State Ex Inf. Barrett v. Imhoff , 291 Mo. 603 ( 1922 )

This is an original action in the nature of an application for a writ of quo warranto brought in this court to oust from office certain township officers of Wright County. The alleged invalidity in the proceedings of the county court which resulted in the adoption by the people of township organization in said county, is the basis of the action. Two grounds of invalidity are alleged: One, that the order of the court submitting the question to the people is insufficient in failing to show that the court found that a petition signed by more than one hundred voters of Wright County had been filed, asking the court to submit the proposition to the people for their adoption or rejection. The order as entered is as follows:

"The petition for township organization examined, the same found to contain over one hundred names of voters of Wright County; therefore the court orders that the clerk of this court submit this to voters, by ballot. Vote to be submitted at the general election in November, 1920."

The specific defect complained of is that the order, instead of stating that the petition was signed by more than one hundred legal voters, states that "it was found to contain more than one hundred names of voters."

The second contention is that the question was not submitted on the constitutional ballot as provided by Section 4944, Revised Statutes 1919, but was printed at the bottom of the tickets containing the names of candidates for the various offices to be voted for at said election, in the words following:

"For township organization

"Against township organization."

I. Jurisdiction is entertained by this court under the authority of Section 12, Article VI, Constitution of Missouri, and our ruling in State ex rel. School District v. Harter, 188 Mo. 516, cited with approval in State v. Con. School District, 209 S.W. (Mo.) l.c. 99, upon theJurisdiction. theory that "the title to an office under the State" is involved. This, although the persons sought to be ousted are not State officers within the meaning of the Constitution, and despite the fact that a township is not a political subdivision of the State so as to confer appellate jurisdiction upon this court in a case where the township is a party. The rulings referred to were, it is true, in regard to the validity of the organization of school districts. There does not seem to be any convincing reason why the rule in regard to such subdivisions, as indicated by the cases cited, is not equally applicable to the taking of jurisdiction by this court of cases involving the validity of the creation of townships; especially when, as in the cases in regard to school districts, the Attorney-General, as the chief law officer of the State, has deemed the question to be determined of sufficient public importance to cause him to institute the action in this court solely in his official capacity. As persuasive of the propriety of our entertaining jurisdiction here, we have in contested election cases involving the titles of township officers and justices of the peace exercised the right to determine same. [Macrae v. Coles, 183 S.W. (Mo.) 578; Ramsey v. Huck,257 Mo. 333, 184 S.W. 966.]

II. To sustain the first contention, relator relies upon the rule that a county court, in a direct proceeding to question the validity of its action, being of statutory creation and of inferior jurisdiction, does not proceed according to theValid course of the common law, and that all of theOrder. jurisdictional facts necessary to authorize its action in a given case must appear in the face of the record before the court can acquire jurisdiction of the subject-matter. [State ex inf. Attorney-General v. Woods, 233 Mo. l.c. 380; State ex rel. Am. Auto. Co. v. Schramm, 196 S.W. (Mo.) l.c. 21.]

That this is a correct statement of the law there can be no reasonable grounds of controversy. While the action is brought against the officers of a township, it is in fact a proceeding to determine the legality of the creation by the county court of the township as a body corporate or such a legal entity as is recognized by our law. Instituted by the Attorney-General by an information ex officio, it constitutes a direct attack and must be so considered. [State ex inf. Attorney-General v. Colbert, 273 Mo. l.c. 209, and cases; State ex inf. Attorney-General v. Woods,233 Mo. 357.]

It is to the language of the order above set forth to which we will look, therefore, to determine whether it is sufficient to disclose the jurisdiction of the county court.

In the determination of this question it is not required that the exact language of the statute or grant of power be employed in the order; but it will be sufficient if words of such definitive meaning be used as to convey the information that the court was acting within the purview of its powers. The question is: Did the order contain every essential requirement of the statute? If so, it is sufficient. [Hadley v. Russell,197 Mo. 633.] Any other conclusion would result in a "sticking in the bark," so to speak, or a literal reliance upon the letter rather than the evident purpose and meaning of the words employed. Especially should this well recognized rule of interpretation as to a resort to the context rather than the letter be made when, as here, jurisdiction of the subject-matter of the submission of the adoption of township organization is expressly vested in the county court. [Sec. 13165, R.S. 1919; Rousey v. Wood,63 Mo. App. 460; Fanning v. Krapfe, 68 Iowa 244; Adams v. Saratoga,10 N.Y. 332; Ferguson v. Crawford, 70 N.Y. 253.]

