251 Mo. 325 | Mo. | 1913
This is an original proceeding in the nature of quo warranto, begun by Thomas B. Harvey, as circuit attorney of the city of St. Louis, against Joseph A. Wright, respondent, to try the title by which respondent holds the office of member of the Board of Election Commissioners of the said city of St. Louis.
Respondent was appointed such member of the Board of'Election Commissioners by the Governor of Missouri on January 29, 1913, for a term ending January 15,1917, and duly commissioned as such by a commission duly and regularly issued qn February 3, 1913. He has duly qualified by taking the required oath and filing bond.
It is conceded that respondent has been in every way pursuant to law, duly appointed, commissioned and qualified, and that he is in all ways competent to fill this position, save and except as to his political faith and affiliation. He is a member of the Progressive party, and was a member thereof at the time of his appointment. Being so affiliated politically, is he eligible and qualified under the statute below quoted? If he be not so eligible, may he be reached and' ousted by this court after being commissioned by the Governor and confirmed by the Senate?
OPINION.
I. Respondent was. appointed to this office by the Governor of Missouri by virtue of the authority conferred on the latter by the following section of the Act of March 27, 1911 (repealing section 6190, R. S. 1909), to-wit: .
“Section 6190. There is hereby created a nonpartisan board of election commissioners for each city governed by the provisions of this article, composed*331 of four members wbo shall be appointed as follows: Within sixty days after this act shall become a law, the Governor, by and with the advice and consent of the Senate, shall appoint for each of such cities four mem- ' bers, who shall hold their offices until January 15, 1913, and until their successors are commissioned and qualified. Successors shall be appointed in like manner and their terms of office shall be four years, and until their successors are commissioned and qualified. Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the State committee of the political party to which the Governor belongs. In making the appointments of the commissioners the Governor shall designate the commissioner who shall be chairman of the board and the one who shall be the secretary of the board, provided the chairman and secretary shall not both belong to the same political party. In case of a vacancy in said board from any cause whatever, it shall be filled in the same manner and from like lists, and subject to confirmation by the Senate, as in the case of original appointments, save that the appointee for any unexpired term shall be a member of the same political party to which the person whom he may succeed belonged, and in no ease shall more than two members of said board belong to the same political party.”
So much only of this section is pertinent to this inquiry. Other parts relate to 'acts of qualification and to character, and to matters and details of residential eligibility, concededly possessed by respondent.
Further narrowing the issues in controversy, '-relator contends that the appointment of respondent, who
“Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the State committee of the' political party to which the Governor belongs.? ’
This court in a well-considered case (State ex inf. v. Washburn, 167 Mo. 680), held unconstitutional that part of a similar provision in a similar law which. conferred upon a committee of a political party, the privilege of suggesting to the appointing power names of eligible persons for appointment. Under the authority of this case, which is so clearly the law and which is on this point so well-considered, that we shall not again review the reasons, this much of the quoted clause, to-wit, “and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs, and the other two members of said board shall be selected from six eligible citizens named by the State committee of the political party to which the Governor belongs,” clearly falls down as invalid and void, because not constitutional.
The Act of March 27, 1911, now under discussion, by the very first sentence thereof, recites as the object of the enactment, that “there is hereby created a nonpartisan board of election commissioners for each city governed by the provisions of this article.” Other provisions of this amendment of 1911 accentuate and make plain this legislative intention so to create such a non-partisan board. Clearly such a board could not be created and certainly perpetuated, unless the political eligibility of the members- thereof were written into the law, and the Legislature so wrote this intent into this law in clear and unmistakable words.
Did the makers of the Constitution, except where otherwise specifically excepted, and except where the power was otherwise specifically lodged, confer upon the Governor of the State the power of appointing officers generally, as distinguished from those of whom specific mention is made in the Constitution? The view is extant and so persistently so, that this power enures to the Governor, as a power directly and specifically conferred on him by the Constitution, that a setting out of the several provisions of our Constitution touching the appointment of officers is pertinent, may be instructive, and certainly will save the labor of personal investigation. These provisions, and all of them which are in any manner pertinent, are as follows:
Sec. 11, art. 9: “Whenever a vacancy shall happen in the office of sheriff or coroner, the same shall be filled by the county court. ...”
Sec. 32, art. 6: “In case the office of judge of any court of record become vacant by death, resigna
Sec. 11, art. 5: “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.”
