*1 HALL, A. Relator, STATE Harry rel.
Jоhn Director VAUGHN, C. Comptroller Budget, Respondent.
No. 57842.
Supreme Court of En Banc.
July 19, 1972.
Rehearing Aug. Denied Bacon,
Shook, Ottman, Hardy, Mitchell & Hardy, Bacon, David R. L. Charles Wil- Zimmerman, plain- liam G. tiff. Gen., Danforth, Atty. C. C. John John
Klaffenbach, Attys. Burns, Jr., B. Asst. C. Gen., respondent. City, for Jefferson MORGAN, Judge. original proceeding, as-
serts that he is the of Division Ten Circuit the Sixteenth of Mis- souri; respondent Comptroller Budget Director of Mis- State of duty approving souri with the and issu- ing payroll pay drafts state; that since the date of 1972, respondent has failed pay compensation provided refused to *2 397 adopts which any circuit judge law for a of said division on selection, age of shall premise to method that relator on said date ceased years seventy of ..” judge be a of Sixteenth Cir- provisions cuit of the virtue of Section which, obvious it becomes From all of Article of the 1945 Constitution of that there one an- V.A.M.S., adopted special as at a relator, lawfully who was swered —must 4, 1970, August electiоn on with an effec- year people to a six term ex- 1, 1972; and, tive date of 31, 1976, pursuance of piring December thereof, consequence per- relator seeks a existing laws at the constitution and emptory compelling of writ mandamus selection, immediately time of his “retire” payment compensation. of such judge his services as terminate position, To sustain his relator submits: adoption a new maximum cause of the of (1) that of Article 5 is an en- age judges? limitation for “all” tirely new constitutional answer, seeking In we first applies prospectively and does therefore consider contention that Section not modify present or curtail relator’s to be given 30 is office, and, of (2) that said section consti- design, pur with the and was not tutes arbitrary, unreasonable and uncon- others, pose or oust relator or stitutional among classificatiоn seventy age who have or reach the judges of this state in violation of the office, during present their terms of equal protection clause of the Fourteenth they pre end of the term to which Amendment to the United States Constitu- First, viously lawfully have been elected. status, it is of interest consider
Factually, any, pub incumbent of judge or the parties agree in 1956 Quite consistently, relator lic office does have. was said cir- pursuаnt country cuit have declared provisions the courts of this to the of the con- solely are created offices stitution of this state (generally referred public and to as meet the of the ; needs plan) that he was has no contractual or general retained office in the elec- and, office; particular tions vested to the of 1958 and 1964 and served for suc- premise, on that it has been concluded years (6) еach; cessive terms of six powc¥ gen to create an on that: May in accordance with the power provisions erally modify includes (1) Section of Article Officers, Am.Jur., Public abolish it.” 42 relator filed the constitutional declara- 33; Law tion 16 candidacy for re-election and was C.J.S. fact, has so held from 251. this court general retained in office in the election of McBride, early 4 Mo. November, case of State v. 1970, for аn additional term of to the recent 29 Am.Dec. 636 years beginning six (6) January 1, 1971, Davis, 418 S.W.2d 163 case State v. ending 1976; December approval was (1967). In McBride seventy (70) years relator became office, Da while Further, abolishment of November ap was term an office vis agreed during all of the time relator of this dur proved. Other decisions judge, served the first questions may ing related year the interim on present of his no con- was Carondelet, 22; 23 Mo. v. found Primm аpplica- stitutional maximum limitation Davis, Attorney-General v. 44 However, ex rel. State ble he held. to the office Sec- Evans, 129; v. ex inf. Crow Mo. provides, part, State “All 30 now that: 355; ex rel. State Mo. 66 166 S.W. judges appointed under the 497, 91 Sheppard, Mo. S.W. v. 192 Henson 29(a)-(g) sections article or Darby, 477; Rothrum v. ex rel. pointed nonpartisan State selection 532; Motley Callaway County, question posed would answer the S.W.2d 875; negative concept 347 Mo. S.W.2d Wil based on supreme, lens the “will” v. Personnel Bd. Ludwig, suggested the same S.W.2d S. expressed reading also W.2d As even casual their “will” when se reflect, principle question. basic lected office in cases will *3 upon holdings Nevertheless, depart the from this which therein were we rather public extraneous based was that offices created to and somewhat illusive area and people; point meet return to the needs of the the at hand —did the exist, by when need ceases to there is no intend such the new maximum limitation obligation necessity to person (relator) they continue a useless oust that whom premise, the had Judge office. From courts have selected to serve as Division validity until been able to rationalize of Ten December 1976? In other changes making in an of other structural words —was it intended that Section 30 be fice, given retrospective a providеd such as occupant application such an How office. ? ever, as to it is of interest whether or not value, acknowledged limits the
