Opinion
No. 39125.
June 5, 1944.
1. MUNICIPAL CORPORATIONS: Officers: Death of St. Louis Mayor: Vice-President of Board of Aldermen Becomes President. Upon the death of the mayor of St. Louis the president of the board of aldermen became mayor, and the vice-president of the board became president.
2. MUNICIPAL CORPORATIONS: Officers: Statutes: St. Louis Charter: Conflicting Clauses: Special Clause for Filling Vacancy Governs: Vice-President of Board of Aldermen Temporarily Holds Office of President. There being a conflict between two clauses of the charter of St. Louis as to filling vacancies, the general provision for filling vacancies at the next election must give way to the special provision upon the death of the mayor that the president of the board of aldermen shall temporarily become mayor and the vice-president shall temporarily hold the office of president. The provision for the vice-president to temporarily hold the office of president is reasonable.
3. MUNICIPAL CORPORATIONS: Officers: St. Louis Charter: Death of Mayor: Rule of Incompatibility of Offices Not Applicable. The rule pertaining to holding two incompatible offices at the same time does not apply to the provision of the charter of St. Louis that upon the death of the mayor the president of the board of aldermen shall temporarily become mayor.
4. ELECTIONS: Municipal Corporations: Mandamus: No Vacancy in Office: Declaration of Candidacy Properly Refused. Since there is no vacancy in the office of the president of the board of aldermen of St. Louis, the city registrar properly refused to certify that such a vacancy exists and the board of election commissioners properly refused to accept relator's declaration of candidacy.
WRIT DENIED.
William R. Schneider for relator.
(1) The Supreme Court of Missouri has taken jurisdiction and issued its writ of mandamus for precisely the purpose the issuance of the writ is asked in the case at bar. State ex rel. Huse v. Hayden, 349 Mo. 982, 162 S.W.2d 946. (2) Under the facts the relator's constitutional rights have been violated. Constitution of Missouri, Art. II, Sec. 9. (3) There are two distinct types of constitutional, statutory and charter provisions relative to the succession of the incumbent of a lower office to the duties and emoluments of a higher office in the event of vacancy in the latter. The type whereby the duties and emoluments of the higher office devolve additionally upon the incumbent of the lower office, in which event no vacancy occurs in the latter. Futrell v. Oldham, 107 Ark. 385, 155 S.W. 502; People ex rel. Lynch v. Budd, 114 Cal. 168, 45 P. 1060, 34 L.R.A. 46; Clifford v. Hiller, 42 A. 155; State v. Sadler, 23 Nev. 356 47 P. 450; State ex rel. Martin v. Ekern, 280 N.W. 393. The type wherein a state constitutional prohibition exists against holding two offices, as in Missouri, and where qualifying for a second or higher office necessarily operates as a vacation of the other or lower office, "leaving no shadow of title in its former possessor," such is the case at bar. Art. IX, Sec. 18, Mo. Constitution; State ex rel. Walker v. Buss, 135 Mo. 325, 36 S.W. 636; State ex rel. Biggs v. Corley, 172 A. 415; Bishop v. State, 149 Ind. 223, 48 N.E. 1038, 39 L.R.A. 278, 63 Am. St. Rep. 270; State v. Mason, 61 Ohio St. 513, 56 N.E. 468; Shell v. Cousins, 77 Va. 328. (4) What constitutes a vacancy and how it is filled. State v. Blackmore, 104 Mo. 340, 15 S.W. 960; People v. Osborn, 7 Colo. 605, 4 P. 1070; Charter, City of St. Louis, Art. IV, Sec. 5, Art. VII, Sec. 5. (5) Office of mayor and office of president of board of aldermen are incompatible. 86 Amed. St. Rep. 580-1-4; Atty. Gen. ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450; People ex rel. Bagshaw v. Thompson, 130 P.2d 237; Perkins v. Manning, 122 P.2d 857. (6) Acceptance of second office incompatible with the first vacates the first. 100 A.L.R. 1164, note citing cases from most American jurisdictions. (7) The public has a right to know which office is held and which surrendered. Stubbs v. Lee, 64 Mo. 195; State ex rel. Kingsbury v. Brinkerhof, 66 Tex. 45, 17 S.W. 109; 86 Am. St. Rep. 579. (8) It is against public policy for one to hold or to hold an interest in two offices at the same time. State ex rel. Walker v. Buss, 135 Mo. 324, 36 S.W. 636; State ex rel. Owens v. Draper, 45 Mo. 355; Dust v. Oakman, 126 Mich. 717, 86 N.W. 151; Dickson v. The People ex rel. Brown, 17 Ill. 191; Bishop v. State ex rel. Griner, 149 Ind. 223, 48 N.E. 1038. (9) The foregoing principles should not be confused with cases involving absence from office on war service under the Selective Service Act. State ex inf. McKittrick v. Wilson, 166 S.W.2d 499; State ex rel. McGaughey v. Grayston, 399 Mo. 701, 163 S.W.2d 335; Baker v. Dixon, 295 Ky. 279, 174 S.W.2d 410; State ex rel. Thomas v. Wysong, 24 S.E.2d 463; Kebylarz v. Mercer, 130 N.J.L. 44, 31 A.2d 208; Contra: Perkins v. Manning, 122 P.2d 857 ; Frazier v. Elmore, 173 S.W.2d 563; Cramer v. Sheppard, 167 S.W.2d 147.
