265 Mo. 26 | Mo. | 1915
This is an original proceeding by information in the nature of quo warranto, brought by the Attorney-General, for the purpose of determining the rights of the respondents to the several offices of collector of the revenue of Butler county and of collectors of the several townships in said county.
The matter is before us on the pleadings; such issues having been made up thereby as concede the facts upon which the ease turns. Briefly stated these- facts are as follows: At the general election held in Butler county in November, 1912, that county adopted the provisions of the statute relating to township organization. Following such adoption respondents herein, except H. I. Duncan and I. H. Barnhill, were elected collectors of the several townships in said county. The respondent Barnhill is the treasurer of Butler county and pursuant to the statutes governing township organization is ex-officio collector of the revenue thereof. Upon the presentation of a sufficient petition to the county court, the proposition to discontinue township organization was properly submitted to the voters of Butler county at the general election held therein in November, 1914. At this election some thirteen hundred votes were cast in favor of the proposition to discontinue and some eight hundred votes against the' discontinuance thereof. While of those actually voting upon the proposition of discontinuing, some two-thirds majority concurred in voting township organization out, yet the number of voters voting for a discontinuance was not a majority of the whole vote cast at said election; since
Upon tbe canvass of tbe votes cast for and against township organization, tbe county court found that such organization bad been discontinued by tbe result of tbe election held, and said court thereupon proceeded to appoint respondent H. I. Duncan as collector of tbe revenue of Butler county to fill tbe vacancy which said court deemed to have ensued by reason of tbe result of tbe election aforesaid. There is no contention made that all of tbe respondents are not in every way qualified to bold tbe disputed offices. This fact is conceded by all adversary parties.
A controversy arose after tbe appointment by tbe county court of respondent Duncan as to tbe right of said court to appoint county officers, particularly to fill tbe office of collector of tbe revenue in a county which bad voted out township organization. Thereupon one Carl C. Abingdon, likewise in every way qualified, as is conceded, to fill tbe office, applied to tbe Governor of Missouri for tbe appointment as collector, who thereupon appointed and commissioned' him as such.
If, therefore, in order to discontinue township organization in a given county, it be sufficient for a majority only of those voting upon tbe proposition to vote in favor of discontinuing such organization, then a vacancy exists in tbe office of collector of tbe revenue of said county and likewise in tbe several offices of collectors of tbe several townships of that county and respondents, unlawfully assuming to fill these offices, should be ousted. If such vacancy exist, as between tbe county court and tbe Governor of Missouri, in whom is-the power vested by tbe Constitution and tbe statutes to fill this office? These are tbe points which we are
I. As a foreword of no vital importance to the case, but in order to settle a minor matter of practice which is causing useless confusion, we observe that this case comes to us styled “State of Missouri ex informations, John T. Barker, Attorney-General, Informant, versus H. I. Duncan et al. (naming all 0£ them), Defendants.” No objection on account of thus styling the cause has been lodged with us, but the lack of uniformity prevailing makes the moment fitting for a brief discussion touching its correctness. We can see no reason, and can find none sufficient among 'the authorities, for styling the complainant an informant. Such use of the word to designate a plaintiff or complainant is wholly local and indigenous to this State. The dictionaries do not so recognize the word',- likewise neither the encyclopedias nor the law dictionaries so use it. To be logical we ought to say, “State of Missouri upon the information of the Attorney-General, informant, plaintiff.” For strictly speaking the State of Missouri is not the informant, but the Attorney-General is the one who informs us; the State of Missouri is the one aggrieved, and in whose action for redress the information is conveyed to us by the chief law officer. In criminal prosecutions either the prosecuting attorneys of the several counties or the Attorney-General informs the criminal court, but the State of Missouri is nevertheless simply a plaintiff.
While it is but little more logical to style the complainant in a prosecution by information in the nature of quo warranto, a relator, yet the practice of so styling the one standing in the place of a plaintiff is well-nigh universal. [2 Spelling on Extraordinary Remedies (2 Ed.), secs. 1788, 1848; High, Extraordinary
If it he said that the word “informant” is used to distinguish the cases brought by a prosecuting officer upon his sole initiative, from those cases which are brought by a private person through the official aid of such prosecuting officer, then the distinction is wholly useless, since it is fully and sufficiently connoted by the use of the words “ex informatione,” even granting for argument’s sake, such use is any more necessary in this sort of case than it is in a criminal prosecution, which in a precisely similar way is often brought by a prosecuting officer upon his sole initiative. Practically all other States of the Union use the designation relator, and the use of the word “informant” is unknown in these other jurisdictions. [State ex rel. v. Price, 50 Ala. 568; People ex rel. v. Woodbury, 14 Cal. 43; State ex rel. v. North, 42 Conn. 79; People ex rel. v. Riordan, 73 Mich. 508; State ex rel. v. Smith, 55 Tex. 447; State ex rel. Atty.-Gen. v. McCullough, 20 Nev. 154; People ex rel. v. Hilliard, 72 N. C. 169; Com. ex rel. v. Heilman, 241 Pa. St. 374.] The case of State ex rel. v. McMillan, 108 Mo. 153, does not, as we read it, require any such practice; the point held in judgment there being as to the right of the Attorney-General to bring such a proceeding at all, absent a private interested relator, and not the form of his bringing action. [State ex rel. v. Rose, 84 Mo. 198; State ex inf. v. Loan Association, 142 Mo. 325.]
