256 Mo. 683 | Mo. | 1914
— Certiorari to require respondents, the judges and the clerk of the county court of Linn county, to certify to the Supreme Court the record of the proceedings of said county court in the appointment and removal of relator as a member of the highway board of said county.
Upon the appointment of the three members of said board by the connty court,, they met in compliance with section 3 of said act, and, in conjunction with the highway engineer, organized by the election of P. A. Trumbo as president, and J. M. Black as secretary of said board. At an adjourned term of the connty court held June 2, 1913, the following orders were made and entered of record:
“It appearing to the court that the appointment of Frank Dick, F. A. Trumbo and W. B. Flowers as members of the connty highway board as made by the court on the 23rd day of April, 1913, was illegal and without warrant of law the said appointment is this day ordered revoked.
“It is ordered by the court that Frank Dick and F. A. Trumbo be and are hereby appointed members of the county highway commission and that they be commissioned for a term of two years from this date. ’'
On July 16,1913, relator petitioned this court, setting forth the facts above stated, and asking the granting of a writ of certiorari directed to respondents, re
I. The Highway Board. Section 1 of said act creating the board and conferring the power of appointment upon the county court is as follows:
“Section 1. County highway board to be appointed — term.—There is hereby created a county highway board in each and every county in this State which shall be composed of three members. Said members of the county highway board shall be appointed as follows: Three members to be appointed by the county court of said county; the members of said board shall hold their offices for a term of two years from the date of their appointment, and they shall serve without compensation: Provided, that in counties that, have or may hereafter have a county highway engineer, he shall' ex-officio be a member of said board: Provided further, that in counties now having a population of more than seventy-five thousand inhabitants the county highway board shall be composed of the three members, of the county court.” [Laws 1913, p. 665.]
Words are sometimes so fittingly used, even in legislative enactments, that an attempted explanation of same tends to obscure rather than clarify their meaning. The act in question is illustrative of this truth.
The terms of the statute are unequivocal; the county highway board is to consist of three members to be appointed by the county court, who are to hold their offices for terms of two years respectively from the date of their appointment; and in addition thereto in counties in which a highway engineer has been appointed under the authority of section 10551, supra,
A construction which would reduce the number of the members of said board in counties of 75,000 inhabitants or less, in regard to which the same general words are used as to the numerical constitution of the-board, as in counties of more than 75,000 inhabitants, would violate one of the elementáis of interpretation in that it would authorize the interpolation of words to define the meaning of a statute otherwise clear and. unambiguous.
We are of the opinion, therefore, that such county highway boards as are authorized by the act in question, shall, in all counties, consist of three members, to-be appointed by the county court, and that the highway engineer, if there be one then or thereafter appointed, will become, by virtue of his office, a member’ of such board. From which it follows that the appointment of relator as a member of such board was-authorized.
II. Member of Board, Public Officer. It is not inappropriate to inquire whether an appointee of a county highway board is a public officer within the mean
A public office is defined to be a special trust or charge created by law. [U. S. v. Maurice (2 Brock), 96 Fed. Cas. No. 15747; State ex rel. v. Shannon, 133 Mo. 139, 164.] In State ex rel. v. May, 106 Mo. 488, 505, the office of superintendent of streets of a city, filled by appointment of the mayor, was held to be a public office. In State ex rel. v. McKee, 69 Mo. 504, 508, a like ruling was made in regard to the position of constable. In State v. Dierberger, 90 Mo. 369, 375, a like classification was made in regard to the position of deputy constable and in State ex rel. v. Valle, 41 Mo. 29, it was similarly held in regard to the office of water commissioner in the city of St. Louis. In Ex parte Lucas, 160 Mo. 218, while it is not expressly so decided, the reasoning of the opinion justifies the conclusion that a membership in the board of examiners for barbers, authorized under the state law, constitutes a public office.
Other illustrations might be added from our own reports, but the foregoing will suffice to determine what is meant by the term public office as used in the statute in question. In short, one clothed with the powers, exercising the functions and receiving the emoluments of a public office-, is a public officer. [State ex rel. v. Bus, 135 Mo. 325, 355; 29 Cyc. 1364.] In the Bus case, the distinction is clearly made between what is meant by a “State officer” and an “officer under the State,” a distinction which the court failed to make in State ex rel. v. Dillon. 90 Mo. 229, and in State ex rel. v. Spencer, 91 Mo. 206.
Under the express statute, therefore, creating the position of a member of the highway board and in the light of the reasons stated in the cases above cited, an appointee to this position, upon qualifying, becomes a public officer, the act of his. creation not only stat
No particular statutory method has been provided, however, for the removal of members of county highway boards, and a reference to the general statute in regard to the removal of county, town and township officers (Sec. 10204 et seq., R. S. 1909) is necessary to determine where the authority lies and what facts will sustain such a proceeding. Without literally quoting the general statute it will suffice to say that while broader than the constitutional provision (Sec. 7, Art. 14, supra) it limits the causes of removal to dereliction of or willful refusal to perform official duty, and requires the proceedings to be commenced and heard in the circuit court.
In the absence, therefore, of particular statutes, the method prescribed and the reasons assigned in section 10204 et seq., supra, are the limits of authority for
There is no pretense that the relator was removed for other cause than that the county court deemed his appointment unauthorized in the first instance on the theory that the court’s power of appointment was limited to two members who with the highway engineer would constitute said board. Relator’s removal, therefore, under the circumstances, was without statutory sanction, and unauthorized.
III. Certiorari: Relative to relator’s right to the writ. No right of appeal, writ of error or other remedy is provided by law for reviewing the action of a county court in cases of this character; the attempted removal of relator was an act judicial in its nature (State ex rel. v. Knott, 207 Mo. 167, 176; In Matter of Saline County Subscription, 45 Mo. l. c. 53); in the absence of a particular statute and in ignoring the general statute, the county court’s action was beyond its jurisdiction. [State ex rel. v. Johnson, 138 Mo. App. l. c. 313.] County courts, except that the authority for their creation is declared by the Constitution (Sec. 1, art. 6) and they are therein authorized to transact
The absence of authority for the removal of relator renders a discussion of the question as to the county court’s power to rescind an order at a term subsequent to that of its entry, unnecessary.
For the reasons stated the order of the county court rescinding its appointment of relator and removing him from office should be quashed, and it is so ordered.