Joseph F. Holland, City Counselor, H.A. Hamilton, George L. Stemmler and Charles J. Dolan, Associate City Counselors, for respondents.
(1) On the first Tuesday of April, 1943, the voters of the City of St. Louis elected a president of the board of aldermen to serve for a term of four years, the term ending on the first Tuesday in April, 1947. Charter, City of St. Louis, Art. II, Secs. 1, 3. (2) No authority is conferred upon the election commissioners of the City of St. Louis either by the Statutes of Missouri or by the Charter of the City of St. Louis to conduct an election for an office before the expiration of the term to which the incumbent de jure has been elected. In the absence of statutory or charter provision therefor, no election can be held. State ex rel. Lamey v. Mitchell, 34 P.2d 369; State ex rel. Murphy v. McBride, 70 P. 25; State ex rel. Lynch v. Budd, 34 L.R.A. 46. (3) The president of the board of aldermen did not forfeit his office when he became mayor of the City of St. Louis. Re Crump, 135 P. 428, 47 L.R.A. (N.S.) 1036. (4) The charter provides that the president of the board of aldermen shall forfeit his office for the causes provided with regard to the mayor. These causes are crime or misdemeanor in office, grave misconduct showing unfitness for public duty and permanent disability. These are the only grounds of forfeiture of said office mentioned in the charter. Charter, City of St. Louis, Art. IV, Sec. 3, Art. VII, Sec. 4. (5) The president of the board of aldermen becomes mayor, on the occurrence of a vacancy, by virtue of his official capacity as president of the board of aldermen. If he had ceased to be president of the board of aldermen he could not have become mayor. Charter, City of St. Louis, Art. VII, Sec. 5. (6) Relator is in error when he states that the president of the Board of Aldermen "accepted" the office of mayor. To serve as mayor on the occurrence of a vacancy pending an election is one of the charter duties of the president of the board of aldermen. Since it is one of the duties attached to his office he cannot be said to have permanently vacated his office by becoming mayor. Charter, City of St. Louis, Art. VII, Sec. 5. (7) There is no conflict between Article VII, Section 5 of the charter of the City of St. Louis and Article IX, Section 18 of the Constitution of Missouri. When the president of the board of aldermen becomes mayor he does not "fill" two municipal offices at the same time because the charter expressly provides that there shall be a temporary vacancy in the office of president of the board of aldermen during the time that the president of the board of aldermen is serving as mayor. State ex rel. Murphy v. McBride, 70 P. 25; Grimes v. Holmes, 207 N.C. 293. (8) The words "temporary vacancy" as used in Article VII, Section 5 of the Charter of the City of St. Louis, mean a vacancy that shall exist only during the time while the president of the board of aldermen is "so holding the office of mayor." As this vacancy is terminated at the first general city or state election, at which a successor to the mayor may be elected, that is, November 7, 1944, there is no vacancy in the office of the president of the board of aldermen of the City of St. Louis, Missouri, to be filled at the general election on November 7, 1944. (9) Article IV, Sec. 5, of the Charter of the City of St. Louis, providing that any vacancy in the board shall be filled at the next general city or state election held fifty days or more after such vacancy occurs has no application to a temporary vacancy. (10) The various sections of the charter should be read in conjunction and harmonized whenever possible. There is no conflict between Article IV, Sec. 5, providing for the filling of vacancies by election, and Article VII, Sec. 5, providing that a temporary vacancy in the office of the board of aldermen shall last only as long as the president is so holding the office of mayor. (11) It was clearly the intent of the framers of the charter that the president of the board of aldermen should resume his duties as president of the board and serve out the remainder of the term for which he was elected, after the vacancy in the office of mayor had been filled by election. In the absence of conflict with the Constitution and Laws of the State of Missouri, the intent of the Charter should prevail. Nordberg v. Montgomery, 173 S.W.2d 387; State v. Carolene Products Co., 144 S.W.2d 153.
