Opinion
February 7, 1939.
1. ST. LOUIS: City Treasurer. On the adoption of the scheme for the separation of the city of St. Louis and the county, the city became both a political subdivision of the State and a city in its corporate capacity. [Mo. Const., Sec. 23, Art. IX.]
In an action in quo warranto to determine respondent's title to the office of city treasurer, appointed by the mayor, the question for determination is whether the General Assembly has provided for the election of such treasurer and it was not necessary to consider questions of conflict between the city as a political subdivision and the city in its corporate capacity.
2. STATUTES: Construction: City Treasurer. Under Section 655, Revised Statutes 1929, Clause 19, providing that whenever the word "county" is used in any law, general in its character, it shall be construed to include the city of St. Louis and under Section 14796, Revised Statutes 1929, providing that all acts or parts of acts which provide for the performance of any duty or trust by any county court shall include the municipal assembly, the mayor and comptroller of the city of St. Louis, the word "county" as used in Section 12130, Revised Statutes 1929, and 12130c, Laws 1937, includes St. Louis city and is not inconsistent with the evident intent of said Sections 12130 and 12130c to construe the word "county" to include the city of St. Louis.
3. ST. LOUIS COUNTY AND CITY. The constitutional provision authorizing a separation of the county and city of St. Louis, providing that the charter of the city supersedes all special laws relating to St. Louis County inconsistent with the scheme of separation, a provision of the charter for the appointment of a treasurer by the mayor did not become a special law applicable to the city so that the word "county" in Sections 12130 and 12130c should be construed to include the city.
In Clause 19 of Section 655, Revised Statutes 1929, the word "special" is not used; the word "some laws specially applicable to such city" do not mean a "special law" applicable to such city as distinguished from a general law applicable to the State, but means some law specially applicable to the city in its corporate capacity.
The section of the ordinance of the city of St. Louis purporting to authorize the mayor to appoint a treasurer of said city is not a law applicable to such city in its corporate capacity. The word "county" as used in Sections 12130 and 12130c, Revised Statutes 1929, includes the city of St. Louis, and the mayor was without authority to appoint a treasurer of said city.
OUSTER ORDERED.
Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for relator.
(1) The charter of the city of St. Louis must be in harmony with and subject to the Constitution and laws of Missouri. Art. IX, Secs. 16, 23, 25, Mo. Const.; Ewing v. Hoblitzelle, 85 Mo. 77; State ex. rel. Goodnow v. Police Commrs., 184 Mo. 109. (2) General laws apply to the city of St. Louis and counties alike. Sec. 655, R.S. 1929; (3) The county treasurer shall be elected at the general November election. Laws 1911, p. 163; Sec. 9528, R.S. 1919; Laws 1937, p. 426, sec. 12130c. (4) The treasurer of the city of St. Louis is a county or State officer. State ex rel. McAllister v. Dunn, 277 Mo. 41; State ex inf. Barker v. Koeln, 192 S.W. 751; Commonwealth ex rel. Hensel, Atty. Gen., v. Oellers, 21 A. 1086. (5) The construction given a statute by the administrative officers should have great weight. 59 C.J., 1037; In re Graves, 30 S.W.2d 154; 46 C.J. 1058; Chicago v. Burke, 226 Ill. 191. (6) The city treasurer of the city of St. Louis performs governmental functions. Secs. 3853, 9255, R.S. 1929. (7) The city treasurer is required to receive all public moneys for which no other provision is made. Art. IX, Sec. 20, Mo. Const.; Sec. 32, Scheme of the City of St. Louis. (8) The municipal assembly, mayor and comptroller of the city of St. Louis to perform the duties of the county court in relation to the county treasurer. Secs. 14796, 14797, R.S. 1929; Secs. 12133, 12138, Laws 1937, pp. 426, 427. (9) The vacancy in the office of city treasurer is to be filled by appointment by the Governor. Art. V, Sec. 11, Mo. Const.; Sec. 10216, R.S. 1929; State ex inf. v. Koeln, 192 S.W. 753. (10) The Legislature may alter and amend the charter of the city of St. Louis. State ex rel. Ziegenhein v. Railroad, 117 Mo. 12; State ex rel. v. Stobie, 92 S.W. 191, 194 Mo. 61.
Edgar H. Wayman and Oliver Senti for respondent.