Sec. 9, art. 14: “The appointment of all officers not otherwise directed by this Constitution, shall be made in such manner as yiay be prescribed by law.”
Naturally, since we here are dealing with a statute which while conferring on the Governor the power of appointment, yet prescribes the qualifications of the persons who may be appointed, we need not concern ourselves with other statutes passed by the Legislature, and which almost universally have conferred on the Governor the power of appointment of such officers as may be provided for by such statutes. Here the power in the Governor to appoint did not accrue to him directly from the Constitution, but came to him indirectly by delegation from the Legislature, to whom the power of selection or appointment was directly conferred by the Constitution (to be exercised of course not directly, but through statutes). We need only look to the Constitution to see where the power of appointment has its source, so far at least as we are here concerned, that is, with an office and an officer such as is here under discussion and which was created by the Legislature. So looking, we find it lodged in such cases in the Legislature, or left for legislative determination, to be exact.
Our Constitution by its provisions may be said to be a limitation upon the powers of the legislative department, but a grant of powers to the executive branch. It fairly follows that the Legislature may not trench upon, limit, attach conditions or restrict the exercise of such powers as are specifically conferred on the executive branch by the organic law. But in
In conferring this power of appointment on the Governor, the Legislature had the power to attach such conditions to it and to require such qualifications in those appointed by the Governor as it saw fit, so long as those conditions were not shared by others with the Governor, or thrown upon others, wholly or in part, for their determination, and so long as the qualifications were not so drastically restrictive of the executive volition as to become for one of these three reasons in conflict with the constitutional provision requiring the separation and the retaining separate of the three co-ordinate branches of government. [Article 3, Constitution of 1875.] That this is true is persuasively shown by the many statutes now in force making identically such prescriptions, as well as by the trend of the many well-considered cases dealing with this and cognate questions. [State ex inf. Hadley v. Washburn, 167 Mo. 680; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. St. Louis, 216 Mo. 1. c. 96; Ex parte Lucas, 160 Mo. 218.] We conclude then that the condition of eligibility in an appointee that he shall “be a member of the leading party politically opposed to that to which the Governor belongs,” was a
We need not cite numerous cases from other jurisdictions or load down this opinion with text-book 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. 1. c. 697, said:
“The point is advanced that if the Act of 1899 is unconstitutional in the particular named, the whole act*337 is void and tlie 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. 1. c. 176, where the court says, referring to the Washburn case:
“The court also held that although the part of the act providing the manner of making the appointment in order to secure a bi-partisan board was void, the remainder of the act was valid, and the court upheld the appointment made by the Governor contrary to the express requirement of law.”
As was so aptly stated by Graves, J., in his concurring opinion in the Tolerton case, 1. c. 186:
“Prom 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 rulé 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. 1. c. 171; State ex rel. v. Taylor, 224 Mo. 1. c. 474; State v. Bockstruck, 136 Mo. 335.]
This case is upon the facts and the thing sought to be done clearly to be distinguished from the case of
We are not able to see any reason why the provision contained in the first clause of the section under consideration should be invalid for any inherent or self-contained defects. This provision, in order to certainly secure a non-partisan board, in conferring on the Governor the privilege of appointment, coupled with the grant of the power of appointment certain conditions of qualification in the appointee, to-wit, that two of them, shall be from one party and two from another. Does this militate in any wise against that provision of our Constitution (Art. 3, Constitution of 1875) which requires the segregation of our tripartite governmental functions ? We think not. We have seen that as to officers such as election commissioners, the Constitution has lodged in the Legislature the power of authorizing others to make appointments, or (that which is tantamount) the right of delegating by statute to some one else the ministerial power of appointment. It says in effect to the Governor: “We have provided for certain officers whom we desire to have appointed; will you appoint them for us; doing so, in
We are constrained to hold then, that the requirement of the Act of 1911 that two members of the board of election commissioners shall be members of the leading party politically opposed to the Governor, is valid and constitutional; that it is not rendered invalid by reason of the unconstitutionality of the remainder of the sentence, nor by any inherent defect contained in its own terms which trench upon the Constitution.
If by this contention respondent means that as a matter of law we may not go behind the commission of the Governor, we answer that this point is fairly, well-settled by the case of State ex rel. v. Vail, 53 Mo. 97. In the above case the authorities purport to be reviewed, in so far as this State is concerned, and they were said to be on this point “conclusive on this court.”
