211 Mo. 568 | Mo. | 1908
Lead Opinion
— This is a proceeding by the relator to obtain a peremptory writ of mandamus requiring the respondent as county clerk of Cole county to file the declaration of the relator as a candidate for the office of sheriff of said county in compliance with section 5 of an act of the 44th General Assembly entitled, “An Act to provide for party nominations by direct vote,” approved March 18, 1907, Laws of Missouri, 1907, page 263. An alternative writ of mandamus was awarded and service thereof waived and the county clerk filed his return thereto. The petition in substance states that the relator is a taxpayer, voter and citizen of Cole county, Missouri, and has been for four years past; that at the general election held on the first Tuesday after the first Monday of November, 1906, he was duly elected to the office of sheriff of Cole county for the full term of two years and until his successor should be elected and qualified; that thereafter he received a certificate to said office and duly qualified as the law required and has since discharged the duties of the said office. That prior to his election and entering upon the discharge of his duties as such sheriff on January the first, 1907, he had not held said office nor been an incumbent thereof; that at the time of the election at which relator was elected' sheriff of said county the following provision of the Constitution of 1875 of this State, to-wit, section 10 of article 9 thereof, was in force:
“Section 10. There shall be elected by the.qualified voters of each county, at the time and places of electing representatives, a shériff and coroner. They shall serve for two years, and until their successors
Relator then alleges that at the said general election held in November, 1906, the following amendment to the Constitution relating to the office of sheriff was adopted by the voters of this State:
“Amend by striking out all of section 10' of article 9 of the Constitution of the State of Missouri and adopt in lieu thereof a new section to be known as section 10,. article 9, of the said Constitution and to be in words and figures as follows:
“Section 10. There shall be elected by the qualified voters in each county on the first Tuesday following the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties of their office they shall give security in the-amount and in such manner as shall be prescribed by law and shall be eligible only four years in any one period. Whenever a. county shall be hereafter established, the Governor shall appoint the sheriff and coroner therein, who shall continue in office until the next succeeding general election and until their successors, shall be duly elected and qualified.”
That by section 5. of the Act of March 18,1907, candidates at said primary election for nomination for county offices shall at least sixty days before the date
In his return the respondent demurs to the petition of relator and assigns two grounds of demurrer, to-wit: First. Said petition and alternative writ fail to state facts sufficient to constitute a cause of action. Second. Said petition and alternative writ and the matters and things therein stated and set forth are not sufficient in law and equity to entitle relator to the relief asked for in said petition or to authorize the issuing of said writ of mandamus.
The demurrer admits all the questions of fact in regard to the respective qualifications of the relator and respondent and the regularity of the declaration of the relator’s candidacy, so that the sole question for our consideration at this time is whether the relator, having been elected sheriff of Cole county at the general election held in this State in November, 1906, and being the present incumbent of that office, is precluded, by the terms of the Constitutional amendment of 1906, in relation to the office of sheriff and known as section 10 of "article 9 of the Constitution of this State, from holding the office as his own successor for the term of four years provided by said amendment, to be filled at the general election to be held in this State in November, 1908.
If relator will be eligible to the office of sheriff to be filled at the nest general election to be held in November, 1908, he is entitled to a peremptory writ of mandamus requiring the respondent clerk to accept and file his declaration of candidacy for the office of sheriff of Cole county, as he has no other adequate remedy.
The respondent has refused to accept and file said declaration for the sole reason that the relator Scott is not eligible to the said office because relator was elected sheriff of Cole county in 1906 and duly qualified as such and is now the incumbent of said office and
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. l. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. John
But for the unequivocal language of the amendment itself there would be great force in the argument that the provision limiting the term of a sheriff to four years is one of eligibility, which might refer to the past incumbency of the office as well as the future, but when it is borne in mind that the amendment of 1906 leaves nothing to implication but expressly repeals the former constitutional provision, to-wit, section 10 of article 9, of the Constitution of 1875*, it seems to* us that it marks a departure in the law and creates a new rule for the future. Much has been said in regard to the long established public policy of the State in fixing in former constitutions the limitation of the term of a sheriff to four years in certain specified periods; thus, in the Constitution of 1865, section 22, article 5, it is provided that “a sheriff shall be eligible four years in any period of eight years,” and as we have already seen in the Constitution of 1875 he was limited to a term of four years in any six years. While “public policy has been declared to be the handmaiden of sound legal exposition” it has also been declared to be “a very unruly horse.” Judge Story, in his work on Contracts (2 Ed.), volume 1, section 546, says: “It has never been defined by the courts, but has been left loose and free of definition, in the same manner as fraud. This rule may, however, be safely laid down, that wherever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void, as being against public policy.”
