265 Mo. 275 | Mo. | 1915
I.
Two original proceedings were instituted in this court. One is a certiorari sued out by Allen C. Southern, as shown in the above caption, against the three justices of the county court of Jackson county, Missouri, to quash its judgment entered on the 8th of March, 1915, in the following form
“The court finds.that a vacancy exists in the of- ' fice of County Highway Engineer of this county.
“Wherefore, it is now ordered by the court that Oliver C. Sheley, Jr., a resident of Jackson county, Missouri, who possesses the qualifications required by law, be and he is hereby appointed County Highway Engineer of Jackson county, Missouri, for a term ending on the first Monday in February, 1916. His compensation is fixed at two thousand dollars per annum, payable in equal monthly installments. He shall furnish a bond, conditioned as required by law, in the sum of fifty thousand dollars, to be approved by this court. The bonds of his assistants are fixed at one thousand dollars, each to likewise be approved by this court. ’ ’
Two of said justices concurring in the above and one dissenting thereto.
After notice of the application for said writ of certiorari, the Attorney-General, on the 5th day of April, 1915, brought the second proceeding shown in the above caption as an information in the nature of a quo warranto, charging that the defendants thereto, to-wit, Allen C. Southern and Oliver C. Sheley, Jr., were unlawfully exercising the office of County High
Respondent Oliver C. Sheley, Jr., in his separate return averred that he was lawfully holding the office of County7 Highway Engineer in that the section of the statute relied upon to support the title of respondent Southern under the appointment by the Governor was unconstitutional, and hence the county court of Jackson county ‘‘on March 8,1915” (by virtue of the terms aforesaid), there then being a vacancy in the office' of County Highway Engineer, appointed him, the said Sheley, pursuant to section 10551, Revised Statutes 3909, for a term expiring at the first meeting of said court in February, 1916, and that he accepted said appointment and qualified and entered upon the duties of said office. He further avered that the said Southern was ineligible to the office in question, and concluded his return by praying judgment sustaining his title to said office. It was stipulated by the jjarties that the two proceedings should be heard together, and they further stipulated upon an agreed state of facts
“For the purpose of the hearing of this cause in the above court, it is hereby agreed and stipulated by and between John T. Barker, Attorney-General, informant, and Sparrow & Page, attorneys for Allen C. Southern, respondent, in the above entitled cause, as follows:
“1. It is agreed that Rowland T. Proctor was at the general election held November 5, 1912, elected to the office of County Surveyor of Jackson county, Missouri, for a term of four years; that said Proctor qualified as such County Surveyor as required by law; that on or about January 6, 1915, said Proctor, while holding said office of County Surveyor of Jackson . county, departed this life.
“2. It is further agreed that on February 3, 1915, respondent Allen C. Southern was by Elliott W. Major, Governor of the State of Missouri, appointed and commissioned County Surveyor of said Jackson county, to succeed said Rowland T. Proctor, deceased, and to serve the unexpired term of said Proctor; that thereafter, and on or about February 17, 1915, said Southern qualified in the manner, within the time, and as required by law, as such County Surveyor of Jackson county.
“3. It is further agreed that at the date of the election of said Rowland T. Proctor, County Surveyor of Jackson county, and of respondent Southern’s appointment and commission as his'successor, said Jackson county had, and now has, a population of more than fifty thousand inhabitants; that during all said time the taxable wealth of said county, exceeded, and now exceeds, the sum of forty-five million dollars; that during all said time, said Jackson county contained, and now contains therein, a city of more than one hundred thousand inhabitants by the last decennial census, to-wit, the city of Kansas City.
It is upon the foregoing pleadings and stipulation that this cause is now before the court for final determination.
The two statutes, whose interpretation is necessary to a decision of this case, are, to-wit:
“Sec. 10551. There is hereby created in the several counties of the State of Missouri the office of county highway engineer, and the county courts of each county in this State are hereby authorized and empowered to appoint, and shall appoint, a highway engineer within and for their respective counties at the first meeting of such court in the month of February, 3910, and each year thereafter. Such county highway engineer so appointed shall serve for a period of one year and until his successor is appointed and qualified. Any vacancy occurring in the office of county highway engineer, from any cause, shall be filled by appointment by the county court.”
“Sec. 10556. The county court of the several counties in this State may, in their discretion, appoint the county surveyor of their respective counties to the office of county highway engineer, provided he be thoroughly qualified and competent, as required by this article; and, when so appointed, he shall receive the compensation fixed by the county court, as provided in section 10553, in lieu of all fees, except such fees -as are allowed by law for his services as
II.
The question upon which the relative rights of the rival claimants to the office of Highway Engineer for Jackson county depends, is whether the portion of the statute applicable in terms to the agreed statement of facts is violative of the Constitution, article 4, section 53, or any of its paragraphs.
Aside from the particular, special and local laws prohibited by the Constitution, the Legislature is untrammeled in the enactment of such laws and may do so in all other cases. [State ex rel. v. Speed, 183 Mo. 186; Haeussler v. City of St._ Louis, 205 Mo. 656; State v. Christopher, 212 Mo. 244.]
