State Ex Inf. McKittrick v. Wymore , 343 Mo. 98 ( 1938 )

I. I concur in the result reached in the principal opinion. As I understand respondent's contention with respect to the issue of the exclusiveness of the statutory remedy for his removal from office, under allegations of the information, it is based upon constitutional limitations, and is this: That the Constitution delegates to the General Assembly the exclusive authority to provide for removals from office ("The General Assembly shall, in addition to the other penalties, provide for the removal from office of county, city, town and township officers on conviction of willful, corrupt or fraudulent violation, or neglect of official duty." Art. XIV, Sec. 7), and the General Assembly, pursuant to, and under the compulsion of that mandate, has enacted a statutory procedure therefor (Sec. 11202 et seq.), which is exclusive, and hence quo warranto will not lie. Or, as stated in the brief, "Under the constitutional provision (Art. XIV, Sec. 7) the General Assembly in mandatory terms is directed to provide for the removal of certain public officers from office; and when the General Assembly, under this mandate and delegation of power, specifies the procedure for such removals, the statutory remedy is as much a part of the organic law as if it were written in terms in the Constitution." [7] But the difficulty with respondent's position is that the constitutional mandate relied on, and under which the scheme for removal of public officers was enacted by the Legislature, was, I think, withdrawn when the people adopted Amendment 18 proposed by the Constitutional Convention of 1922-23, which was submitted at a special election held February 26, 1924. The official publication showing the amendments proposed by that convention, together with the accompanying "Address to the People," and form of official ballot, promulgated by the convention, shows, at page 70, the following:

=====================================================================================
Amendment No. 18
       Relates to Removal from Office and Prohibits Nepotism.
         Present Constitution.                      Proposed Amendments.
  Sec. 7. The General Assembly               Section 7. Laws may be enacted
shall, in addition to other penalties,     to provide for the removal from
provide for the removal from               office, for cause, of all public officers,
office of county, city, town and           not otherwise provided for
township officers, on conviction of        in this Constitution.
willful, corrupt or fraudulent violation,  Sec. 13. Any public officer or
or neglect of official duty.               employee of this State or of any
political subdivision thereof who
shall, by virtue of said office or
employment, have the right to
name or appoint any person to
render service to the State or to
(New Section)                     any political subdivision thereof,
and who shall name or appoint
to such service any relative within
the fourth degree, either by
consanguinity or affinity, shall
thereby forfeit his or her office
or employment.
                                     EXPLANATION.
    Section 7, Article XIV is amended to include all officers not
subject to impeachment as provided in Article VII. This proposal
also provides for the addition of a new section, Number 13, which
prohibits public officials from appointing relatives to office.
=====================================================================================

The form of ballot used in submitting the amendment was as follows:

------------------------------------------------------------------ | ARTICLE XIV. — MISCELLANEOUS PROVISIONS. | | | | YES | | Amendment 18. | | | |-------| | To amend Section 7 of Article XIV and to add new | | | Section 13 thereto: — Relates to removal from office and | NO | | prohibits nepotism. | | ------------------------------------------------------------------

The Constitution of Missouri, as it appears in the officially published Revised Statutes of Missouri, 1929, as well as in Missouri Statutes Annotated, page 260, shows Section 7, Article XIV thereof to be as follows: "The General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty. Laws may be enacted to provide for the removal from office, for cause, of all public officers, not otherwise provided for in this Constitution."

The principal opinion so treats the section, as, indeed, do all of the parties. Was the change wrought by Section 7 of Amendment 18, submitted by the Constitutional Convention of 1922-23, a mere addition, as above indicated, or was it an entirely new section? The amendment mentioned was one of six adopted at the special election referred to. It was pointed out by this court, en banc, in State ex rel. Aquamsi Land Company v. Hostetter, J.,336 Mo. 391, 79 S.W.2d 463, that except in one particular instance, none of the amendments submitted at the special election "expressly purported to repeal the particular sections of the Constitution which they were designed to affect." However, it was there stated, "An express provision to that effect was unnecessary under the generally applicable rule thus stated in Sutherland on Statutory Construction (2 Ed.), vol. 1, p. 44; `The amendment operates to repeal all of the section amended not embraced in the amended form.'"

Even without resort to the Journal of the Constitutional Convention (which unmistakably shows an intention to submit asubstitute for Sec. 7 of Art. XIV of the Constitution of 1875. See (232) 76.), we think it clear, and accordingly hold that the 1924 amendment had the effect of repealing the former provisions of Section 7 of Article XIV, and substituted a new section in lieu thereof providing as follows: "Laws may be enacted to provide for the removal from office, for cause, of all public officers not otherwise provided for in this Constitution." The promulgation of the result of said special election, and the amendments adopted thereat appearing in Laws 1925, pages 408-413, give support to this view. It will be observed that at page 411 Amendment No. 18 is set out, and Section 7 of Article XIV is shown to consist of only the matter last above set forth. Furthermore, it was so treated in State ex inf. Norman v. Ellis,325 Mo. 154, 28 S.W.2d 363, an opinion of the court en banc. It is manifest that the language of present Section 7 — that "Laws may be enacted" — is merely permissive, and so it cannot be seriously contended that it amounts to a constitutional mandate to the General Assembly imperatively requiring action on the part of the latter. This is consonant with the holding of the principal opinion in reference to the effect to be given to the use of the words "may" and "shall."

[8] II. The predicate of the charge of exclusiveness of remedy (by reason of constitutional limitations) having fallen with the change in the organic law, it follows that the question of whether it is beyond the power of the Legislature to interfere with the jurisdiction granted this court by Article VI, Section 3, of the Constitution is not in the case, and a discussion thereof is not necessary to a decision. Tipton, C.J., andEllison, J., concur.