So also the practice is to style him who is called to answer the information in the nature of quo warranto a “respondent.” [2 Spelling on Extraordinary Remedies (2 Ed.), secs. 1788,1848; High on Extraordinary Remedies (3 E!d.), sec. 629a; 34 Cyc. 1038; Bur-rill’s Law Dictionary.] “A respondent,” says Burrill, “is a party answering.” Concededly this designation of a defendant, or him who answers (the history of the-
And now passing over and not deciding, because not raised by the pleadings or otherwise, the questions whether (a) the State may itself maintain this action involving a county office, absent a relator interested in
II. While the questions raised are numerous and the contentions variant and diverse, the points which are decisive fall within a small compass and are not, as appears to us, peculiarly difficult.
It is obvious that Barnhill and the nine township collectors are all in precisely the same legal attitude. All parties to this record concede that township organization was heretofore properly adopted and was in force in Butler county, unless at the election held in November, 1914, it was legally voted out. Barnhill and nine others of the respondents say it was not legally voted out and therefore they are ex-officio county collector and collectors of the several townships, respectively. (We shall hereinafter for brevity, refer to Barn-hill and the nine township collectors, whose legal rights, privileges and conditions are identical, simply as respondent Barnhill.) Respondent Duncan and relator on the contrary both contend that township organization was legally voted out, and both concede that it was thereupon the duty of the proper appointing power to fill the vacancy thereby created in the office of collector of the revenue of said Butler county. The bone of contention between Duncan and relator is, however, touching the proper appointing power. Respondent Duncan says that by section 11745 of our statute this power is lodged in the county court of Butler county; relator says that so much of said section 11745 as confers power upon the county court to fill this vacancy
III. The statute which has served to produce the several diverse contentions above noted is as follows:
“Sec. 11745. At any general election holden in this State, in any county having adopted township organization under this chapter, upon the petition of one hundred voters of the county, praying the eoimty court to resubmit the question of township organization to the voters at said election, it shall be the duty of the county court to submit the question again at such election, in like manner as provided in article 1 of this chapter; and if it shall appear, after the canvass of the votes as provided in article 1 of this chapter, that a majority of all the votes cast at said election were against township organization, then such county shall be declared to be under the general laws of the State in relation to its local government, and to have rejected township organization, and the county court shall, at the first meeting thereafter, appoint such county officers as provided by law in counties not under township organization, and such officers, when so appointed, shall hold their offices and discharge the duties thereof in like manner as officers elected in counties never having adopted the provisions of this chapter.”
It is plain that if the above section is constitutionally valid it settles this case. For it is conceded for all of the purposes of this action that, while a majority of those voting upon the proposition of retaining township organization voted against so retaining it, a majority of all the electors voting in Butler county at
“In any county which shall have adopted ‘township organization,’ the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law; and if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force- in relation to counties not having township organization shall immediately take effect and be in force in such county. ’ ’
And so learned counsel for respondent Barnhill say that since the above quoted provision is unconstitutional, the Legislature has failed and neglected to legislate at all upon the subject of voting to discontinue township organization. In short, that the lawmaking body has not availed itself 'of the power committed to it by the section, supra, of the Constitution, of providing by law for the submission of the question of the retention of such organization to a vote of the electors of a county at a general election. Their attitude then is that the Legislature had the power to do this; it did it; but by a statute which is invalid; therefore it did not do it at all.
Nothing can be plainer than that so much of said section 11745 as requires a larger vote in any county to discontinue township organization than that required by the Constitution (Sec. 9, art. 9, supra), itself is in
Unless therefore we may cut out of section 11745 the portions thereof which are unconstitutional and leave the residue valid, and unless section 9 of article 9 of the Constitution is partially, at least, self-executing, the condition exists in this State that all those counties which have township organization must retain it till the Legislature shall have enacted a valid law which will permit a vote to be had upon the question of getting rid of it.