(1) The word "county," when used in a law, does not include the city of St. Louis when such construction is inconsistent with the evident intent of such law or some law especially applicable to the city of St. Louis. Sec. 655, R.S. 1929. (2) When the scheme and charter were adopted, the scheme became the organic law of the county and city, and the charter became the organic law of the city and superseded and took the place of the charter then in force, and all special laws relating to St. Louis County inconsistent with the scheme. Mo. Const., Sec. 20, Art. IX. (a) When the charter was revised in 1914, it superseded the charter adopted in 1876 and all special laws inconsistent therewith. Mo. Const., Sec. 22, Art. IX; State ex rel. McDaniel v. Schramm, 272 Mo. 541, 199 S.W. 194. (b) The enactment of general laws did not repeal special laws applicable to St. Louis County, although inconsistent therewith. State ex rel. Attorney General v. Fiala, 47 Mo. 310. (c) The office of treasurer of the city of St. Louis was provided for and made elective by the charter adopted when the county and city separated. Charter of St. Louis, Sec. 1, Art. IV. (d) Section 1 of Article IV of the Charter of 1876 was superseded by a provision of the Revised Charter of 1914 making the office appointive. Charter of St. Louis, Sec. 1, Art. VIII.
(e) Provisions of the Charter of 1876, which superseded special laws applicable to St. Louis County, although different from the general law, do not violate the Constitution of 1875. State ex rel. Attorney General v. Watson, 71 Mo. 472. (f) Provisions of the Revised Charter of 1914, which supersede the Charter of 1876 and special laws applicable to St. Louis, although different from the general law, do not violate the Constitution of 1875. Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808. (g) The Session Acts containing every general law providing for the election of county treasurers since the separation of the county and city of St. Louis show that the act was an amendment of the existing law or that it was enacted in lieu of the existing law. (h) A subsequent act of the Legislature repealing and re-enacting at the same time a pre-existing statute is but a continuation of the latter and dates back from the passage of the first statute and not the latter, and this is true even though the new section contains modifications of the repealed sections. State v. Ward, 322 Mo. 658, 40 S.W.2d 1074; State ex rel. v. Fiala, 47 Mo. 319. (3) The decision of this court in State ex rel. v. Dunn, supra, decided only one point, to-wit, that the person holding the office of deputy collector, when elected to that of treasurer, was disqualified. In State ex inf. v. Koeln, supra, the general law relating to the collector contained reference to the collector of the city of St. Louis and therein differed from the general law relating to county treasurer.
Original action in quo warranto to determine the question of respondent's title to the office of treasurer of the city of St. Louis. For many years the treasurer of said city has been elected at the general election in November. At said election in 1936 Henry C. Menne was elected treasurer of said city. On his death, and on September 12, 1938, respondent was appointed by the mayor to fill the vacancy. The appointment was made under Section 1, Article VIII of the city charter, 1914, which follows:
"The Mayor shall appoint the following officers at his convenience, to hold for the term for which he was elected and until their successors qualify: assessor, collector, treasurer, supply commissioner, registrar, city counselor, city marshal, city court judges, clerk of city courts, president board of public service, director of public utilities, director of streets and sewers, director of public welfare, and director of public safety."
On the adoption of the "scheme" for the separation of the city and the county, the city became both a political subdivision of the State and a city in its corporate capacity. For instance, it is provided that "the city . . . shall . . . collect the State revenue and perform all other functions in relation to the State, in the same manner, as if it were a county as in this Constitution defined." [Sec. 23, Art. IX, Const.] Respondent states the case at bar as follows:
"We do not wish to be understood as contending that the Charter of St. Louis is not subject to the Constitution and laws of the State. Section 23 of Article IX, which is applicable to the City of St. Louis, provides that its charter and amendments shall (with certain exceptions which are not material here) always be in harmony with and subject to the Constitution and laws of the State. It also provided by Section 25 of Article IX that, notwithstanding the provisions of that article, the General Assembly shall have the same power over the City and County of St. Louis as it has over other cities and counties of the State.
"The question to be determined in this case is not whether it is within the power of the General Assembly to provide for the election of a Treasurer of the City of St. Louis, but whether or not it has done so."
In view of the admissions in said statement, it will not be necessary to consider the cases ruling questions of conflict between the city as a political subdivision and the city in its corporate capacity.