Am.Rep. carries in the historical and rather qualification Argument solatium, “ * * * have one thereof. The if teenth fice for the term for which was selected right that the office need to shorten the term of the need the incumbent of an office has no vested pression facts fice, Sheppard, the office. an office-holder the need for N.Y. same rationale people, but ‘reads public purposes.’ a a of this case. There although Andrews, office. with right, by [526] could be made that Speaking to it the supra, not be aptly says: emoluments, of Division Ten of the Six This An loc. cit. toward Circuit nor directed primarily virtue title such office said, is in rudely court, Nichols v. truly continue, occupant clear to’ So arises —evеn of his more structural ‘But tenuous cast out that, given S.W. it is an applicable has except on due they 5 N.E. to an office within a been no ex still exists? selection does he not emoluments rel. Henson toward of that at 1.c. 481: there is a change pecuniary reviewing MacLean, no occupant position agency change longer hand, these of of its tion 25 seventy-five datory Judges. having cases].” well to constitutional vision ent must constitutional state, applicable different able ever, parent is The statutory Scott ered question is Constitutional said, intention to make them statutory provisions, ultimate determinative therewith is question, retrospective constitutional the intent of the be considered settled applicable to all retirement from a prospective The (now rule is that Dircks, in may be found (Emphasis added.) enactments are intent part: аccepted answer to the their terms has year repealed) which provision rule of construction they are to Law, Law, alike is evident was a in their age limit for “The prospective effect alone is an policy. as an operation only provisions. 111 S.W. judges, and framers.” Consist providing state provision in Sec in entirely presumption not to be consid be construed as operation expression of a so is clearly beyond reason factor that, Therefore, Constitutional of Missouri. constitutions. established a State ex rel. plan judges, Am.Jur.2d, wherein it Appellate Thus, new Mo.Dig., is, in this [citing unless latter man such, how pro ap as process rigor penalties state, pro de law of are to we follow given the new is to spective application by positive nounced law.” To those who holding date of this on the effective question, amеndment unless we find can hold office as contrary shall continue to spelled out court of clear, of the court or explicit unequivocal commissioners detail serve until the peals districts retrospective application is called for (Emphasis ..” end of their “beyond question.” terms reasonable [a] thereto, respondent response added.) Respondent po seeks sustain his specific declaratiоns suggests sition, generally, argument with the ques- significance have relevant new Article Five does not have hand, the reason that is referred required by “grandfather” clauses were “grandfather clause” to the of (applicable changes being the structural virtue retaining presently holds) fice relator made, appeal were e., i. three courts premise, office. From this it is submit being merged into commissioners *4 ted that the absencе thereof is indicative of phased circuits out other an intent age to the new limitation to Undoubtedly, non-partisan plan. adopt the January those incumbents selected to possibility the the framers conceived of 1, accept logic cannot the of We might be changes construed such structural argument. Obviously, such is a there affecting immediately terms of the the saving provision, prospective the rule of changed, occupants the and as of offices so application brought not picture into the protect to such incumbents precaution for the reason the itself answers noted. Re- specific declarations made the problem. Conversely, the the rule rele reason, provisions in the such gardless of only saving provision. vant if there is no adopted. struc- fact were Where being made, is-logical changes tural were Relator not submits that does the framers felt no neces- to conclude that the rule of construction posi- noted sustain his sity specific for out a spelling tion, but that in addition thereto there are di- offices not clause for the incumbents of provisions other in posi- said article which rectly rule otherwise would affected. To tively (as reflect that the framers thereof those words destroy ignore or at least be to well as the people) presumed application of provi- declare that the of the rule to age the new maximum limita- judges,” apply to sions thereof “[a] instance, Five, For tion. Article as now obviously of an intent indicative amended, following also provi- contains the non-parti- serving within the “all” of those (1) (in sions: Section (1) far as plan to be treated alike. san court contemplates possible adoption the Thus, provisions quoted herein the all of non-partisan circuits) court in other a harmonious fall into and considered provides, part: “Any judge holding in of- others, whole, which, the among one of fice, thereto, or elected at the time objectives judicial construc- hoped for by provisions election which the of section Thus, is that one practical result office, 29(a)-(g) applicable become his designatеd term having for a been selected shall, cause, for in removed remain his January serve out prior to for the term to which he would