State ex rel. Scott v. Dirckx

111 S.W. 1, 211 Mo. 568, 1908 Mo. LEXIS 113

• Court: Supreme Court of Missouri
• Decided: April 29, 1908
• Status: Published

Opinions

GANTT, C. J.

— This is a proceeding by the relator to obtain a peremptory writ of mandamus requiring the respondent as county clerk of Cole county to file the declaration of the relator as a candidate for the office of sheriff of said county in compliance with section 5 of an act of the 44th General Assembly entitled, “An Act to provide for party nominations by direct vote,” approved March 18, 1907, Laws of Missouri, 1907, page 263. An alternative writ of mandamus was awarded and service thereof waived and the county clerk filed his return thereto. The petition in substance states that the relator is a taxpayer, voter and citizen of Cole county, Missouri, and has been for four years past; that at the general election held on the first Tuesday after the first Monday of November, 1906, he was duly elected to the office of sheriff of Cole county for the full term of two years and until his successor should be elected and qualified; that thereafter he received a certificate to said office and duly qualified as the law required and has since discharged the duties of the said office. That prior to his election and entering upon the discharge of his duties as such sheriff on January the first, 1907, he had not held said office nor been an incumbent thereof; that at the time of the election at which relator was elected' sheriff of said county the following provision of the Constitution of 1875 of this State, to-wit, section 10 of article 9 thereof, was in force:

“Section 10. There shall be elected by the.qualified voters of each county, at the time and places of electing representatives, a shériff and coroner. They shall serve for two years, and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office, and shall be eligible only four-years in any period of six. Before entering on the duties of their office, they shall give security in the amount, and in such manner as shall be prescribed by law. Whenever a county shall be hereafter established, the-Governor shall appoint a sheriff and a coroner therein, who shall continue in office until the next succeeding general election and until- their successors shall be duly elected and qualified. ’ ’

Relator then alleges that at the said general election held in November, 1906, the following amendment to the Constitution relating to the office of sheriff was adopted by the voters of this State:

“Amend by striking out all of section 10' of article 9 of the Constitution of the State of Missouri and adopt in lieu thereof a new section to be known as section 10,. article 9, of the said Constitution and to be in words and figures as follows:

“Section 10. There shall be elected by the qualified voters in each county on the first Tuesday following the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties of their office they shall give security in the-amount and in such manner as shall be prescribed by law and shall be eligible only four years in any one period. Whenever a. county shall be hereafter established, the Governor shall appoint the sheriff and coroner therein, who shall continue in office until the next succeeding general election and until their successors, shall be duly elected and qualified.”

That by section 5. of the Act of March 18,1907, candidates at said primary election for nomination for county offices shall at least sixty days before the date of said primary election file in the office of the connty clerk of their respective eonntie-s a declaration of their condidacy in which each candidate for nomination for a county office shall state “his full name and residence,, the office for which he proposes as a candidate and the party upon whose ticket he is to be a candidate.” That said act provides that said declaration so' made shall be accepted and filed by the proper official, that is, by the county clerk, in lieu of all other nomination papers required by said act. That relator desiring and intending to become a candidate at the primary election to be held on the first Tuesday in August, 1908,. for the office of sheriff of Cole county, did on March 12, 1908, present to the respondent, the county clerk of Cole county, his declaration in writing of his candidacy at said primary election for the office of sheriff of Cole county, and did request the respondent to- accept the same and file it in his office; that respondent refused to accept said declaration of relator’s candidacy for said office of sheriff and did refuse to file the same, assigning as a reason for his said action that relator having been elected sheriff of Cole county at the general election held in this State in 1906, and being the present incumbent of said office, is not eligible to said office or competent to hold the same for the term of four years prescribed by the amendment to the Constitution relating to the office of sheriff and adopted at the general election in 1906 and hereinbefore fully set. out. That the refusal of respondent to accept said declaration of relator’s candidacy and to file the same in his said office of county clerk is wrongful and in contravention of relator’s rights in the premises and of the-duty of respondent as county clerk under the provisions of the said act of the General Assembly of this State entitled, “An Act to provide for party nominations by direct vote, ’ ’ approved March 18,1907. Wherefore, he prays for writ of mandamus requiring respondent to accept and file relator’s declaration of Ms said candidacy for sheriff as aforesaid.

In his return the respondent demurs to the petition of relator and assigns two grounds of demurrer, to-wit: First. Said petition and alternative writ fail to state facts sufficient to constitute a cause of action. Second. Said petition and alternative writ and the matters and things therein stated and set forth are not sufficient in law and equity to entitle relator to the relief asked for in said petition or to authorize the issuing of said writ of mandamus.

