State ex rel. McDaniel v. Schramm

199 S.W. 194, 272 Mo. 541, 1917 Mo. LEXIS 175

• Court: Supreme Court of Missouri
• Decided: December 12, 1917
• Status: Published

Opinions

BOND, J.

This is a quo warranto instituted by the circuit attorney of the city of St. Louis, to determine the right of respondent to the office of assessor for that city. By the charter of St. Louis, adopted in 1876, the office of assessor in that city was created and provision was made for -filling the same by election thereafter held at intervals of four years. In accordance with, this provision of the charter, respondent was elected and installed as such assessor in April, 1913. His term expired in the .spring of 1917. Pending the expiration of respondent’s term, the city of St. Louis adopted a new charter, providing, among other things, that the office of assessor should after the expiration of the term of respondent become appointive, with authority in the mayor of the city to make proper appointment thereto. Pursuant to the provision the mayor appointed, an assessor, who qualified and demanded the office of respondent whose term had then expired. Respondent, however, obtained an appointment from the Governor on April 16,1917, and claiming thereunder, refused to surrender, the office, insisting that the Governor had the legal authority to appoint him upon the expiration of his term by virtue of the provisions of Section 11341 of the Revised Statutes of 1909, which respondent claimed made, it necessary to elect an assessor quadrennially in the fall, instead of in the spring; that his own election and that of all previous assessors who had been» elected in the city of St. Louis since the adoption of its charter in 1876 were invalid.

I. Since the adoption of the Constitution in 1875, the city of St. Louis, by virtue of the provision of that instrument, has become a city distinct from the four classes of cities into which all the other cities of the State are divided by the Constitution. It hás become, also, the possessor of a distinct charter, the creation and adoption of which was provided for by article 9, sections 20, 22, 23 and 25, of the Constitution of 1875. That instrument further provided, upon the adoption of such charter and the accompanying scheme of separation from the county of St. Louis, that the provisions of the new charter should supersede and take the place of all special laws previously applicable in the former territory of St. Louis County then added to that city by the act of separation, and the previous charters and amendments thereto of the city of St. Louis. [Ibid,, sec. 20.] It further provided that the charter of St. Louis to be adopted in virtue of its authority, should only be amended in the manner pointed out in that instrument. [Ibid., sec. 22; Laws 1901, p. 263; Laws 1905, p. 320; St. Louis v. Dorr, 145 Mo. l. c. 477, and cases cited.]

Recognizing, however, that the territory of the municipality thus authorized — although separated from the county of St. Louis — would continue under the control of the future Legislatures of the State of Missouri in all respects not otherwise provided by the Constitution, an express affirmance of such legislative authority was inserted in the provisions of the Constitution. [Ibid., sec. 25.] The city of St. Louis is the only one in the State which' by name is authorized by the Constitution to exercise the specific powers granted to it by that instrument;. [Ibid., sec. 20.] A general enabling act was, however, inserted to embrace other cities which, although not named, should fall within a constitutional class. [Ibid., sec. 16.] Cities thus constitutionally chartered form classes distinct and separate from the four divisions pre-. scribed by the organic law (Ibid., sec. 7), and their respective charters have all the efficacy of special grants by the Legislature. [State ex rel. v. Mason, 153 Mo. l. c. 52; Kansas City v. Stegmiller, 151 Mo. 189; State ex rel. v. Mason, 155 Mo. 486, affirmed in State ex rel. v. Roach, 258 Mo. l. c. 565.]

The new municipality thus organized adopted by the vote of the people, a charter which provided a complete plan for the government of the city in all of its departments and for the election of officers necessary to put such plan into practical operation.

No department of- the city government was more essential to its sustenance and vigor than that providing a basis for the collection of its revenues. The officer charged with performance of these duties is the assessor of taxes, nine-tenths of which belong to the city of St. Louis exclusively and without which it could not exist. Incidentally and as a part of his duties, his assessment includes a comparatively insignificant revenue for the State at large. Previous to the adoption of the charter, his election was provided for by laws specially applicable to the county of St. Louis. [Laws 1871-2, p. 88, sec. 21.] Upon the adoption of the new charter, that law was substitued by the following provisions: Scheme and Charter, art. 5, sec. 15; Scheme and Charter, art. 4, sec. 1; Scheme and Charter, art. 1, sec. 8.

