102 Mo. 85 | Mo. | 1890
— I. This, an original proceeding by quo warranto, has been instituted in this court, to question the validity of the special election, held March 4, 1890, at which respondent claims to have been elected marshal of the city of St. Louis, and by virtue of which he has been duly commissioned and qualified and entered upon the discharge of the duties of that office.
The contention of the relator on this point is twofold :
First. That ordinance 1089 of the city of St. Louis, under which the special election aforesaid was held, was unauthorized by the provisions of the charter, and, therefore, void, and because :
Second. There was no vacancy in the office of city marshal at the time of calling, nor at the time of holding, the special election, and consequently respondent was not elected, even granting the validity of the ordinance already referred to, which provides that: “ A vacancy occurring in any elective office more than six months before the expiration of the term thereof shall be filled by a special election, which shall be immediately ordered by the mayor for the purpose, and*89 five days’ public notice of the time and place of holdingqny special election shall be given.”
This ordinance, it seems, was passed in 1876, the year of the adoption of the charter. Relator contends that there is only one provision in the charter of the city in relation to filling elective offices at times other than regular elections, and that is article 4, section 13, thereof, providing that: “In case any elective office shall become vacant within six months from the expiration of the time for which its incumbent shall have been elected, then the council shall, by election, fill the vacancy for the unexpired term,” etc., and consequently he claims that the ordinance heretofore copied is not only unauthorized, but an attempt thereby to supply a casus omissus in the charter, which, under the provisions of section 19 of article 16 of that instrument, can only be supplied by an amendment thereof. This contention, however, cannot stand in the face of the twenty-sixth section of article 13 of the charter, and the eighth clause thereof, providing that: “ The mayor and assembly shall have power within the city, by ordinance not inconsistent with the constitution or any law of this state, or of this charter : * * * To regulate and provide for the election or appointment of city officers required by this charter, or authorized by ordinance, and provide for their suspension or removal,” etc.
The object of this charter provision is quite plain ; it bestows, as its language imports, sufficient power upon the law-making authorities of the city to make all necessary rules or laws in regard to municipal elections, whether those elections be general or special; whether occurring before the expiration of any official term of office, and, therefore, anticipatory in their nature, or when occurring after some regular election has failed of its purpose by reason of one or more of the various vicissitudes incident to, and frequently attendant on, such events. In short, the authority, thus granted to the legislative department of the city, is as broad in the
So here, the authority thus delegated to the legislative branch of the city government, to pass all necessary ordinances in furtherance of the object mentioned, is plenary in its character ; it is the power to prescribe rules by which city elections are to be governed; a power which recognizes only such limitations as are marked out by the constitution or laws of this state or by some other provision of the charter. Nor is the power thus conferred, in the exercise of which, the ordinance under discussion was passed, at all inconsistent with section 13 of article 4 of the charter already quoted. That section relates to a different exigency ; to a different election ; to an unexpired term of office of a different duration to that provided for in ordinance 1089. Moreover, the answer of respondent alleges that which the demurrer admits to be a fact, that the ordinance aforesaid was passed in 1876, the year of the adoption of the city charter, and, therefore, may be regarded as a contemporaneous exposition and construction of the power of the municipal legislature to pass such an ordinance; a circumstance not unworthy of consideration, as an early expression of what the framers of' the charter, and the people who voted to adopt it, meant by the eighth clause of section 26, supra.
II. Passing now to the second head of relator’s contention : Was there a vacancy in the office of marshal when the special election of March 4, 1890, was held % The information of the relator states that the
The fact that the incumbent remains clothed with official authority, in furtherance of a wise provision of public policy and of public law, cannot enlarge the boundaries of his official term, or arrest the operation of the power of appointment or of election. Of course, these remarks are subject to the conditions that the law has provided for filling the office in one of the modes mentioned, and that, therefore, the election or appointment cannot be classed as voluntary.
The case of State v. Jenkins, 43 Mo. 261, cited by ■ relator, aptly illustrates this point; for there the term of Vincent, under constitutional provisions, expired in January, 1867, but, though provision was made for an election in 1866, none was held, and this omission was attempted to be supplied by an election in 1868, at which McHenry claimed to have been elected, and respecting this, Bliss, J., said: “In relation to relator’s
State v. Lusk, 18 Mo. 333, is much relied on by relator ; but the position taken by the majority in that case is at variance with the views heretofore expressed, and was ably combatted by Judge Scott in a dissenting opinion of great vigor, which more than answers the unsatisfactory reasoning of the majority. Resides, Lush's case is virtually overruled by State v. Seay, 64 Mo. 89, wherein it was ruled that McCord having been elected and having qualified, but having died two days before Gale’s term ended or his own commenced, that Gale’s continuing to hold over under the constitutional provision did not prevent the happening of a vacancy, which the governor was authorized to have filled through the medium of a special election.
Moreover, the recent case of State v. Stonestreet, 99 Mo. 361, fully sustains the position heretofore taken as to there being a vacancy in the office of marshal upon the occurrence of the special election aforesaid ; and it is only necessary to refer to the discussion on this point, to that case.
As the result of the above views, the answer of the respondent must be adjudged sufficient in law, the demurrer be overruled and judgment accordingly.