To bring a statute under this ban of the Constitution, the specific subdivision violated must be pointed out, and the fact must be established beyond any reasonable doubt, for it is a canon of construction that no act of the lawmaking power of this State will be annulled by the judiciary when it can be upheld on any rational theory of the limitations imposed by the Constitution on the otherwise plenary power of the Legislature to enact any law, not opposed to the Federal Constitution, ón any subject which its views of State polity may suggest.
Before discussing the question of the validity of the portion of the statute in hand, it is well to say that there is no merit in the suggestion' of respondent Sheley that respondent Southern is ineligible to the office of County Highway Engineer for lack of certain statutory qualifications prescribed in those cases
The statute proposes to accomplish this by two distinct and separate provisions, which will be useful to consider in the order in which they appear in the statute. The first is, to-wit:
“Provided, however, that in all counties in this State which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than 100,000 inhabitants by the last
Then follow provisions as to his salary and as to his appointment of assistants.
The rule that a statute which relates to a class of persons or a class of things is general, while one which only applies to particular persons or things is special, has been generally announced in this and other jurisdictions. [State ex rel v. Taylor, 224 Mo. l. c. 477, 478, and cases cited; Elting v. Hickman, 172 Mo. 257, and cases cited; The State ex rel. Dickason v. County Court of Marion County, 128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. Lionberger v. Tolle, 71 Mo. l. c. 650.]
It is, however, an essential adjunct of this rule that , the classification made by the Legislature shall rest on a reasonable basis and not upon a mere arbitrary division made only for purposes of legislation. [State ex rel. v. Roach, 258 Mo. l. c. 563; Hawkins v. Smith, 242 Mo. l. c. 696.] "When this is borne in mind, and a statute is enacted upon a basis justifying its classification and is made to apply to all persons who may hereafter fall within its purview, it is not special legislation.
The clause of the statute now under review classifies the counties of the State as they should then or thereafter contain more than fifty thousand inhabitants, and should have then or thereafter taxable wealth exceeding forty-five million dollars, or as they should adjoin or contain then or thereafter a city of more than one hundred thousand inhabitants.
It has been repeatedly decided in this State that classification according to population was sufficient to render an act containing such a classification a general law. [State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1; State ex rel v. County Court, 128 Mo. l. c. 442; State ex rel. v. Bell, 119 Mo. 70.] Nor has the rule as to such a standard been altered by the fact that.
III.
There remains to consider a final proviso contained in the section of the statute and its relation to the one construed in the preceding paragraph. That proviso is, to-wit:
“Provided further, that in all counties in this State which contain or may hereafter contain two hundred thousand and less than four hundred thousand inhabitants, and which county or counties con-tain one hundred and fifty miles or more of macadam- • ized roads, outside of municipal corporations, and which county or counties pay to the county surveyor a salary of three thousand dollars or more annually, the county surveyor of such county or counties shall be ex officio county highway engineer.” ' (Italics ours).'
It will be perceived by the language of this concluding clause the Legislature attempted to create a classification of counties falling within the limits of population of two hundred thousand minimum and four hundred thousand maximum, eschewing all others,' and further specifying that such counties should novo contain a certain number of miles of macadamized roads, which should be outside of other cities, and that their county surveyor should receive a salary of three thousand dollars or more. This proposed classification is not based upon a natural division of counties according to general standards of-population and wealth, but purports to rest upon a selected number of inhabitants not less than a given amount and not beyond a fixed limit. The Legislature must have known that this favored intermediary state had only been reached by Jackson county, Missouri.
We recognize as a matter of judicial knowledge and public history that when enacted this proviso •could not have applied to any other county in this State. It cannot be said that it created a future class into which other counties might fall, for an inspection of its language shows that the determining conditions of its application are expressed in words of present import. [State ex rel. v. Herrmann, 75 Mo. l. c. 352.]
Our conclusion is, that the final proviso of the section set out in this paragraph affords convincing intrinsic evidence of its repugnancy to the provisions of the Constitution limiting the power of the General Assembly to enact local or special laws, and that it should be expunged in the eye of the law from the section of the statute of which it forms the conclusion.
It remains to inquire whether the invalidity of the proviso set out in this paragraph affects, by inter
IY.
It results from the conclusions stated above that the respondent Southern, under the facts in this record and by virtue of his appointment as County Surveyor of Jackson county, is also ex officio County Highway Engineer, and hence the action of the majority of the county court of Jackson county adjudging a vacancy to exist in the office of County Highway Engineer and purporting to appoint respondent Shelev thereto, was' in excess of its lawful power and jurisdiction. It is therefore ordered that the writ of quo warranto be quashed as to. defendant Southern and be sustained against respondent Sheley, on the ground of unlawful •intrusion into the office of County Highway Engineer, and that he be ousted of any right or authority fo exercise any of the duties of said office, and that the judgment of the county court declaring a vacancy to exist in said office be quashed and for naught held upon the certiorari in this case. It is so ordered.