The statutes providing for the election of a county treasurer follow:
"On the Tuesday after the first Monday in November, 1912, and every four years thereafter, there shall be elected by the qualified voters of the several counties in this state a county treasurer, who shall be commissioned by the county court of his county, and who shall enter upon the discharge of the duties of his office on the first day of January next succeeding his election, and shall hold his office for a term of four years, and until his successor is elected and qualified, unless sooner removed from office: Provided, that in counties having adopted, or that may hereafter adopt township organization, the term of office of said treasurer shall be extended to the first day of April next after the election of his successor." [Sec. 12130, Art. VIII, R.S. 1929.]
In 1933 (Laws 1933, pp. 338 and 357) Section 12130 and other sections of Article VIII, Revised Statutes 1929, were repealed and new sections enacted abolishing the office of county treasurer in certain counties. In 1937 (Laws 1937, pp. 424, 426) the Act of 1933 was repealed and said office re-established in the several counties of the State.
The Act of 1937, Section 12130c provided that "on the Tuesday after the first Monday in November, 1940, and every four (4) years thereafter, there shall be elected by the qualified voters in all counties of this State, now or hereafter having a population of 40,000 or more inhabitants according to the last Decennial United States Census (except in counties having 75,000 and not more than 90,000 inhabitants), and in all counties of less than 40,000 inhabitants if under township organization, a county treasurer, who shall be commissioned by the County Court of his County, and who shall enter upon the discharge of the duties of his office on the first day of January next succeeding his election, and shall hold his office for a term of four years, and until his successor is elected and qualified, unless sooner removed from office: Provided, that in counties having adopted or that shall hereafter adopt township organization, the term of office of said treasurer shall be extended to the first day of April next after the election of his successor. Provided further, that the present county treasurers shall remain in office until their successors are elected or appointed and qualified, unless sooner removed from office."
Relator contends that under Clause 19, Section 655, Revised Statutes 1929, and under Section 14796, Revised Statutes 1929, the word "county," as used in Section 12130, Revised Statutes 1929, and Section 12130c (Laws 1937, p. 426), includes the city of St. Louis, and for that reason the mayor of said city is without authority to fill the vacancy caused by the death of Menne. The said clause of Section 655 follows:
"Whenever the word 'county' is used in any law, general in its character to the whole state, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city." (Italics ours.)
And said Section 14796 follows:
"All acts and parts of acts which provide for the performance of any duty or trust by any county court in this state, shall also include the municipal assembly, and the mayor and comptroller of the city of St. Louis."
We think that under said Clause 19 and said Section 14796 the word "county" as used in Section 12130, Revised Statutes 1929, and Section 12130c (Laws 1937, p. 426), includes the city of St. Louis. In other words, it does not appear to be "inconsistent with the evident intent of" said Sections 12130 and 12130c to construe the word "county" to include the city of St. Louis.
Even so, respondent directs attention to the constitutional provision authorizing a separation of the county and city. It is therein provided that the charter of the city supersedes all special laws relating to St. Louis County inconsistent with the scheme of separation. At the time of the separation there was a special law (permissible at that time) providing for the selection of a treasurer of St. Louis County. From this respondent argues that the charter provision providing for the appointment of a treasurer by the mayor superseded said special law with reference to St. Louis County and became a "special law applicable to the city." And from this he argues that to construe the word "county" in Sections 12130 and 12130c to include the city would be inconsistent with said "special law applicable to the city."
In making said argument respondent misquotes Clause 19 of Section 655, Revised Statutes 1929. The word "special" is not used in said clause. It is therein provided that the word "county" shall be construed to include the city of St. Louis, unless such construction be inconsistent with "some law specially applicable to such city." The words "some law specially applicable to such city" do not mean a "special law applicable to such city," as distinguished from a general law applicable to the State. The said words mean "some law specially applicable to such city" in its corporate capacity.
The section of the ordinance purporting to authorize the mayor to appoint a treasurer for the city is not a law specially applicable to such city in its corporate capacity. The treasurer of the city performs official duties relating to the city as a political subdivision and also performs official duties relating to the city in its corporate capacity.
The word "county," as used in Sections 12130 and 12130c, includes the city of St. Louis, and the mayor was without authority to appoint respondent to the office of treasurer of the city of St. Louis, and he should be ousted from said office. It is so ordered. All concur, except Douglas, J., who dissents.