State ex rel. Baker v. Fiala

Currier, Judge, delivered the opinion of the court. This is a proceeding in the nature of a writ of quo warranto, and is designed to test the right of the respondent to the office of treasurer of the county of St. Louis. He claims the office under and by virtue of an appointment by the St. Louis County Court, made January 5, 1871, to fill a supposed vacancy. If the vacancy in fact existed, it is not questioned that the court had the right to fill it; but if there was no vacancy, then the action of the court was nugatory and the respondent took nothing by the appointment. Whether or not there was an existing vacancy at the time of the appointment is therefore the ultimate question to be decided. — 316 — The act of March 3, 1857 (Sess. Acts 1856-7, p. 676), entitled “ an act concerning the assessment and collection of the revenue in the county of St. Louis, and for other purposes,” provided, among a variety of other things, that the treasurer of the county should be elected on the first Monday of August in the year 1858, and hold his office for the term of six years, and until his successor should be elected and qualified. It further provided (§ 9) that “on the same day, in every sixth year thereafter, a treasurer of said county should be elected for a like term.” The act indisputably fixed an official term of six years, and provided for an election in August, 1858, and every sixth year thereafter. It seems to be conceded on all hands that if this act is now in force, the action of the County Court in the appointment of the respondent was warranted by law, and that the respondent is consequently legally entitled to hold the office. The following agreement is filed in the cause: “It is agreed by counsel that the only issues intended to be presented to the court by the pleadings in this cause are: “1. Whether the act of March 3, 1857, has been repealed, either by the provisions of the new constitution or by subsequent statutory enactments. “ 2. Whether having been elected by receiving a majority of the votes cast of the qualified voters of St. Louis county at the general biennial election held in said county on the Tuesday after the first Monday in November, 1870, entitled one F. W. Mathias to the occupancy of said office; it being admitted that, if lawfully elected on said day, he has since properly qualified. That is, whether an election of county treasurer of St. Louis county could, under the law in force, be properly and lawfully held in St. Louis county on said day. “3. It is agreed that if F. W. Mathias was .not legally elected on said day, a vacancy did exist on the 5th day of January, 1871, and that the County Court of St. Louis county did fill the same by appointing John T. Fiala, the respondent, and that he has since that day properly qualified.” It is quite apparent from the foregoing that no claim is set up in behalf* of Mr. Mathias, asserting legal title to the office in — 317 — him in virtue of his election in November, 1870, unless that election was held in pursuance of law; nor is it claimed that the election was held in. pursuance of law if the act of March 3, 1857, fixing the time for the election in August, is now in force. Thus we are brought back to that act, and to the question whether or not it has been repealed. The Attorney-General, in behalf of the State, takes the affirmative, and insists that the act has been repealed (1) by operation of the new constitution, and (2) by subsequent legislative enactments. I will now proceed to examine the grounds of this claim. It is first insisted that the new constitution (article II, § 2) abrogates the act. There are two clauses in the section referred to which are supposed to have some bearing upon the present inquiry. The first provides that ‘ ‘ g'eneral elections shall be held biennially on the Tuesday next after the first Monday in November;” the other, that “no special election, State, county or municipal, shall be appointed to be held on a Monday.” It will at once be seen that provision is here made for two classes of elections — one general, the other special. The first has no connection with the present investigation, and for the reason that we are not upon the subject of general elections. The other — that relating to special elections — is germain to the issues raised by the pleadings. The constitution forbids the holding of special elections on Monday, but does not provide, as in case of general elections, on what particular day a special election may be held. That is left to the discretion of the Legislature, subject to the prohibition as to Monday. But the act of March 3, 1857, as we have seen, appointed the election of treasurer to be held on Monday, namely: the first Monday of August, 1858, and every six years thereafter. This clause of the act is in conflict with the constitutional provision under consideration, and was therefore repealed by it. The two can not stand together, and the legislative provision must yield to the requirements of the constitution. It does not thence follow, however, as the relator seems to claim, that the entire act was repealed. No such result followed. The act was repealed only to the extent that it came in collision with the constitution. The — 318 — constitution does not affect the treasurer’s official term, or any of his duties, relations, or responsibilities. These all remained intact. But this result followed, namely: that the office could not be filled through the medium of a popular election until the Legislature acted on the subject and appointed a day upon which an election could be legally held. Accordingly we find that the Legislature, at its session next following the adoption of the constitution, took the matter in hand, and by an appropriate general law enacted as follows: ‘ ‘All county, town and city elections required by former or existing laws tobe holden on Monday, shall hereafter be holden on the Tuesday next succeeding the Monday specified in said law as the day for holding such elections.” (Sess. Acts 1865-6, p. 88.) This act applies, and was manifestly intended to apply, to St. Louis county and to all the counties in the State similarly situated. It was evidently passed in view of the constitutional prohibition against holding special elections on Monday. Under it the election for county treasurer of St. Louis county would occur on the Tuesday following the first Monday of August in the year 1870, and not on the Tuesday following the first Monday of November of that year, the date of Mr. Mathias’ supposed election. It is suggested, however, that the act last referred to is void as being in conflict with that part^ of section 27, article IV, of the constitution which prohibits special legislation, and which requires the enactment of general laws wherever such laws may be applicable to the matter legislated upon. I fail to see the force of this objection. The act in question is a general law, and operates uniformly all over the State. It does not furnish one rule for one county and a different rule for another. Whenever an election was appointed by law to be held on Monday, the election was postponed to the Tuesday following. Again, it is suggested that the act, if it has any force, revives special laws, and that it is subject to a constitutional objection on that ground. In reply to this suggestion it is sufficient to say that it did not revive the act