes that “there are some opposing cases,” and he cites cases from other states holding the opposing doctrine, and continues: “Nor is our contention, supra, in accord with the observation of Judge Wagner in Owens v. Draper, 45 Mo. 355.”
In the Draper Case, decided by this court in 1870', the clause of the Constitution in judgment was the following: “No member of Congress, or person holding any lucrative office under the United States or this State (militia officers, justices of the peace and notaries public excepted), shall he eligible to either house of the General Assembly, or shall remain a member thereof, after having accepted any such office or seat in either house of Congress.” The question there for decision was whether the relator, Owens, who had been elected to the General Assembly of this State while holding the office of circuit judge, was entitled to draw his salary as judge after he had qualified and was discharging his duties as a member of the General Assembly. His term as judge had. not expired and he had not resigned. Speaking for the court, Judge Wagner said: “Under this provision a judge of a court of record is clearly ineligible to a seat in either house of the Legislature whilst he holds the office of judge. The existence of the two offices in the same individual ist incompatible, and is peremptorily prohibited. By the phrase ‘shall not be eligible’ I do not think it was intended to prohibit a person who occupied the position of judge from running for or being elected to the Legislature. But if he should run and be elected, he would have to make his choice of which office he would retain, and his acceptance of one would necessarily operate as a vacation of the other. ’ ’
. The' law as declared in that case is directly ap[248]*248plicable and controlling upon the point under consideration in the case before us. It may be conceded and it seems to be the fact that as stated in 29 Cyc. 1376, “Most of -the cases hold that the term ‘eligible’ as used in a constitution or statute means capacity to be chosen, and that therefore the qualification must exist at the time of the election or appointment;” but there is respectable authority to the contrary, including a decision of this court and we think based upon the better reason. Besides, contemporaneous construction, as shown in the unquestioned recognition for forty years of the eligibility to¡ election to office of incumbents of the offices of county collector, county treasurer, state treasurer, sheriff, county clerk, circuit clerk, -and many others that could be named, all collectors or receivers of public money, is a cogent reason for holding against relator’s contention.
Free access — add to your briefcase to read the full text and ask questions with AI
KENNISH, J.
— This is an original proceeding instituted in this court by the Attorney-General, by filing an' information in the nature of quo warranto, at the relation of Robert S. Ryors, and against the respondent, Ransom A. Breuer.
By stipulation of the parties the issuance of the preliminary writ was waived and respondent voluntarily entered his appearance and filed his return to the information. Relator filed a motion for judgment of ouster notwithstanding the return and an issue of law isi thus presented for decision.
It appears from the facts set forth in the information and return, which are either admitted or not denied, that respondent was the collector of the revenue of Gasconade county for the term ending on the first [245]*245Monday in March, 1911; that relator was the judge of the thirty-second judicial circuit of this State for the term ending January first, 1911; that while holding the said office of collector, in the year 1910, respondent was regularly nominated and elected to the office of judge of said judicial circuit for a term of six years, commencing on the first day of January, 1911; that on the 19th day of December 1910, the Governor of this State issued to respondent a commission as judge of said circuit for the term of six years ; that on the 20th day of December respondent tendered to the Governor his resignation of the office of collector, to take effect December 29th, 1910; that the Governor accepted his resignation, and appointed as respondent’s successor for the unexpired term of said office of collector, Henry O. Straek, who duly qualified and assumed the duties of the office on the 31st day of December, 1910; that on the said 31st day of December respondent made final settlement as ■ collector with the county court of Gasconade county and accounted for and paid over all public money in his hands, transferred to his successor in office all tax books in his custody and received receipts and a full acquittance therefor; that on the 2d day of January, 1911, respondent qualified1 as judge of said circuit and entered upon the discharge of the duties of the office and so continued in the discharge of such duties until the filing of his return herein. The foregoing is deemed a sufficient statement of the facts necessary to a decision of this ease.
Eelator makes no contention that the respondent was in default in accounting for or paying over all of the public money that came into his hands as collector during his term of office, nor that he failed to surrender and deliver to his succesor all of the tax books in his custody as such officer.
