State ex inf. Zahnd v. Rhoads

399 S.W.3d 905, 2013 WL 2395982, 2013 Mo. App. LEXIS 679
CourtMissouri Court of Appeals
DecidedJune 4, 2013
DocketNo. WD 75538
StatusPublished

This text of 399 S.W.3d 905 (State ex inf. Zahnd v. Rhoads) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex inf. Zahnd v. Rhoads, 399 S.W.3d 905, 2013 WL 2395982, 2013 Mo. App. LEXIS 679 (Mo. Ct. App. 2013).

Opinion

JAMES EDWARD WELSH, Chief Judge.

Rita A. Rhoads appeals the circuit court’s judgment in quo warranto ousting her as Mayor of Tracy, Missouri, for hiring her son-in-law to repair a city sign. The circuit court determined that Rhoads violated article VII, section 6 of the Missouri [906]*906Constitution, which states that a public officer forfeits her office if she appoints to “employment any relative within the fourth degree, by consanguinity or affinity!!.]” Rhoads contends that, because her son-in-law was an independent contractor, she did not appoint him to employment as that term is used in article VII, section 6 of the Missouri Constitution. We disagree and affirm the circuit court’s judgment.

The evidence established that, in the spring of 2012, a wooden “City of Tracy” sign was damaged. Rhoads, acting in her capacity as Mayor of Tracy, hired her son-in-law, Matthew D. Spores, to repair the sign and agreed to pay her son-in-law $100. Rhoads made out a check payable to her son-in-law and signed a check in the amount of $100 from the general fund account of the City of Tracy.

The State of Missouri, through Eric G. Zahnd, Prosecuting Attorney for Platte County, filed a Petition in Quo Warranto on July 9, 2012, under Chapter 531, RSMo, and Rule 98 of the Missouri Rules of Civil Procedure to oust Rhoads from office. The State alleged that Rhoads violated her official duties by hiring her son-in-law to perform work for the City of Tracy in violation of the nepotism clause found in article VII, section 6 of the Missouri Constitution, and therefore, requested that Rhoads be removed from her office as Mayor of Tracy.

After a trial, the circuit court found that Rhoads’s son-in-law was a relative within the fourth degree by affinity and that Rhoads, in her capacity as a public officer, appointed her son-in-law to employment with the City of Tracy. The circuit court concluded that Rhoads usurped the power of her public office and violated Mo. Const, art. VII, sec. 6. Therefore, the circuit court ordered Rhoads to be immediately removed from the office of Mayor of the City of Tracy. Rhoads appeals.

Review of this court tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). State ex inf. McCulloch v. Edwards, 337 S.W.3d 118, 121 (Mo.App.2011). We will affirm the-circuit court’s judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We view the evidence and inferences in the light most favorable to the circuit court’s judgment and disregard all contrary evidence and inferences. Id. “We will only set aside the judgment upon a firm belief that the judgment is wrong.” Id.

“Quo warranto is an appropriate remedy for enforcing a forfeiture resulting from violation of the Missouri constitutional ban on nepotism.” Dryer v. Klinghammer, 832 S.W.2d 3, 4 (Mo.App.1992) (citing State ex inf. Roberts v. Buckley, 533 S.W.2d 551, 553 (Mo. banc 1976)). Article VII, section 6 of the Missouri Constitution provides: “Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.” The only issue in this case is whether or not Rhoads’s appointment of her son-in-law to repair a city sign constitutes employment within the meaning of article VII, section 6 of the Missouri Constitution. Rhoads contends that, because her son-in-law was acting as an independent contractor, she did not appoint her son-in-law to “employment” with the City of Tracy. We disagree.