The new officer substituted by the charter for the performance of the duties of the assessor of St. Louis County, was designated as “The President of the Board of Assessors. ’’ His office was declared by the scheme and charter to be a “city office” and under the control of the city government, and he was required to perform all his duties “in accordance with the general laws” and his qualifications and duties were specifically prescribed. [Scheme and Charter, art. 5, secs. 17, 18, et seq.] The date of the elections of the President of the Board of Assessors and other elective officers designated in the scheme and charter, was fixed by that instrument to begin on the first 'Tuesday in April, 1877, and every four years thereafter. [Scheme and Charter, art. 2, sec. 1.] Under the express language of the Constitution, the charter requirements in these respects superseded and took the place of the previous special laws on the subject, applicable to the county of St. Louis. [Constitution 1875, art. 9, sec. 20.] In an accordant spirit, the Legislature of the State has never undertaken in any act, to alter or control the election of the President of the Board of Assessors (the successor by charter to the previous assessor of St. Louis County), but in every intervening act has expressly stated that such act providing for the election of an assessor in other counties of the State, should not include the city of St. Louis. [R. S. 1879, sec. 6678; R. S. 1889, sec. 7524; R. S. 1899, sec. 9137; R. S. 1909, sec. 11341.] And in the last of such enactments (the one under review in this case) has explicitly excepted the city of St. Louis. It is under this enactment that respondent claims, after having served four years by election, according to the charter, in the spring of 1913, that he is now entitled, after the expiration of his term, to hold over as appointee of the Governor, because his own and all prior elections for forty years were invalid in that they were held in the fall instead of the spring as was provided by the charter in fixing the date and the beginning of tbe terms of all tbe officers for the government of the city of St. Louis.

The sole basis of his contention (the burden of establishing which in a proceeding like the present is cast upon him) is the following statute:

“Election of assessor. At the general election in the year one thousand nine hundred, and every four years thereafter, there shall be elected by the qualified voters of the several counties in this State a county assessor, who shall hold his office for a term of four years, and until his successor is elected and qualified, unless sooner removed from office; and no person elected to said office of assessor shall hold said office more than two successive terms: Provided, that this section shall not apply to the city of St. Louis.” [R. S. 1909, sec. 11341.]

As to this statute, the contention of respondent is, that the proviso thereto is unconstitutional and void; and if the proviso be held unconstitutional, then the remainder of the statute would be at once extended and become an operative law which would embrace the territory of the city .of St. Louis (excluded by the proviso), as well as every other portion of the State. Or, to put the matter in another form, the position of respondent is: first, that the proviso of the above statute is uneonstitutional; second, upon that assumption, he then contends that the portion of the act above the restrictive terms of the proviso at once operated to include the territory of the city of St. Louis which was excluded by the proviso; whereupon the act, with its specific and express purpose thus defeated, became, by the stretching of its terms, a law fixing the date of the election of assessor of the city of St. Louis the same as that for the general election of state officers, instead of the date provided in the scheme and charter.

If there is any valid ground for the contention "that the proviso of the above act is unconstitutional (not now necessary to be ruled) it would still be impossible", either in reason or upon authority, to sustain the second position affirmed by respondent, i. e. thait the annullment of the proviso would enlarge the territory subject to the act. As this latter contention is decisive of the matter presented, it will he discussed first.

What would be the effect in law of a holding that the proviso above stated is unconstitutional? Plainly the only effect of such a decision would be to abolish the operative force and validity of the proviso. Such a holding would not and could not detract from the meaning of the terms of the proviso considered as a clear and express statement of the purpose and object of the Legislature in enacting the law of which it is - a part. The legal validity of the proviso is one thing; its meaning as a definition of the intention and object of the legislative body is another and wholly distinct matter. As an avowal and expression, clear and conclusive of the intent and aim of the Legislature in framing the act, it would still exist, even if it were held to have no constitutional vigor as a law.