Two ^propositions are advanced by relator as entitling him to the writ of ouster: (1). That respondent [246]*246was not eligible to be a candidate at tbe primary election, nor eligible to election at tbe general election, as judge of said circuit, because at said time be was bolding tbe office of collector .and bad- not accounted for and paid over all tbe public money for wbicb lie was accountable. (2). That respondent, at tbe time be pretended to qualify and enter upon tbe duties of tbe office of judge of said circuit, was ineligible and disqualified to bold the same, for the reason that he had not accounted for and paid over to the State of. Missouri and the county of Gasconade all sums, on the tax books delivered to him and1 with which he was charged and for which he was accountable thereon and was not finally discharged from all legal liability thereon.
Section 19, article 2, of the Constitution of this State is as follows: “Collectors, Receivers, etc., in Default, Ineligible to Office. That no person who is now or may hereafter become a collector or receiver of public money, or assistant or deputy of such collector or such receiver, shall be eligible to any office of trust or profit in tbe State of Missouri under tbe laws thereof, or of any municipality therein, until be shall have accounted for and paid over all the public money fox which he may be accountable. ”
And section 11446, Revised Statutes, 1909, provides : “No collector or holder of public moneys, or any assistant or deputy of such holder or collector of public moneys, shall be eligible or appointed to any office of trust or profit until he shall have accounted for and paid over all sums fo,r which he may be accountable.”
Upon these constitutional and statutory provisions relator maintains that: ‘ ‘ The great weight of authority supports the proposition that the word eligible, as used in constitutions and statutes, concerning elections to office, means the capacity to hold the office at the time of the election, so that the subsequent [247]*247removal of the disability will not remove the incompetency.” Many authorities are cited from the other states, but none from this State, as sustaining relator’s contention. Relator concedes that “there are some opposing cases,” and he cites cases from other states holding the opposing doctrine, and continues: “Nor is our contention, supra, in accord with the observation of Judge Wagner in Owens v. Draper, 45 Mo. 355.”
In the Draper Case, decided by this court in 1870', the clause of the Constitution in judgment was the following: “No member of Congress, or person holding any lucrative office under the United States or this State (militia officers, justices of the peace and notaries public excepted), shall he eligible to either house of the General Assembly, or shall remain a member thereof, after having accepted any such office or seat in either house of Congress.” The question there for decision was whether the relator, Owens, who had been elected to the General Assembly of this State while holding the office of circuit judge, was entitled to draw his salary as judge after he had qualified and was discharging his duties as a member of the General Assembly. His term as judge had. not expired and he had not resigned. Speaking for the court, Judge Wagner said: “Under this provision a judge of a court of record is clearly ineligible to a seat in either house of the Legislature whilst he holds the office of judge. The existence of the two offices in the same individual ist incompatible, and is peremptorily prohibited. By the phrase ‘shall not be eligible’ I do not think it was intended to prohibit a person who occupied the position of judge from running for or being elected to the Legislature. But if he should run and be elected, he would have to make his choice of which office he would retain, and his acceptance of one would necessarily operate as a vacation of the other. ’ ’
. The' law as declared in that case is directly ap[248]*248plicable and controlling upon the point under consideration in the case before us. It may be conceded and it seems to be the fact that as stated in 29 Cyc. 1376, “Most of -the cases hold that the term ‘eligible’ as used in a constitution or statute means capacity to be chosen, and that therefore the qualification must exist at the time of the election or appointment;” but there is respectable authority to the contrary, including a decision of this court and we think based upon the better reason. Besides, contemporaneous construction, as shown in the unquestioned recognition for forty years of the eligibility to¡ election to office of incumbents of the offices of county collector, county treasurer, state treasurer, sheriff, county clerk, circuit clerk, -and many others that could be named, all collectors or receivers of public money, is a cogent reason for holding against relator’s contention.