IY. Is section 9 of article 9 of the Constitution self-executing? It is fairly plain that so much of this section as says that “in any county which shall have adopted ‘township organization,’ the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law, ” is by no possible view, or by any recognized canon of construction, self-executing. It is equally clear on the other hand that so much of this section as provides that “if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township organization shall immediately take effect and be in force in said county,” is self-executing.
This view is held upon the first proposition, viz., that the portion of this section first above quoted is not self-executing, for reasons that are plain and conclusive. The clause first above quoted does not pur
In the case of Lyons v. Longmont, 54 Colo. l. c. 117, the Supreme Court of Colorado said: ‘£ Constitutional provisions are self-executing when it appears that they shall take immediate effect, and ancillary legislation is not necessary to the enjoyment of the right thus given, or the enforcement of the duty thus imposed. In short, if a constitutional provision is complete in itself, it executes itself.”
Likewise discussing this question the Supreme Court of the United States said in the case of Davis v. Burke, supra, at page 403: “Where a constitutional provision is complete in itself it needs no further leg
But as stated above, neither authority nor argument can make clearer the patent conclusion that the. first clause of section 9 of article 9 of the Constitution, supra, down to the first semicolon, is not self-executing, but that it requires legislation to carry it into effect; and that the remainder of this section is self-executing. No reason can be seen why such a condition is not permissible under the facts here; that is to say, why one clause of a given section of a constitution may not be self-executing and another clause or clauses of the same section not self-executing. Indeed, we have held that such a condition may exist without doing violence to the organic law. [Sharp v. Biscuit Co., 179 Mo. 553;] The matter with which this section of the Constitution was dealing is divisible. The said first clause gave authority to the Legislature to provide by a written law for the manner in which the question of continuing township organization should be submitted to the voters, and since so much of it is not, as we have seen, self-executing, therefore unless the Legislature has by a constitutional. statute provided some manner of submitting the question to the voters, it cannot be submitted nor voted on till the Legislature does provide a valid law therefor, and the election held in Butler county would be invalid.
Returning to a eonsidération of the first clause of section 11745, supra, we note that it says:
“At any general election holden in this State, in any county having adopted township organization un
No one upon the instant record- specifically attacks the constitutionality of so much of this section. -The contention in substance is that it is not sufficient to bridge the hiatus, and that so destructive a constitutional inroad having been made on that language of this section which follows the first semicolon therein, the whole section for this reason falls. We do not think this follows. The applicable rules of construction in such case are fairly well settled. In the case of State ex rel. v. Wright, 251 Mo. l. c. 336, we took occasion to say:
“We need not cite numerous cases from other jurisdictions or load down this opinion with textbook excerpts in order to prove that part, a section, a sentence or a clause of a statute may be constitutionally invalid and the remainder good. We may merely say that this is a rule wholly or well-nigh universal in all common-law jurisdictions, and one to which this court has lent its concurrence. Valliant, J., in the case of State ex inf. v. Washburn, 167 Mo. l. c. 697, said: ‘The point is advanced that if the Act of 1899 is unconstitutional in the particular named, the whole act is void and the.incumbent has no title to the office. The power attempted to be conferred on the partisan committee is not an essential element in the whole act. Where the part of an act that is unconstitutional does not enter into the life of the act itself, and is not essential to its being, it may be disregarded and the rest remain in force; that is this case. ’
“This view was expressly approved in the later case of State ex rel. Tolerton v. Gordon, 236 Mo. l. c. 176, where the court says, referring to the Washburn
“As was so aptly stated by Graves, J., in his concurring opinion in the Tolerton case, l. c. 186: ‘From it (the law of 1899 — which is in this particular precisely similar to the law of 1911, now under discussion), however, we carve out one of the vital things in the minds of the legislative body, and say enough is left to make a good law.’
“We cannot state the rule better or more briefly. We might state it in different language, by saying that, if after cutting out and throwing away the bad parts of a statute, enough remains, which is good, to •clearly show the legislative intent, and to furnish sufficient details of a working plan by which that intention may be made effectual, then we ought not as a matter of law to declare the whole statute bad. [Cooley on Con. Lim. (7 Ed.), 247; State ex rel. v. Gordon, 236 Mo. l. c. 171; State ex rel. v. Taylor, 224 Mo. l. c. 474; State v. Bockstruck, 136 Mo. 335.]”
Similar is the holding in the case of State ex rel. Bixby v. St. Louis, 241 Mo. l. c. 246, where the discussion took a broader range, and threw light upon the proposition from a different angle, and wherein it was ■said:
“We shall not undertake to re-examine or re-formulate the learning on the question. The books are full of it and counsel on both sides cite cases decided by this court, and text-writers, showing under what circumstances an unconstitutional and therefore dead provision may be pruned from the main stem of a law without impairing the stem itself. The prying mind can consult the reporter’s head notes for them. There is a very late case, State ex rel. v. Gordon, 236 Mo.