As we understand relator's contention, jurisdiction of the subject-matter as conferred by law is not questioned, but the sufficiency of the order of the court in the exercise of that jurisdiction. Is it, therefore, by its terms sufficient?

If it be found that this requisite is present, then this contention must be ruled adversely to the relator.

The part of the order complained of reads as follows: "The petition for township organization examined and the same found to contain over one hundred names of the voters of Wright County" etc.

A petition in the most general acceptation of the word means a formal request, written or printed, and signed by one or many, to be submitted to a person in authority, or to an administrative, a judicial, or a legislative body for the bestowal of some benefit or privilege, the concession or restoration of aPetition. right, the redress of a grievance, the establishment of a status or the exercise of any power within the purview of the person or body to which it is submitted. In law its meaning is in nowise different in that it is a formal application in writing made by the signers thereto to a court requesting judicial action concerning some matters therein set forth. The use of the word petition, therefore, means such an application or request as is contemplated by these definitions, and it cannot under any reasonable interpretation be otherwise understood by anyone familiar with the use of ordinary English words. [State v. Tullock, 108 Mo. App. l.c. 34; Lawrey v. Sterling, 41 Ore. l.c. 525; 30 Cyc. p. 1534 and note 99.] Being a petition, it must likewise be understood that it was signed, and that it had been signed as required by the requisite number to entitle it to consideration is sufficiently declared to manifest the regularity of the court's action in the declaration therein that it was "found to contain the names of more than one hundred voters." In what possible manner, in view of the nature of the instrument submitted, could it be said or understood to contain these names except as signers thereto? Furthermore, the word "voters" rather than "legal voters" as used in the order cannot form the basis of serious controversy as to the failureVoters. of the record to show the court's jurisdiction. It is true the statute (Sec. 13165, R.S. 1919) predicates the right of the county court to submit the question of township organization "on the petition of one hundred legal voters," but a voter must be a legal voter or he is not entitled to be so classified. A voter is one who has the qualifications entitling him to vote. [In re Denny, 156 Ind. l.c. 108, 51 L.R.A. 722; Pace v. Raleigh, 140 N.C. 65; Mills v. Hallgren, 146 Iowa 215; Greenough v. Tiverton, 30 R.I. 212, 136 Am. St. 953.] As we have stated what the rule means is that the court's orders or judgments must show a reasonable compliance with the grant of its power, its order, therefore, showing that the petition "was found to contain the names of over one hundred voters" leaves no room for any other conclusion than that they were legal voters, and that they signed the petition.

The import of the order is to be measured by the meaning of its words correctly used and interpreted as declaratory of the statute or grant of its power conferring the jurisdiction, and not to redundant words which may be incorrectly employed in such statute.

From whatever coign of vantage the order may be viewed it is not lacking in any of the essentials which go to sustain the validity of the court's action.

III. The second contention is as to the manner of the submission of the question of the adoption or rejection of township organization to the voters of the county.

The statute enacted with special reference to this subject and which has been in force since its enactment in 1879 (Laws 1879, p. 218), provides, among other things, that "the county court, on petition of one hundred legal voters of said county, shall cause to be submitted to the voters of the county the question of township organization under this article, by the ballot, to be written or printed, `for township organization,' or `against township organization,' to be canvassed and returned in like manner as votes for state and county officers." [Sec. 13165, R.S. 1919.] It was under this statute that the question of township organization was submitted and that the officers sought to be ousted were elected.

It is not contended, however, that there was a failure to comply with this section, but that a compliance therewith was unauthorized in that the question should have been submitted under a provision of what is now Section 4944, Revised Statutes 1919, enacted in 1909 (Laws 1909, p. 492), subsequently amended, but not in regard to the provision here under consideration. This section is embodied in and, so far as all of its material features are concerned, constitutes the statute regulating the manner in which constitutional amendments or the adoption of a new constitution is required to be submitted. Inserted in this section, and upon which relator relies to sustain his contention, is the following provision: "Every other proposition to besubmitted at the general election shall be proposed and submittedon the `constitutional ballot,' as herein provided, if anyproposed constitutional amendments are submitted at such electionor not."

While not so expressly stated, the operative effect of this provision, according to relator's contention, must in its final analysis rest upon the rule of construction that Section 4944, having been enacted subsequently to Section 13165, repeals the latter and therefore constitutes the mode of procedure to be observed by county courts in the submission of township organization to the voters.