“ ‘Constitutional provisions are subject to the same rules of construction as other laws, except that constitutional provisions are given a broader construction due to their more permanent charac[907]*907ter.’ ” Am. Fed’n of Teachers v. Ledbetter, 387 S.W.3d 360, 363 (Mo. banc 2012) (citation omitted). “In determining the meaning of a constitutional provision[,] the court must first undertake to ascribe to the words the meaning which the people understood them to have when the provision was adopted.” Boone Cnty. Ct. v. State, 631 S.W.2d 321, 324 (Mo. banc 1982), superseded in part by constitutional amendment as recognized in Mo. Prosecuting Attys. v. Barton Cnty., 311 S.W.3d 737, 741 (Mo. banc 2010). In ascertaining the meaning of the word “employment,” “the primary rule is to ‘give effect to the intent of the voters who adopted the [provision]’ by considering the plain and ordinary meaning of the word.” Johnson v. State, 366 S.W.3d 11, 25 (Mo. banc 2012) (citations omitted). “The ordinary, usual and commonly understood meaning is, in turn, derived from the dictionary.” Boone Cnty., 631 S.W.2d at 324.

At trial, the State admitted into evidence a copy of page 839 of Webster’s New International Dictionary (2nd ed.1934, New Words Section 1939, 1945), which defines “employment” and employ.” The definitions in this version of the dictionary would supply the “ordinary, usual, and commonly understood meaning” of the words, which the people would have ascribed to the terms when Mo. Const, art. VII, sec. 6, was adopted in 1945. The pertinent definitions of “employment” from the dictionary as used in 1945 are: “1. state of being employed; as, to seek employment. 2. That which engages or occupies; that which consumes time or attention; also, an occupation, profession, or trade; service.... 3. a Use; purpose, b (One’s) service, c Implement.” Webster’s New Int’l Dictionary 839 (emphasis in the original). Because the first pertinent definition of “employment” uses the term “employed,” the definition of “employ” also becomes relevant. The pertinent definition of “employ” from the dictionary as used in 1945 is: “To make use of the services of; to give employment to; to entrust with some duty or behest; as, to employ an envoy; often, in the passive, to have employment; to be at work; as, he has been employed for some time.” Id. (emphasis in the original).

In this case, Rhoads, in her capacity as Mayor of Tracy, made use of her son-in-law’s services to repair a damaged city sign and entrusted her son-in-law with the duty to fix the sign. The act of repairing the sign consumed her son-in-law’s time and attention. While working on the project, Rhoads’s son-in-law was in the state of being employed by the City of Tracy, and the work of repairing the sign engaged and occupied him, even if only temporarily. Under the plain and ordinary meaning of the word “employment,” Rhoads’s asking her son-in-law to repair the sign and the son-in-law’s act of repairing the sign for the City of Tracy constituted employment.1

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Related

State v. Olvera
969 S.W.2d 715 (Supreme Court of Missouri, 1998)
Boone County Court v. State
631 S.W.2d 321 (Supreme Court of Missouri, 1982)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Missouri Prosecuting Attorneys v. Barton County
311 S.W.3d 737 (Supreme Court of Missouri, 2010)
State Ex Inf. McCulloch v. Edwards
337 S.W.3d 118 (Missouri Court of Appeals, 2011)
State Ex Inf. Roberts v. Buckley
533 S.W.2d 551 (Supreme Court of Missouri, 1976)
Johnson v. State
366 S.W.3d 11 (Supreme Court of Missouri, 2012)
A. J. Meyer & Co. v. Unemployment Compensation Commission
152 S.W.2d 184 (Supreme Court of Missouri, 1941)
Dryer v. Klinghammer
832 S.W.2d 3 (Missouri Court of Appeals, 1992)
State ex inf. Attorney General v. Shull
887 S.W.2d 397 (Supreme Court of Missouri, 1994)
Pearson v. Koster
367 S.W.3d 36 (Supreme Court of Missouri, 2012)
American Federation of Teachers v. Ledbetter
387 S.W.3d 360 (Supreme Court of Missouri, 2012)

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Bluebook (online)
399 S.W.3d 905, 2013 WL 2395982, 2013 Mo. App. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-inf-zahnd-v-rhoads-moctapp-2013.