In the instant statute, by the terms of the proviso, the Legislature, in unequivocal language, declared that the act to which it was attached, should not embrace the city of St. Louis. The effect of this express declaration is identically the same as if the Legislature, instead of enacting the law. as it now stands, had put it in the form of an act whose operation should extend over all of the one hundred and fourteen counties of the State mentioning them by name, and making no reference or allusion io its operation in the city of St. Louis, in which event that city would not have been the subject of the act. Neither could it be more so if, as was done, it was expressly excepted therefrom. Whatever might be thought of the validity of an enactment in that form, no one would have the temerity to claim that it evinced or was consistent with a purpose on the part of the lawmaking body to extend its operation over the territory of the city of St. Louis, and no court could so decide. But.it is only upon the successful maintenance of such a theory that respondent can claim any right or title to the office of assessor in the city of St. Louis.

The rules relating to the severance of portions of an act of the Legislature as invalid, and' the upholding of the remainder, have been repeatedly announced in this and other jurisdictions. In general this may be done only when the part of the law separated as invalid, is vTholly independent of a remainder constituting, a complete act of legislation in and by itself, in accordance with the intention of the law-making body at the time of its passage; for if it should appear from the terms of the act as a whole that the two portions were interdependent, or that the Legislature never intended to pass the one without the other, then the rule is unvarying that the act must stand or fall as a totality. This general rule applies only to the saving of a complete legislative enactment. It has no application when a portion of any act sought to be upheld is incomplete or imperfect; for the omission of the Legislature to exert its exclusive faculty to make a law, cannot be supplied except by a succeeding Legislature. Hence if it appears from the face and terms of the act (a portion of which is sought to be elided as unconstitutional) that the remainder was not designed in itself to be a complete act of legislation, either as to subject or territory, then it is self-evident the court could not supply the failure to legislate and such act would have to be upheld in its entirety or not at all. It is not logically possible to take any other view of this question.

Now in the matter in hand the Legislature, as appears from the act under review, in the simplest terms stated that the territory of the city of St. Louis should not be governed by it. Hence as to so much of the State of Missouri as is contained in the boundaries of that city, there was a total failure on the part of the Legislature to make any law whatever. The present case cannot, therefore, fall within any rule of construction applicable to the separation of a complete act from an invalid portion of the same act; for here the Legislature has refused to make a law extending over the city of St. Louis. Consequently no court can now make a law which the Legislature adjourned without enacting, or, in other words, make a law as to that territory over which the lawmaking body failed and refused to exercise its power of legislation.

It must not be overlooked in the instant case, that the question to be solved is not whether the Legislature had the power to act, but whether it did, in fact, legislate as to the territory of St. Louis when the statute uiider review was passed. The terms of that statute declare to a certainty that such portions of the State’s domain was not embraced within the scope of the act. The question as to whether or not it should be included, was directly presented to the Legislature yet the fact is indisputable that the lawmaking body, after consideration of that question, expressly refused to make a law governing it and so stated in the act itself. In view of its express refusal to legislate as to this locality, what the Legislature might have done is a wholly futile inquiry devoid of any logical or legal consequence. The fact that it did not make a law for the city of St. Louis, but positively declined to include that territory, is apparent and undeniable from an inspection of the language and terms of the act under review. Having stamped that decision in the very act itself, it is impossible, except by perversion of its terms and ascribing to its words a meaning which is contrary to their intrinsic sense and import, to hold that the Legislature included or intended to include the city of St. Louis as the subject of the act. It follows that the entire theory of respondent, that the statute under review, upon a holding of the invalidity of the proviso would, without further legislative action, become a different law including the excluded territory, is built upon a tissue of sophisms and fallacies and contradiction of terms relied upon to prove that legislative nonaction meant affirmative action; and exclusion meant inclusion.

The settled rule of law sustaining the . conclusion that the act under review is inoperative as to the territory of the city of St. Louis, whether its proviso should be held valid or invalid, is clear and controlling, as appears from the text-books and decisions, and rests upon the results of correct reasoning when applied to statutes of the character of the one under review. The principle is thus stated by a standard writer:

“If, by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent and the whole would be affected and made void by the invalidity of such part.” [1 Lewis ’s-Sutherland’s Stat. Const. (2 Ed.), sec. 306, p. 597.]