The sheriff is a receiver of public money and is required by statute to account therefor, yet the same convention that adopted the section relied upon by relator fixed the term of office of sheriff at two years- and provided that he should be “eligible only four years in any period of six,” thus recognizing his eligibility as a candidate to succeed himself. The term of county treasurer was fixed by law at two years and until the law was amended in 1907 it was provided that: “No person shall be elected to said office of treasurer for more than two successive terms.” [See Sec. 6764, K. S. 1899.] In 1907 when the term of county treasurer was extended to four years, and the incumbent was made ineligible as his own successor, it was incorporated in the amendatory act: ‘ ‘ This section shall not be construed to deprive anyone who is now county treasurer of the right to be re-elected in 1908.” [Sec. 3749, B. S. 1900.] This court has recently held that both county treasurers and sheriffs were eligible as candidates for office, while holding office and before [249]*249any final accounting or paying over of public money in their hands could be made. [State ex rel. v. Cloud, 212 Mo. 481; State ex rel. v. Dirckx, 211 Mo. 568.] In addition to the foregoing, this court will take judicial notice of the fact that in recent years an incumbent of the office of State Treasurer of this State was elected to the office of Governor and served the term in the latter office; that another State Treásurer was elected to the office of Lieutenant Governor, which office he now holds.
It appears therefore by the above decisions of this court, by legislative enactment and. by the general understanding and practice of the people, that persons holding office as collectors or as receivers of public money, have not been regarded as ineligible to election to office for the sole reason that a final accounting of the public money in their hands had not been made at the time of the election.
It will be noticed that the catch-words of the section of the Constitution are: ‘ ‘ Collectors, receivers etc., in default, ineligible to office.’.’ And the general rule of law upon the subject, as stated in 29 Cyc. 1385, is as follows: “Statutes frequently disqualify for public office those who, having in their possession pub • lie funds, are in default. Such statutes disqualify only those who have been determined by legal authority to be in default, or admit that they are in default, and appear generally to be liberally construed in favor of eligibility to office. Thus ‘default’ is said to mean a willful and corrupt omission to pay over funds.”
The reasonable and salutary interpretation given to the Constitution and statutory provisions under consideration, by this court, is not that those holding the offices mentioned s'hall be treated as in default and denied further political preferment while occupying such office, but rather that the door of the same office for another term, or of another office, shall be barred to them until, and only until, they shall have shown [250]*250themselves eligible and worthy by a full settlement and payment of all public funds in their hands.
It is next contented by relator that because respondent had not made a final settlement-and accounting in the particular manner provided by law, he was not eligible to qualify for o.r hold1 the office of judge of said circuit.
This point is wholly wanting in merit. The facts fully show, and it is not denied, that respondent accounted for and paid over every cent of public money in his hands and properly turned over all tax books in his custody. The representatives of the county and State made final settlement with him and gave him full receipts and acquittances; they are not now impeaching the settlement; they received all public money and books they were' entitled to and are making no complaint. The failure to comply, in immaterial details, with the statute providing the manner in which final settlement shall be made, a matter purely directory, when no hint of default or official dereliction appears in the record,, cannot be held to deprive a man of a high and honored office to which he was elected by the qualified voters óf the'judicial circuit.
This proceeding is brought upon the information of the Attorney-General at the relation of Robert S. Ryors. While the respondent raises a question as to whether the relator has sufficient interest to maintain the proceeding, no point is made as to the right of a private relator to be a party to a proceeding in quo warranto instituted by the Attorney-General in this court, and that question is not passed upon in this opinion. For the reason given the writ of ouster is denied.
All concur; Valliant, G. J., in a separate opinion.
VALLIANT, C. J.
— The word “eligible” in reference to a candidate for a public office, is not always used by law-writers with the precise point in view that [251]*251is presented by the learned counsel for the relator hr this case, that is, whether it means eligible at the date of the election or appointment, or a.t the date of taking possession of the office. It may sometimes be used in reference to the one date and sometimes to the other and whether the'reference is to the one or the other depends on the context and on the subject; in view of the context in which the word “eligible” is used' in section 19 of article 2 of the Constitution and of the particular subject to which it relate®, I am satisfied that it refers to the date that the candidate is to take possession of the office.
Therefore I concur in the couclusion that the ouster should be denied.
Lamm, Woodson, Graves, Ferri-ss and Brown, JJ., concur in this opinion.