In the absence of any words in the enactment of Section 4944 declaratory of a legislative purpose to repeal all former acts prescribing the manner in which propositions other than constitutional amendments are to be submitted to the people, the effect, if any, of the adoption of said section upon Section 13165 must be by implication. It being necessary that there be present in the later act such declaratory words or some other equally cogent evidence of a purpose on the part of the Legislature to repeal the earlier section in the adoption of the later. Cases illustrative of the rule requiring such words or the presence of such an intention are found in the interpretation of acts prescribing a form of ballot in a particular case in an election for the organization of a village, the establishment of a high school district or the issuance of bonds of a county; in each of which cases it was held that the acts especially applicable thereto were not repealed by subsequent general laws which prescribed a form of ballot other than that required by the particular statute. [People v. Marquiss, 192 Ill. 377; Rankin v. Cowden,66 Ill. App. 137; Tinkel v. Griffin, 26 Mont. 426; Matter of Taylor,3 A.D. 244, 38 N.Y.S. 348; People v. Utah Comsrs., 7 Utah, 279.]

It may not be inappropriate in the removal of any other question as to the validity of Section 13165 to say that while the statute of which it is a part has reference only to the adoption of township organization, it is not obnoxious to the constitutional provision against special legislation in that it is general in its nature in having reference to the creation of township organizations as a class.

Aside from what has been said as to the absence of any declaratory words or other expressed purpose to repeal the particular statute of which Section 13165 is a part by the enactment of the provision in question incorporated in Section 4944, the matter still presenting itself for determination is as to which of these acts prescribes the course of procedure to be pursued by the county court.

That the two statutes are in conflict, it is evident. We have said, not once, but a number of times, that where there are two acts and the provisions of one have special application to a particular subject and the other is general in itsException. terms and if standing alone would include the sameStatutory matter and thus conflict with the special act, then the latter must be construed as excepted out of the provisions of the general act, and hence not affected by the enactment of the latter. This, of course, on the assumption that the general act is in other respects valid and would, but for the exception, suffice to prescribe thereafter the county court's course of procedure. [Hurlburt v. Bush, 284 Mo. 397; Stat ex rel. Jones v. Chariton Dr. Dist., 252 Mo. l.c. 353; State ex inf. Major v. Amick, 247 Mo. l.c. 292.]

The manner, here attempted to be pursued, of amending statutes especially applicable to particular subjects, of which we have many in the body of our law, aside from the question of the validity of the one here under consideration, which weOmnibus will discuss later, should not receive judicialAmendment sanction: first, because as we have shown it violates well recognized canons of construction; and, second, because it can only result in confusion or misunderstanding as to the application of the amendment until it has been judicially construed or supplemented by further legislation.

Aside, however, from the consideration of any other phase of this contention of the relator, the validity of the provision in question is of prime importance. This provision, as now found in Section 4944, Revised Statutes 1919, although appearing in the same section under different numerals in formerDefective revisions, is, so far as its validity is concerned, toTitle. be measured as found in the Laws of 1919, page 325, which act repealed what was then Section 5971, and reenacted the same in the identical language now found in Section 4944. The title to the Act of 1919 is as follows: "An Act to Repeal Sections 5970 and 5971 of Article 7 of Chapter 43, Revised Statutes 1909, relating to constitutional amendments, and to enact two new sections in lieu thereof to be numbered Sections 5970 and 5971 relating to constitutional amendments, providing for official ballot titles to all proposed constitutional amendments and the manner and form of printing same upon the official constitutional ballots."

It is apparent from even a casual reading of this title that while it is sufficiently definite and comprehensive to indicate to the reader that its object and purpose relates to constitutional amendments, there is no implication, much less an expression, that it has reference to any other matters. However, we find, as we have said, hidden away in the body of this section the provision under review and upon which the relator rests his contention. To accentuate the sphinx-like silence of the title as to the presence of the provision therein, we reprint the provision with the sentences preceding and following it to demonstrate that although it may have been bidden by the Legislature, it is nevertheless under the Constitution and the rules of interpretation an unwelcome guest to the otherwise harmonious context of Section 5971, for example: "The constitutional ballot shall not be less than four inches wide and ten inches long, of the same kind of paper, color and of equal size. Every other proposition to be submitted at the general election shall be proposed and submitted on the `constitutional ballot,' as herein provided, if any proposed constitutional amendments are submitted at such election or not. The clerk of the county court of each county shall provide for each district in his county, and the election commissioners for each election district in their city, a separate ballot box for the deposit and reception of the constitutional ballots."