Again: “One important class of cases in which the severability of valid and invalid portions of an act and. the determination of the legislative intent are involved, consists of statutes containing invalid exceptions or provisos ; the general rule is, that if such proviso operates to limit the scope of the act in such manner that by striking out the proviso the remainder of the statute would have an undue scope either as to the subject or territory then the whole act is invalid, because such extended operation would not be in accordance with the legislative intent.” [6 R. C. L. p. 129, sec. 127, Title: Constitutional Law.] (Italics ours.)

The Supreme Court of the United States in consid- . ering a case where the first section of an act embraced all persons, while the ninth section declared the statute should not apply to agriculturists or live stock dealers, said:

“If the latter section be eliminated as unconstitutional, then the act if it stands will apply to agriculturists and live stock dealers. Those classes would in that way be reached and fined, when, evidently the Legislature intended that they should not be regarded as offending against the law, even if they did combine their capital, skill or acts in respect of their products or stock in hand. Looking then at all the sections together, we must hold that the Legislature would not have entered upon or continued the policy indicated by the statute unless agricul-. turists and live stock dealers were excluded from its operation and thereby protected from prosecution. The result is that the statute must he regarded as an entirety and in that view it must be adjudged to be unconstitutional” on the ground that the exception as to agriculturists and live stock dealers'was unconstitutional. [Connolly v. Union Sewer Pipe Co., 184 U. S. l. c. 565.]

In quoting and adopting the foregoing rule the Supreme Court of Montana said:

‘ ‘ This is a recognition of the soundness of the proposition that the courts may not by process of interpolation or elimination, make statutory provisions apply and extend to subjects not falling clearly within their terms; for by so doing they would, to this extent, usurp the functions of the lawmaking department of the government.” [State v. Cudahy Packing Co., 33 Mont. l. c. 187.]

The matter came again before the Supreme Court of the United States in reviewing a section of the code of Georgia which, in referring to the employment of pilots, excepted from the operation of the act the territory between the ports of that State and South Carolina. Upon the contention that this section might he disregarded, leaving the residue of the act valid, the Supreme Court of the United States said:

“But the insuperable difficulty with the application of that principle of construction tó the present instance is, that by rejecting the exceptions intended by the Legislature of Georgia, the statute is made to enact what confessedly the Legislature never meant. It confers upon the statute a positive operation beyond the legislative intent and beyond what any one can say it would have enacted in view of the illegality of the exceptions. We are therefore constrained to hold that the provisions of section 1532 of the Code of Georgia cannot be separated so as to reject the unconstitutional exceptions merely and that the whole section must be treated as annulled and abrogated.” [Spraigue v. Thompson, 118 U, S. l. c. 94, 95.]

The Supreme Court of Wisconsin having under review an act providing for the erection of county bridges, which contained a proviso “this act shall not apply to the county of Grant,” in answer to the contention that the proviso might be disregarded as unconstitutional, leaving an otherwise valid act, said: “In the present case there is no room for the application of this rule, for the reason that the Legislature has not enacted that the statute should extend to Grant County, hut has expressed a contrary intention. By no possible construction can the statute be held to be operative in Grant County.” It was therefore held that the entire statute was invalid. [State ex rel. v. Sauk County, 62 Wis. 376.]

This decision was quoted and adopted by the Supreme Court of North Dakota, in Edmonds v. Herbrandson, 2 N. D. l. c. 281. It is- a ruling on the exact question presented in this case, which is whether an act of the Legislature excepting the territory of the City of St. Louis can be held valid if' such an exception is unconstitutional. It is in precise conformity to the rule above quoted from the text-writers and declared by the Supreme Court of the United States and affixes to the act under review the legal conclusion arising from an interpretation of its language.

It is wholly unnecessary to pass upon the contention of respondent that the proviso of the act under review is unconstitutional; for having shown that if so, nothing is left of the act itself as an entirety, since we could not make it apply to the city of St. Louis without judicial legislation, it follows upon that conclusion that respondent would have no greater authority to hold the office in question than if the act was constitutional and valid in all respects. In neither case would the election of an asses-' sor for the city of St. Louis be governed by the terms of the act, for if valid as an entirety, St. Louis is excepted from its provisions, and if invalid as to the proviso only, then the legislation in the body of the said act did not extend to the “subject or territory” of the city of St. Louis and cannot be so enlarged by any process of reasoning or construction in the light of the law as expounded above.