Considered in the light of the holdings in the above cases and those cited therein, it is fairly obvious that the first clause of section 11745 down to the semicolon in line seven, is constitutional, and this we think follows without invoking the rule of reasonable doubt (State v. Baskowitz, 250 Mo. 82, and cases cited), or the rule of violent presumption in favor of validity, as the cases hold may be done. [State ex rel. Bixby v. St. Louis, supra.]
We are likewise keenly mindful- of those cardinal rules for the construction of a statute which enjoin upon us such an interpretation as ascertains and gives effect to the intent of the lawmakers (State ex
It will he' seen that said first clause of section 11745, supra, provides that upon the coming in to the county court of any county having theretofore adopted township organization, of a petition of one hundred voters of the county, to resubmit the question of township organization to the voters at any general election “it shall be the duty of the county court to submit the question again at such election, in like manner as provided in article 1 of this chapter.” It must be noted that the question of the retention or the discontinuance of township organization, as we above herein have loosely used these words for clarity’s sake, is not specifically referred to in the language of this section under discussion. The words used connote a submission of the question to a vote just as though no election had ever been had, or having been had the proposition had' been defeated. Turning then to article 1 of chapter 119, Revised Statutes 1909, referred to in the said first clause of section 11745, supra, we find it providing among other things, as follows:
‘ ‘ Sec. 11653. The county court, on petition of one hundred legal voters of said' county, shall cause to be submitted to the voters of the county the question of township organization under this article, by the ballot, to be written or printed, ‘for township organization,’ or ‘ against township organization,’ to be canvassed and returned in like manner as votes for State and county officers.
“Sec. 11654. The clerk of the county court shall cause an abstract of the returns of said election to be made out and certified as in election for State and county officers, record the same at length upon the
If we read said section 11653 in connection with that part of section 9 of article 9 of the Constitution which we have already held to be self-executing, we find that a workable scheme is prescribed amply sufficient to hold an election and thereby rid a county so desiring, of township organization, which obviously would otherwise be a veritable “old man of the sea,” which once lodged upon the back of a county would be shaken off only by more legislation.
The view we take above takes some considerable color from the fact that it has been held that cm invalid election held to adopt township organisation may be validated by the result of an election held to discon-' tinue it, when at such election to discontinue a proper majority vote is cast to retain it. [State ex inf. v. Russell, 197 Mo. l. c. 649.] Apposite to the view we take, that there is much of similarity if not an absolute reciprocalness, between an election to adopt and an election to discontinue township organization, Fox, J., said in the case last supra:
“While it may be true that some of the electors cast their ballots upon the theory that they were voting to continue or discontinue in force such organization, which they supposed had been previously adopted, yet it is equally true that at that election the contest was sharply presented on the proposition of township organization, and the electors gave expression to their will upon the proposition, and this court is unwilling to say that such expressions shall be ignored. The proposition having been submitted in substantial accordance with the provisions of the statute, and included in the official ballot published and the form of such ballot applicable to this subject being such as was prescribed by the statute, keeping in view that the manifest design and object of the law was to obtain the expression of the will of the electors upon township or
Not to pursue the matter further, we are of the opinion that the result of the election held in Butler county in November, 1914, was to discontinue township organization therein and that respondents Barnhill, Harwell, Osborn, Reading, Kearby, Gardner, Ratcliff, Deaton, Burger and Phillips, were thereby divested of authority to act as ex-offició collector of the revenue of said Butler county, and as collectors of the several townships therein, respectively, and therefore the writ of ouster as to the above-named respondents and each of them, should be awarded.
Y. This brings us to a consideration of the other question in this case; since it follows that township organization having been lawfully voted out, a vacancy thereby ensued in the office of collector of the revenue of Butler county. The point which is contested, as we stated in the beginning, is as to where the power of & . . T . . . , appointment is lodged. It it is m the county court, respondent Duncan was legally appointed and the writ should not issue as to him. If such power of appointment is lodged in the Governor, then Carl C. Abington is the person entitled to this office and the writ of ouster as to Duncan should issue.
This point presents no difficulties whatever, the serious question in the case, i. e., the validity or not of the 1914 election having been disposed of, and turns upon a consideration of the self-same sections of the Constitution and the statute, which upon other phases we have discussed above herein. In the beginning we stated that so much of section 11745 as
So we think there can be no two opinions, that the power of appointment here lay with the Governor and not with the county court; that so much of section 11745 as prescribes a contrary rule is unconstitutional and therefore as to the respondent Duncan also the writ of ouster should be awarded. Let our writ of ouster-go as to all of the respondents.