While, therefore, holding that the amendment does not render a sheriff, who has held a term under section 10 of article 9 of the Constitution of 1875 immediately before the adoption of the amendment of 1906, ineligible to the office of sheriff to be filled at the election in 1908, and thus enable him to hold.continuously for more, than four years, after all this is but an incident of the change from the Constitution as it was in 1875 to the provision as it exists since the amendment of 1906, and this must have been evident to the author of the amendment and could have readily been avoided by inserting a proviso that sheriffs who had served one or two regular terms should not be eligible to the office at the election in 1908. But the fact that no such pro
Dissenting Opinion
DISSENTING- OPINION.
— Under our first Constitution, sheriffs were “ineligible four years in any period of eight years.” [Const. 1820; art. 4, sec. 23.]
Under that of 1865, sheriffs were “ineligible four years in any period of eight years.” [Const. 1865, art. 5, sec. 22.]
Under that of 1875, sheriffs were “eligible only four years in any period of six.” [Const.' 1875, art. 9', sec. 10.]
Under each of said constitutions the term of office of sheriffs was two years, and sheriffs in Missouri have always been on the dignified plane of constitutional officers, constitutionally regulated.
By an amendment in 1906, section 10 of article 9, supra, was stricken out and a new section adopted which, so far as material, reads:
“Section 10. There shall be elected by the qualified voters in each county on the first Tuesday next following the first Monday in November, A. D., 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their succes
The constitutional provisions now in force relating to sheriffs are section 10, supra (i. e., the amendment of 1906), and section 11 of article 9 of the Constitution of 1875, relating to vacancies, the last clause of which reads: “No person elected or appointed to fill a vacancy in either of said offices [sheriff or coroner] shall thereby be rendered ineligible for the succeeding term.”
Relator was elected sheriff of Cole county at the same general election in November, 1906, adopting section 10, supra, and repealing the old section 10. Having qualified, he took office on January 1st, 1907. The question here is: Is he eligible to a term of four years more, making an official incumbency of six consecutive years in the office of sheriff? Indeed under the construction given to the Constitution by my learned brother Gantt, concurred in by five of the brethren, it is a matter of no consequence whatever whether he held his term of office for only two years, or whether he held four years in the preceding six. In other words, the argument runs that the restrictions of the old Constitution no longer amount to anything, and; old things having passed away and all things having become new, a sheriff, ineligible under the old was made eligible by the new provision, and may thus serve eight consecutive years in a pinch.
I do not concur in that interpretation of the Constitution and put my non-concurrence on the following grounds:
(a.) Section 10, article 9 (the amendment), must be read in connection with old section 11 of the same
(b) So, too, I am unable to perceive that it makes any difference whether the term relator served was under the old constitutional provision or under the new, so long as it was under one or the other, and so long as the two terms taken together make a continuous-service contrary to either. The question is one of eligibility and to my mind how the fact of ineligibility arose is wholly beside the case so- long as it actually exists.
(c) A constitutional amendment is merely a provision of paramount law — -a plebiscitum — a law initiated by the General Assembly and adopted by the people by way of referendum. Rules of constitutional construction do not essentially differ from rules of statutory construction [8 Cyc. 729.] The object of construing either statutes or Constitution, in order to do* refined and exalted justice, is to discern the intendment of the law and enforce that intendment. To get at
In Hey don’s case, 3 Coke 18, the rule was quaintly and strongly put in this way: ‘ ‘ That for the sure and true interpretation of all statutes in general (he they penal or beneficial, restrictive or enlarging of the common law,) four things are to he discerned and considered : 1st. What was the common law before the making of the act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief .... and to add force and life to the cure and remedy, according to the true intendment of the makers of the act, pro bono publico.”