have age regardless of the attained full term provisions been entitled had the of sections the extent his during (except to such term his applicable not become 29(a)-(g) by age might have been limited office.”; paragraph pro- Section (2) and, that one selected election); timе of his vides, part: adoption this designated term after amendment shall not affect the term reaching age of upon retire must any right duty any judge tenure of applied, seventy years. As so appeals court who is in office on in Section judges” words used “[a]ll amendment.”; this the effective date of serving applicable alike all will be provides, paragraph (3) Section plan, and will part: “The commissioners clearly effective was the of the of all article sections heretofore addition, people which, suggests not considered. — only a setting conclusion that such a maxi- Lastly, comment should made that we long qualification mum run was extending opinion have refrained from desirable, appreciation but also by many cases detailed consideration of is, generally, no discernible differ- foreign jurisdictions, by cited capacity pеrform ence in the of one to research, parties by our found own day attaining duties on the sev- primarily, because of the fact enty precaution day and the As a before. relating considered those issues against possibility assumption such an now submitted more often proves unfounded as one of the most courts as hereto- shown the cases persons limited number could addition, found fore cited. we have amendment, be affected factually none foreign provid- of said article so, similar, and where are somewhat ing disability. removal from been conclusion reached therein has precise wording based on suggested has been even being a frame considered the rule of reference to other constitutional state, is called not of this state. For identical such rule of the in attaches preceden- those interested thеir limited *5 words, In cumbent relator. other value, however, consid- tial are prospective implementation be would Officers,” ered “Public titles salary January terminate relator’s “Judges” in all and “Constitutional Law” re long so as no effort was made to recognized digests texts. and compensation paid him between cover conclusion, are convinced that In we he (the date became November out, which is consistent tо be carried seventy years age) January and application, al- prospective with the rule of for argument is not valid several Such officer, prior to every judicial elected lows right reasons. The receive 1, 1972, for January retain office merely compensation incident of the been selected full he had term naturally person and flows to reason other removed for some occupant thereof. an intent age. nothing find to indicate We compensation is not right “. by adoption of new disrupt such tenure exists, if it exists creature of contract. Article Five. all, law, when it creation consider, * * * of our not view need We exists, belongs to him contention point ruling on it to the office.” cause law attaches itself, in so that the amendment two Mechem, Officers, Public judges of it classifies circuit far as point at issue is whether or page 577. The state, Fourteenth is in violation qualified to serve relator is to continue not Constitu- States Amendment the United not is to judge, not whether or as a and contrary compensated A doing so. possibility approach would create calling of mandamus peremptory A writ to serve could continue person compensation due payment addition, compensation. In without Judge of Di- his services as ap- prevent uniform construction would Cir- Ten of Sixteenth vision the new arti- plication of cuit is to issue. result in alike and judges” cle to “[a]ll CLEMENS, Spe- illogical SMITH, thereof and and WEIER irrl£lementation concur. blending Judges, cial impossible the harmonious apply a law
DONNELLY, be to to him would J., Acting C. dissents. § 1, 1972,retroac- January until not effective HENLEY, J., separate dis- began dissents of office which tively a term (1) to opinion filed. senting officer public to a and before that date nоt, he ac- or when when elected who was SEILER, separate dissent- J., dissents re- burdened with cepted separate and ing opinion filed concurs quirement that he retire at HENLEY, opinion dissenting J. close exami- will not bear contention His argument. light his own in the FINCH, nation J., and C. HOLMAN truth the unadorned Exposed light, to this BARDGETT, JJ., participating. not to be: is revealed underlying his contention HENLEY, Judge (dissenting). a vested interest that he has as it existed office and respectfully I dissent. elected when he was constitution sworn in. I agree relator’s contention that with provisions of a rule is that squarely into the This contention flies constitutional amendment not are court that decision of this face of a recent plied retrospectively are to be but “ * * * no vested officer only.1 effect But I cannot public office private property right in a or * * agree prevents application that this rule In the Davis case or its term.3 August, (adopted him of 30 of Article V provi that a constitutional the court held 1970), Constitution of from and that, provided in the consti except as sion date. its effective resignation, subject to tution and