In the case of State ex rel. v. Steers, supra, Wagner, J., said:
“A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office without having been legally elected, it is unlawful holding, and he, may be ousted at the instance of the State, notwithstanding his commission. [Bashford v. Barstow, 4 Wis. 567.]”
Changing merely the words “election” and “elected,” to “appointment” and “appointed,” what is said above fairly well applies to the instant case.
If on the other hand respondent has reference to a question of fact, when he insists that the determination. of the Governor and Senate conclude us, the answer may well be that this would be true if the record were silent as to the political affiliation of respondent. The condition would then, however, arise from the entertaining of a presumption, rather than from the application of any inherent doctrine allied to that “divinity which doth hedge a king.” We have in the record, however, the clear cut charge that respondent is a member of the Progressive party, as well as his frank admission of the truth of this charge. Can we say in the light of this that respondent is a Republican? Would it not be tantamount to saying that black is white? While appointments to office have been known to change the political complexion of men, respondent stands here solemnly averring that he has not been so affected. Relator inquires with some considerable degree óf pertinence whether, if the Legislature had required the appointment of a male to this office and the Governor had appointed and the Senate had confirmed a female, would “she” have become a male ipso facto, to the extent of precluding judicial de
We must ascertain the meaning of a statute by looking at it in a sense by the four corners. This statute provides that the “State committee of the said leading party politically opposed to that to which the Governor belongs” shall do certain things. It might well be, if respondent’s contention be correct, that the leading political party in a nation-wide sense would have neither adherent, voter, party, or organization in this State, thus by such logic leading up to a ridiculous and impossible situation. [Verdin v. St. Louis, 131 Mo. 1. c. 163; Perry v. Strawbridge, 209 Mo. 1. c. 642.] Besides this reductio ad ab sur dam, which would seem to settle this contention, certain presumptions coniine us to our own State. A statute is prima facie confined in its operation to persons and conditions within the territorial jurisdiction of the Legislature. [Beale on Rules of Legal Interp., p. 232.] “Prima facie every statute is confined in its operation to the persons, property rights or contract which are within the territorial jurisdiction of the Legislature which enacted it.” [2 Lewis’s Sutherland on Stat. Con., sec. 513.] We elect to our offices our own citizens, of our own State, under the,provisions of our own laws. We never elect by direct suffrage a citizen of another State to any office; these are' the elections at which the election commissioners act, and the elections which they are required to hold. We conclude then that it is too clear for argument that by the “leading party politi-' cally opposed to that to which the Governor belongs,” is meant the “leading party” in this State.
It is more than possible that this is true as a matter of practice; also we may say, without offense, as a matter of practical politics. But it is not true as a matter of law. There is no emergency clause appended to this act, and it is not yet in force. (An emergency clause would in our view, however, add nothing toward making it apply.) The act by its terms in no wise purports to look backward or to be designed as a matter of law to be curative in its intent. This law bears none of the outward earmarks of a retrospective statute. Unless it bears such indicia, a discussion in the light of the rules of construction would seem to be but * ‘ weary, stale, flat and unprofitable, ’ ’ for our court has said in the case of State ex rel. v. Dirckx, 211 Mo. 1. c. 577:
“The settled rule of construction in this State, applicable alike to the constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. 1. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76; Cooley on Constitutional Lim. (6 Ed.), page 77; Shreveport v. Cole, 129 U. S. 36.]”
This rule is also in consonance with the text-book law:
“It is well-settled rule of construction that laws relate to the future, and are not to be construed retrospectively, or to have a retrospective effect, unless, it shall clearly appear that it was so intended by the Legislature, and unless such construction is absolutely necessary to give meaning to the language used.” [6 'Am. & Eng. Eney. of Law, p. 939.]
“In every case of doubt the doubt must be resolved against the retrospective effect.” [36 Cyc. 1208.]
Other points urged we need not discuss, in the light of the fact that the amendment of the Act of 1911 by the Act of 1913, will shortly, when it shall become effective, so change the law as to render much that has been said and all further that could be said some • what like unto ancient history.
It follows that, 'under the provisions of the Act of 1911, respondent was not eligible to appointment as a member of the Board of Election Commissioners, and that the writ of ouster prayed for should issue, and it is so ordered.