II. From what has been said there is no escape from the conclusion that respondent is not entitled to the office, his right to which is questioned by the quo warranto filed in this case, and that he should be ousted from further tenure thereof.

The oases cited by respondent in support of his claim of the unconstitutionality of the proviso can have no relevancy to the solution of what would be the extent of the act if that were eliminated. However, it is not out of place to say that in the case of State ex rel. v. Koeln, 270 Mo. 174, the exact opposite of the question before us was presented. In that case an act was under review which in terms was generally applicable to all parts of the State. It was, therefore, held to be susceptible of a construction that the Legislature intended to include St. Louis (it being an integral part of the State of Missouri) when it passed that act. [E. S. 1909, sec. 11432.] After quoting this section and also the rule of statutory construction-stated in Section 8057 of the Eevision of 1909 (founded on the Act of the Legislature of 1879) to the effect that the use of the word “county” in “any law general in its character to the whole State, shall be construed to include the city of St. Louis unless such construction be inconsistent with the evident intent of the law or some law applicable to such city,” it was held, in the absence of any showing of “evident intent ” that the State-wide law applicable to the election of collectors of the revenue should not include the city of St. Louis, that the act then under review would embrace that territory. In announcing that conclusion the learned writer of the opinion said:

“Whether the General Assembly had exercised its power to legislate upon this subject prior to 1905, we need not here stop to consider. We have no hesitancy in saying that by the Act of 1905, supra, it did exercise such power.”

It is apparent at the merest glance that the point decided in that case has no bearing whatever upon the interpretation of the act under review in the present proceeding. In the Koeln case, by its unrestricted terms the act under review was held to include the State at large. In the present case the act, by its terms, is confined to, the portion of the State lying outside the city of St. Louis, thereby demonstrating the fact and intention of the Legislature as to the limitation of the law. In so acting and stating its purpose, the Legislature complied with the rule prescribed by that body in 1879 (immediately following the separation of the city and county) for the construction of future enactments relative to the territory of the city of St. Louis. [E. S. 1909, sec. 8057, par. 19.] In said opinion it is also remarked arguendo, in reference to the special laws which the charter of the city of St. Louis substituted for those previously applicable to the county of St. Louis: ‘£ This undoubtedly was a very wise provision making for harmony rather thaii chaos and confusion upon the occurrence of the act of separation then in contemplation.” It was then held that it was thereafter competent for the Legislature to change such substituted special laws in a legal way, and that, it “did” so by the general terms of the Act of 1905. It is apparent that ruling is wholly foreign to the question presented by the terms of thé act before us.

The case of State ex rel. v. Roach, 258 Mo. l. c. 565, involved no question of the failure of the Legislature to enact a law covering the territory of the city of St. Louis, as is the question presented here; but dealt exclusively with the provisions of the act of the Legislature of 1913 (Laws 1913, p. 334), purporting to establish a non-partisan judiciary in all counties and cities of the State, based upon a classification by population. . It is evident that the question then presented has not the most remote analogy to the present case, which turns on the fact of non-legislation as to a particular locality by virtue of its express exclusion from the terms of the act. As has been said, the crux of this case is' not the power of the Legislature by a valid enactment to pass laws which shall include all the territory of the State, but whether in the particular act under review it, in fact, did so.

Neither is there anything in common between this case and the decision by a divided court (State ex rel. v. Gordon, 236 Mo. 142), for the point in judgment there was whether the Legislature, after the passage of a general law making a full appropriation for all the uses of the game warden’s office, could by subsequent proviso prevent the use of these funds by a particular individual. In the present proceeding the Legislature has not, by a general law, embraced the territory of the city of St. Lonis, but has exscinded that portion of the State from the operation of its act, as to which it has been shown that whether this limitation was valid or invalid, the lack of affirmative legislation could not be supplied by the courts.

Being unable to see, under our form of government, any method by which such affirmative legislation can be had except through the lawmaking body, it must follow that the respondent is not entitled to the office predicated upon a contrary assumption and that the writ of ouster should be granted.

Wallcer and Woodson, JJconcur; Faris, J., concurs in separate opinion; Williams, J., dissents in separate opinion, in which Graves, G. J., and Blair, J., join.