The demurrer admits all the questions of fact in regard to the respective qualifications of the relator and respondent and the regularity of the declaration of the relator’s candidacy, so that the sole question for our consideration at this time is whether the relator, having been elected sheriff of Cole county at the general election held in this State in November, 1906, and being the present incumbent of that office, is precluded, by the terms of the Constitutional amendment of 1906, in relation to the office of sheriff and known as section 10 of "article 9 of the Constitution of this State, from holding the office as his own successor for the term of four years provided by said amendment, to be filled at the general election to be held in this State in November, 1908.

If relator will be eligible to the office of sheriff to be filled at the nest general election to be held in November, 1908, he is entitled to a peremptory writ of mandamus requiring the respondent clerk to accept and file his declaration of candidacy for the office of sheriff of Cole county, as he has no other adequate remedy.

The respondent has refused to accept and file said declaration for the sole reason that the relator Scott is not eligible to the said office because relator was elected sheriff of Cole county in 1906 and duly qualified as such and is now the incumbent of said office and is therefore not eligible or competent to hold the same for the succeeding term of four years prescribed by the constitutional amendment relating to the office of sheriff, adopted at the general election in the year 1906. In other words, respondent insists that the constitutional amendment of 1906 prescribes a condition of ineligibility to the office of sheriff, to-wit, that “he shall be eligible only four years in any one period,” which applies to the case of the relator, and to permit him to be elected and hold such office for the four years after the general election in 1908 would allow him to hold the said office of sheriff for six years continuously in ■direct violation of the express mandate of the organic law of this State, and that in computing the time, the two years which relator has and will have held said office from the election in 1906 to the election in 1908 must he construed as a part of the period during which he can only he eligible for four years. On the other hand, relator contends that, inasmuch as he was elected under the provisions of .section 10 of article 9' of the 'Constitution of 1875, and said section was repealed by the amendment of 1906, and said amendment was and is wholly prospective in its purpose, it has no application to his case and he is eligible. To which contention the Attorney-General replies that it is not a question •of the prospective operation of the amendment but is •one of eligibility, a question of fact; whether the cause •of the ineligibility arose before or after the adoption •of the amendment, he contends is immaterial.

The settled rule of construction in this State, applicable alike to the constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. l. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76; Cooley on Constitutional Lim. (6 Ed.), page 77; Shreveport v. Cole, 129 U. S. 36.] In the instant case is there anything in the Constitutional amendment relating to sheriffs and the term of their office that indicates it was the intention that it should have a retrospective effect? While the amendment became a part of the Constitution of this State from the time of the canvass of the vote thereon by the Secretary of State in 1906, by its terms it was not to have actual operation and practical effect until the election in 1908, the first time when an election for sheriff was to be held under its provisions. That a statute or constitutional provision may have a potential existence, but which will not go into actual operation until a future time, is familiar law. [State ex rel. v. Wilcox, 45 Mo. l. c. 464; State ex rel. v. Pond, 93 Mo. l. c. 625; Ex parte Snyder, 64 Mo. l. c. 61.] Having special regard to the provision itself, it will be noted that it provides: “There shall be elected by the qualified voters in each county on the first Tuesday after the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner.” While it is contended by the Attorney-General that the relator was holding his office under the amendment from the date of his qualification on January 1st, 1907, we think it is obvious that he was holding under old provision under which he was elected, otherwise he would have no title to his office for the two years prior to the election of 1908, because the amendment of 1906 makes no provision whatever for the incumbency of the office of sheriff from 1906 to 1908. After providing for an election, by the qualified voters in each county, of a sheriff, on the first Tuesday following the first Monday in November, 1908, and thereafter every four years, the amendment proceeds, “They shall serve for four years and until their successors be duly elected and qualified. ’ ’ Unquestionably, “they” in this sentence refers to those elected in 1908; the amendment then continues, “Before entering on the duties of their office, they (that is to* say, those elected in 1908, and their successors in office) shall give security in the amount and in the manner as shall be prescribed by law, and shall be eligible only four years in any one period,” evidently again referring to those elected in 1908, and their successors.