We have so frequently construed that portion of our Constitution (Sec. 28, Art. IV) which provides that no bill, except as therein provided, shall contain more than one subject, which shall be clearly expressed in its title, that in view of the inescapable conclusion flowing from the reading of the title and the provision of the act under review, a discussion of same would seem to be unnecessary. It may, therefore, be sufficient to say that the purpose to be subserved by the Constitution in regard to the title of an act is that by its terms it must be such as to serve as a clear and comprehensive indicator of the purpose of the act. While it may be so general as to omit matters germane to the principal features of the statute, if it sufficiently indicates the substantial purpose of the law, it will not be violative of the Constitution. [State v. Sloan,258 Mo. 305.] While, therefore, the title in this case is sufficiently comprehensive to indicate that the act is in regard to the submission of constitutional amendments, there is an utter absence of any reference to the submission of any other proposition such as is contemplated by the provision. So far, therefore, as this act attempts to regulate the submission of other propositions than constitutional amendments, it must be held to be invalid. We discussed this question, with the citation of apposite authorities in the case of State v. Sloan (supra) and in the later cases of State v. Crites, 277 Mo. 194, and Vice v. Kirksville, 280 Mo. 348, with a like conclusion to that reached in the present case. There is neither reason nor authority for departing therefrom.

IV. That portion of Section 4944, supra, which provides that "ballots not printed or prepared as herein required shall not be counted," in view of our ruling that elections for the submission of township organization must be under the statuteApplication. relating to that subject, has no application except as to ballots submitting constitutional amendments.

V. The provision in Section 4859, Revised Statutes 1919, that ballots shall contain only the names of the candidates nominated by the party which the ticket represents will not render invalid the printing of the proposition thereon of the submission of township organization, if otherwise in conformity withIrregular the statutory requirements. Although the courseBallots. pursued in the instant case was irregular, to render the same fatal the statute must so declare. As was said in Nance v. Kearbey, 251 Mo. 374, where an irregularity is not declared by statute to be fatal, the courts will be slow to so construe it as to disfranchise voters because of the errors of officials. As was further said in effect by LAMM, C.J., in that case, to permit a great mass of voters to be disfranchised because of an irregularity in the printing of the ballots, whether the result of design or inadvertence, would be to turn the law into an indefensible trap, and greatly multiply the powers of election officials to control the result of an election. It was further held in that case that a challenge of the tickets for irregularity comes too late after the election in which there was no fraud of any sort; that a timely challenge is necessary to change the result of an honest count.

In the early case of Applegate v. Eagan, 74 Mo. 258, this court held that where ballots cast at a general election for state, county and township officers contained, in addition to the names of the candidates and the offices to be filled, a clause for and against township organization and a clause against restraining swine from running at large, with a caption to these clauses in the words "erase the clause you do not favor," did not invalidate the ballot either as to township organization or the restraining of swine or as to the candidates voted for. A like rule was announced as to clauses on ballots other than the names of the candidates in State ex rel. Broadhead v. Berg, 76 Mo. 136, and in Gumm v. Hubbard, 97 Mo. 318, in which it is held that where the order of the county court submitting a proposition to the voters is otherwise valid the submission of the same on the general ballot will not render it invalid.

If further reasoning be required to sustain the conclusion as to the directory nature of the inhibition concerning what shall appear on the ballot as prescribed in Section 4859, supra, the same may be determined by the following tests: If it appears that no substantial right depends upon a compliance withDirectory the statutory requirement and no injury can resultStatute. from ignoring it, and the other purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same result obtained, then the statute will be regarded as directory; but if not so, it will be mandatory. [State ex rel. Hamilton v. Railroad, 113 Mo. l.c. 308; City of St. Louis v. DeNoue, 44 Mo. l.c. 140; Bitumin. Pav. Co. v. McManus, 144 Mo. App. 593.] Subjected to this test, there seems to be no escape from the conclusion that the statute is directory, and if so, then the printing of the question of township organization on the ticket of the candidates for office will not be held to render the result of the election on the proposition submitted invalid.

West v. Ross, 53 Mo. l.c. 354, announces nothing contrary to the rule stated as to the classification of statutes. That case is to be clearly distinguished from the one at bar in that the statute there under consideration not only directed what was to be done, but declared the consequence that would follow its disobedience; this authorizes the classification of the statute as mandatory. In the instant case the statute nowhere declares what shall follow its violation. It is, as we have shown, therefore clearly directory. [Art. I, Chap. 121, R.S. 1919.]

Finding no substantial reason for the issuance of the writ of ouster prayed for herein, the same is denied. All concur; JamesT. Blair, C.J., in paragraphs 1 and 2 and the result; Woodson,J., absent.