Relator contends to apply the man- the term hold office for all officers shall datory age duly 70 retirement to him and until their successors give is to the amendment not qualified retroactive ef- did fect, contrary support to the rule. of Kansas of terms preclude shortening *6 argues contention he years that in the elec- via to two City from four officials 3, amendment; on November he au 19702 was re- constitutional charter tained in six-year office for full term the charter thority power and to amend under a constitution to right carried with it the which did not require him to their elect length of term of determine age; incidentally require that to him to retire though even ed officials in effective date of the amendment because the terms would involve Davis, quot 70, deprive had reached supra, would be to the court cumbents. guaranteed by him a full term from the con- this statement approval ed with stitution Mo. City, Mo.App., under which he and 175 was elected Kansas Sanders “ under which accepted 1.c.665: thereafter App. 162 S.W. term; permit respondent to even to or officer еlected [A]n Dircks, 1. its right See: State ex rel. office or Scott in a no vested can, 111 S.W. and “[t]here cases therein cited. rule is the Am.Jur.2d, things, See no vested also: 16 in the nature Law, p. 218, precludes existing § and cases there cited. in an ** 16 repeal change See: *.” or its Am.Jur.2d, p. was, incidentally, 2. and § date This his seventieth birthday. office who created The cited. power, it have him in and retained change relator, any right Voss, Davis, 3. rel. et al. v. et frеe of any time, al., 163, 1. law at S.W.2d basic 418 c. and 1. c. their 167 170- disqualify change power Am.Jur., as to it so 172. also: See Public Of age. ficers, p. 905, Closely reach a officers who their § allied proposition an incumbent im- discussing takes I refrain from the Fourteenth definite term office with plied understanding power because it is that the which Amendment not con- opinion. in the majority abolish it before the sidered created the his in which event he expiratiоn of ** will find himself out of office SEILER, Judge (dissenting). power of logically follows that the In addition to concurring HEN- necessarily in- people to abolish dissent, I I LEY’s wish to out that as arbi- power less, to fix an cludes the do reasoning understand the of the majority or trary age at which those opinion, goes like this: since section retire, pointed thereto must even says non-partisan all judges court are compelling this would have effect to retire the intent of voters there- of an incumbent and the retirement non-partisan judges was to treat all customary his The cut short term. judges alike. But since circuit court who officers by which are method plan later are to hold of- come exempted from the fice for the term would have to which of a rules the inclusion above is had not been been entitled amendment “grandfather” clause in the circuit (this their is Sec. nor Neither its schedule.4 grandfather true clause) since clause grandfather schedule contains a change judge nomenclature judges appointed applicable to circuit appeals court of not to work a wholesale plan. nonpartisan court who removal office of those used Louis, judges of the St. Kan- known reasons, hold that above I would For the Springfield Appeals sas Court office of no vested rеlator has (this paragraph is found in of Sec. ef- prior to the judge as it existed schedule, my opinion, and in is not applica- date of fective § operates only grandfather all, but retirement, clause at him, required ble to plain disqualified as circuit he is to serve Louis, City and judges of the St. Accordingly, judge as of Appeal Springfield Courts of are to man- writ of quash I our alternative would appeals come the of the court damus. respective districts), it follows there their sup- reasons sufficient above grandfather be a clause for ev- must also port I the court should the decision believe ery level of —cir- However, another and reach. there is court, appellate and probate, supreme cuit *7 why should simple reason the writ because, opinion, “To quote the court — quashed few be stated destroy rule otherwise would be prоvides: judges “All words. Section ignore least those words ** [nonparti- appointed under which declare that * * * plan] san court shall obviously judges,’ and are ‘[a]ll (Em- seventy years age of ‘all’ of of an interest that indicative phasis Relator was supplied.) non-partisan court serving within the nonpartisan plan and Therefore, even be treated alike.” were to mean seventy. quoted words over clause grandfather there is no exempt they say, exclude class, judges applying to one, elsewhere since there is no clause to serve. can nevertheless continue un- in the amendment appli- gen- if there is a nonpartisan plan from like saying This is der the section, making up his re- they mandate classes applying rule to all cation of eral exception, aggregate, it has one but tirement. example, See, of Missouri. 3 of the Schedule to the Constitution uniformity, must be achieve there then to classes, many exceptions excep- way, put it another if there is exception there must be an
tion as people had I do not believe the
for all.
any such intention. HOEHN, Plaintiff-Respondent,
Earl E. HAMPTON,
Henry Defendant- Lee Appellant.
No. 34211. Appeals,
Missouri Court of District, Louis St. Division Two.
July