But for the unequivocal language of the amendment itself there would be great force in the argument that the provision limiting the term of a sheriff to four years is one of eligibility, which might refer to the past incumbency of the office as well as the future, but when it is borne in mind that the amendment of 1906 leaves nothing to implication but expressly repeals the former constitutional provision, to-wit, section 10 of article 9, of the Constitution of 1875*, it seems to* us that it marks a departure in the law and creates a new rule for the future. Much has been said in regard to the long established public policy of the State in fixing in former constitutions the limitation of the term of a sheriff to four years in certain specified periods; thus, in the Constitution of 1865, section 22, article 5, it is provided that “a sheriff shall be eligible four years in any period of eight years,” and as we have already seen in the Constitution of 1875 he was limited to a term of four years in any six years. While “public policy has been declared to be the handmaiden of sound legal exposition” it has also been declared to be “a very unruly horse.” Judge Story, in his work on Contracts (2 Ed.), volume 1, section 546, says: “It has never been defined by the courts, but has been left loose and free of definition, in the same manner as fraud. This rule may, however, be safely laid down, that wherever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void, as being against public policy.” [Kitchen v. Greenabaum, 61 Mo. 110.] On the other hand, it has been said by courts of great ability, “When we speak of the public policy of the State we mean the law of the State whether found in the Constitution, the statute or judicial records.” [People v. Hawkins, 157 N. Y. l. c. 12; Vidal v. Girard’s Exrs., 2 How. (U. S.) 127; Dammert v. Osborn, 140 N. Y. l. c. 40.] Having in mind, then, these various changes of our fundamental law on the subject of sheriffs, it is obvious, we think, the public policy of the State has changed from time to time, and we must look to the Constitution itself at the present time to ascertain what the public policy is. As we have seen the language of the amendment ex vi termini confines the ineligibility of a sheriff to those sheriffs to be elected in November, 1908, and those to be elected every four years thereafter. While on the one hand, it may be argued with much plausibility that it was the purpose of the people that no sheriff should hold over four years continuously in any period of time, it may with equal force, we think, be argued that as the fundamental law was being changed, it was deemed best to have it operate entirely in the future, and not render a sheriff, who' has held only one term of two years, ineligible to be elected under its provisions and thus deprive him of the right of re-election, which he would have had under the Constitution before its amendment, inasmuch as his- election under the new amendment would apply only, to those who had held the office of sheriff at the time of the adoption of the amendment, and in the future would work absolute equality to all sheriffs thereafter elected. But, however that may be, it must be borne in mind that in endeavoring to reach the meaning of the provision under consideration, there is a well-settled rule of interpretation, to-wit, “Where no exceptions are made in terms, none will be made by mere'implication or construction. ” [Rhode Island v. Mass., 12 Peters (U. S.) l. c. 722.] This rule of construction has often been applied in this State. [Rogers v. Brown, 61 Mo. l. c. 194; State ex rel. v. Fisher, 119 Mo. 344, l. c. 351.] In Dwarris on Statutes, 199, 200, it is said: “Words cannot be inserted; ‘every day,’ said Patterson, J., in a late case, ‘I see the necessity-of not importing into statutes words which are not to be found there. Such a mode of interpretation only gives occasion to endless difficulties.’ In Lamond v. Eiffe, 3 Q. B. Rep. 910, Lord Denman said, ‘We are required to add some arbitrary words to the section, which would exclude us from acting in certain cases. We cannot introduce any such qualifications ; and I cannot help thinking that the introduction of qualifying words in the interpretation of statutes is frequently a.great reproach to the law. None of the distinctions suggested are contained in the plain words of the act; and we cannot qualify them by any arbitrary introductions.’ So, in Everett v. Wells, 2 Scott’s N. Rep. 531, Tindal, C. J., said, ‘It is the duty of all courts to confine themselves to the words of the Legislature, nothing adding thereto, nothing diminishing. We must not import into an act a condition or qualification which we do not find there.’ ”

While, therefore, holding that the amendment does not render a sheriff, who has held a term under section 10 of article 9 of the Constitution of 1875 immediately before the adoption of the amendment of 1906, ineligible to the office of sheriff to be filled at the election in 1908, and thus enable him to hold.continuously for more, than four years, after all this is but an incident of the change from the Constitution as it was in 1875 to the provision as it exists since the amendment of 1906, and this must have been evident to the author of the amendment and could have readily been avoided by inserting a proviso that sheriffs who had served one or two regular terms should not be eligible to the office at the election in 1908. But the fact that no such provision was made in the amendment supports our conclusion that such was not the intention of the framers of this amendment nor of the people when they adopted it. Our conclusion is that the relator is eligible to the office of sheriff to be filled at the general election in November next and is not precluded by the amendment in regard to sheriffs, adopted in 1906 and known as section 10 of article 9 of the Constitution, and accordingly he is entitled to a peremptory writ of mandamus directing the respondent to accept and file his declaration of his candidacy for said office, and it is so ordered.

Burgess, Valliant, Fox, Graves and Woodson, JJ.} concur; Lamm, J., dissents.