Dropping the phrase “common law” and substituting for that phrase the word “constitution,” we may paraphrase Sir Edward Coke’s rule and ask (1) what was the provision of the Constitution in the particulars in hand before the amendment? (2) What was the mischief and defect for which the Constitution did not provide? (3) What remedy did the people resolve and appoint to cure the disease? (4) And what was the true reason for the remedy?. When true answers to these questions are discerned, it would seem to be our bounden duty to make such construction as shall, without doing violence to the language employed in the Constitution, suppress the mischief and advance the remedy.
What were the provisions of the Constitution in the
The question has valuable historical side-lights showing a settled public policy (not only of our own constitutions but of the common law) in a rooted jealousy by the people of long official terms for sheriffs since the day of Alfred the Great. For instance, the sheriff at common law did the king’s business in the county. Anciently, in some counties, the office of sheriff was hereditary, but it was provided as to others “that the commons might choose such as would not be a burden to them,” and Blackstone points out that “sheriffs, by. virtue of several old statutes, are to continue in their office no longer than one year. ’’ He was the keeper of the king’s peace,
By section 10044, Revised Statutes 1899, he is conservator of the peace witbin his county and. is commanded to cause all offenders against the law, in his view, to enter into recognizance, with security, to keep the peace and to appear at the next term of the circuit court of the county, and to commit to jail in cases of
'With such power in his hands to bind or loose, to-blink or see, the amendment of 1906 left him eligible-to hold four consecutive years of office but struck down the mischief of his running for re-election. It cast all motes and beams from his official eye and left him an. eye clear and single to his duty — an excellent eye for a sheriff to have. Behold, then, the mischief and the remedy. The mischief was in his canvassing for votes to secure a re-election tempting him, peradventure, beyond his strength, to misuse his official power or blink official duty. The remedy was to do away with biennial elections to the office and leave him four years as one term, not six years in two terms, as here.
The opinion of my brother it seems to me neither advances the remedy nor retards the mischief. Such interpretation is equivalent to adding a proviso to the-amendment not there, to-wit: “Provided that sheriffs, ineligible under the old Constitution because of length of service are made eligible by the new;” or a pro vis o-to this effect: “Provided that all sheriffs now in office whether for the first or second term shall be eligible to re-election in the general election of 1908 for another term of four years.”
(d) Could it possibly have been within the intendment of that act to give' so singular an advantage to the then incumbents of the office? — an advantage denied for nearly- a hundred years to all former sheriffs and denied to all that come after the present official termt If that be so then the amendment did not disclose all
It cannot be that any hardship to those persons who were elected to the office in the general election of 1906 was within the purview of the amendment; because the grim humor of the situation is that those persons voluntarily ran for the office at the time the amendment was submitted and took their chances of its being adopted. All they have to do is to wait four years and run again if they choose. Eligibility to office is not an inherent right of citizenship, but is regulated by law.
(e) Again: the learned Attorney-General argues that “it is a settled principle of law, applicable alike to constitutions and statutes, that where an amendment is made which, in addition to the new and amendatory features, contains provisions which were also in the law superseded, the provisions common to both shall be construed as remaining in force, without break in continuity, in the transition from the old to the new.” I take that proposition as sound law. [Cooley on Const. Lim. (7 Ed.), pp. 96-7.] Any other makes a gap in the law — a chaotic condition never to arise by construction, unless that interpretation be inevitable. It involves the idea that there was a space of time between 1906 and 1908 when there was no constitutional provision operative. Applying the above proposition to this case we find that the old constitution did not allow more than four years continuous service. We find the new contains the same provision. Hence, the provision being common to both continued in force during the transition period. Being in force at all times, I cannot understand why the interpretation placed upon
(f) In Wright v. Adams, 45 Tex. l. c. 140, Moore, J., well said: “It is believed, moreover, to be a sound rule of construction which holds, when the duration or term of office which is filled by popular election is a question of doubt or uncertainty, that the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and authority to refill it.” See, also, “Opinion of the Judges,” 114 N. C. (Appendix) loc. cit. 929; Throop’s Public Officers, section 308. Therefore, even if we were to hold (as we may) that the amendment left the matter somewhat uncertain and ambiguous, we ought further to hold as indicated in other paragraphs of this opinion, and thus solve the doubt in favor of the shortest term under the doctrine of Wright v. Adams, supra.
In my opinion the final writ should not go.