of March 3, 1857, for the reason that that act was never suspended or repealed, so far as is shown. It was not suspended or repealed by operation of article ii, — 319 — section 2, of the constitution, as we have already seen. . The repeal of a single clause in an act or section does not necessarily repeal the whole act. The fallacy of the objection lies in the contrary assumption — an assumption altogether gratuitous. The act of March 19, 1866, thus objected to, carries into effect the most manifest intention of the framers of the constitution. Nor is there any force in the objection that the act of March 3, 1857, was repealed by the first section of chapter 38 of the General Statutes. There is nothing to indicate that the Legislature had in view the local St. Louis act, or any other local laws, when it adopted that chapter and section. Besides, the chapter is a mere reproduction of article I, chapter 46, of the act of December 4, 1855 (R. C. 1855, ch. 46). It is therefore to be construed as a mere continuation of an old law, and not as a new enactment. (Gen. Stat. 1865, p. 883, § 5.) For the purposes of construction it is to be treated as having been passed in 1855, two years before the act it is supposed to repeal became a law. In no view can chapter 38 of the General Statutes be regarded as coming in conflict with the local St. Louis act of 1857. Again, it is insisted, and with much urgency, that the act of March 22, 1870 (Sess. Acts 1870, p. 35), repeals the act of March 3, 1857. This objection derives all its seeming force from a superficial view of the two acts. A careful comparison and examination of them dissipates the objection. Such a comparison and examination will show that the Legislature, in passing the act of March, 1870, had no reference whatever to the local St. Louis act of 1857. Its aim was not to overturn any local act, but to amend the general law in relation to county treasurers. Its title and context prove this. The general law, which it was proposed to modify by the amendatory act, forbids the election of the same person for “ more than two successive terms.” To repeal this clause was the sole object of the act of March, 1870, and that was accomplished. The repeal took the form of a re-enactment of section 1 of the old law in hxc verba, with the proviso or prohibitory clause left out. That was the whole of it. No other change was made or attempted. It was, in effect, a mere repeal of the proviso. In that view it was in no way in — 320 — conflict with the act of March, 1857. But assuming, for the sake of the argument, that section 1 of the act of March, 1870, had •been enacted as a new law throughout, and that its provisions were in conflict with the provisions of the prior local act, was the local act thereby repealed by implication ? Repeals by implication are not favored. The rule in this State may be regarded as settled that a general statute, although inconsistent with the provisions of a prior local law, will not repeal the latter unless there is something in the general law, or in the course of legislation upon its subject-matter, that makes it manifest that the Legislature contemplated and intended a repeal. (Vastine v. McDonald, 38 Mo. 534; State v. Pearcy, 44 Mo. 159.) In the case at bar it does not appear that the Legislature, in enacting the law of March, 1870, had in view the local St. Louis act, nor is there anything in or connected with the act (§ 1) that indicates a purpose on the part of the Legislature to repeal or do away with the local enactment. In principle the case at bar can not be distinguished from the Yastine case. In State v. Pearcy the facts were different and a different conclusion was reached, but there wa's no abandonment of the undoubtedly correct principle announced in the Yastine case. But the act of March, 1870, contained an affirmative repealing section in these words: “All acts and parts of acts in conflict with this act aré hereby repealed.” Do these words spend their force upon inconsistent general laws ? or do they, in one breath, sweep away all conflicting local legislation as well? It would be dangerous, to say the least of it, to hold the affirmative of the latter proposition in a State where special legislation has abounded as it has in the State of Missouri. The repealing clause must be construed in connection with the whole act, and with reference to the intention of the Legislature in enacting it. The same rule of construction is to be applied to it that is applied to the main body of the act. The word “ repealed” is not necessarily to be taken in its most sweeping and absolute sense. In Rex v. Rogers, Lord Ellenborough says: “ This word is not to be taken in an absolute, if it appear upon the whole act to be used in a limited sense.” (10 East, 573; and see Canndon v. Anderson, 1 T. R. — 321 — 723; Sedgw. Stat. and Const. Law, 129.) The whole act, then, is to be consulted to determine the proper construction to be placed upon the repealing clause, howeyer comprehensive the terms may be in which that clause is phrased. This is a doctrine of common sense as well as of the law. Apply the principle to the act of March, 1870. We have already seen that the sole and only object of that acUwas to get rid of a proviso in a general law which restrained any particular treasurer from holding the office for more than two successive terms. The proviso was not in words repealed, but it was taken out of the statute in the manner already described. The obvious and legitimate object of the repealing section was to abrogate all general laws which imposed the objectionable prohibition. It is patent, upon a comparison of the law amended and the law amending it, that it was no part of the purpose of the amendatory law to touch the questions of election or the term of office. These were matters wholly foreign to the purposes of that enactment. In my judgment, the operation of its repealing clause should be limited at least to general laws, if not strictly to the subject-matter of the abolished proviso. Perhaps the latter is the safer rule where the repealing clause, as in this case, is expressed in general terms, without any specific designation of the particular statute intended to be operated upon. It may here be remarked that the facts connected with this litigation serve to make manifest the mischief and confusion attendant upon special legislation. I have examined the case with no bias in favor of legislation of that description. Courts, however, are bound to declare the law as they find it. It is the business of the Legislature, and not of the courts, to amend the laws if the public good require it. The conclusions I have reached have already been indicated. I am of the opinion, and entertain no doubts of its correctness, that neither the provisions of the constitution nor any of the acts passed under it, to which our attention has been called, operate an abrogation of the local St. Louis act of March 3, 1857. The act being still in force, it determines the official term of the treasurer of St. Louis county, and fixes the time for his election, — 322 — except as the act has been amended by the subsequent act of March 19, 1866, substituting the Tuesday after the first Monday of August as the day of election, in place of the first Monday of that month. The result is that the application for a judgment of ouster must be refused. The other judges concur.