J. Edward Gragg brings this original proceeding in mandamus to compel the City Register of St. Louis to certify to the Board of Election Commissioners of St. Louis that a vacancy exists in the office of President of the Board of Aldermen and to compel the Board of Election Commissioners to accept his declaration of candidacy for that office and to print his name on the ballot for the primary election to be held on August 1, 1944.
If the office of president of the board of aldermen is vacant respondents should have accepted Gragg's declaration of candidacy. If the office is not vacant its refusal to do so is proper.
William Dee Becker, the Mayor of St. Louis, died in an airplane accident on August 1, 1943. Upon that event Aloys P. Kaufmann, the President of the Board of Aldermen became Mayor. Edgar S. Nicolai, Vice President of the Board stepped up to the presidency. See our opinion in State ex rel. Nicolai v. Nolte et al., 352 Mo. 1069, 180 S.W.2d 740, handed down with this case. These changes were pursuant to Article VII, Section 5 of the St. Louis Charter which provides: "Whenever a vacancy occurs in the office of mayor, the president of the board of aldermen shall become mayor, and shall hold such office until a successor is elected and qualifies. Such election, if for an unexpired term, shall be at the first general city or state election held fifty days or more after such vacancy occurs. While so holding the office of mayor a temporary vacancy shall exist in the office of the president of the board of aldermen. The vice-president of the board of aldermen shall hold the office of president of said board during any vacancy therein with the right of succession to the office of mayor."
Gragg contends that under such charter provision the office of president became vacant and is required to be filled at the coming election under Article IV of the charter entitled Board of Aldermen which provides in Section 5: "Any vacancy in said board shall be filled for the unexpired term at the next general city or state election held fifty days or more after such vacancy occurs; provided, that whenever three or more vacancies exist in said board such vacancies shall be filled at a special election; but no such special election shall be held within three months prior to any general city or state election."
The two charter provisions are in apparent conflict. In construing the charter we must give effect to the intent of the framers. Each provision should be construed so as to harmonize with the others. But when general and special provisions are in conflict the special provision will control as far as its scope demands, leaving the general provision to control in cases where the special provision does not apply. Consequently the provision of the charter referring generally to filling any vacancy in the board must give way to the more particular provision which provides that the vice president of the board shall fill the office of president during a vacancy in that office in so far as the latter provision controls.
There is an unusual circumstance in this case in that the president vacates his office only temporarily while serving as mayor. This fact controls the decision of this case. Therefore, we need only rule for the purpose of this case that the general provision for filling vacancies in the board of aldermen by election does not apply to a temporary vacancy in the office of president. Such a vacancy is filled by the vice president by operation of the special provision of the charter.
The intention of the framers is apparent that the president might resume his former office after the office of mayor had been filled by election. Otherwise, no meaning can be ascribed to the word temporary because, as the parties point out, all vacancies in public office are temporary. [732] The law invariably provides for filling them as quickly as practical. The charter could not have permitted the president to retain his office while filling a vacancy in the office of mayor because the constitution forbids a person to fill two municipal offices at the same time. Art. IX, sec. 18. Otherwise the charter could have made the familiar provisions found in our State and National Constitutions for the next in order to assume the duties of the chief executive when that office becomes vacant because of death or disability.
The construction placed upon the charter provision holding that the president only temporarily vacates his office is a reasonable one. The mayor and the president are elected separately at two-year intervals each for a term of four years. It could happen that the president might serve as mayor only for a very short period. The scheme of the charter is to fill the office of mayor by election as quickly as practical. If by serving as mayor only for a short period the president would permanently vacate his own office, he might have to give up more than half of his term in some cases. This result would be unreasonable especially in such a case as this where the president's duty to fill the mayor's office is not left to his choice, but is a duty imposed by law.
Relator argues that the offices of mayor and president are incompatible. Certainly the constitutional prohibition against filling two municipal offices makes them so. But the settled rule of the common law that a public officer cannot hold two incompatible offices at the same time is not pertinent in view of the charter provision that the president vacates his own office while he serves as mayor. Nor is the rule pertinent that the acceptance of a second office, which is incompatible to an office already held, ipso facto vacates the first office because the charter itself provides for a temporary vacation only. Furthermore, the rule is based on the presumption that the acceptance of the second office indicates the exercise of a choice between the two and the consequent relinquishment of the first office. Such presumption cannot exist where the second office is imposed by law and a person is compelled to accept it.
At this time there is no vacancy in the office of president of the board of aldermen to be filled by election. The city register in refusing to certify that a vacancy exists and the board of election commissioners in refusing to accept Gragg's declaration of candidacy acted properly. Our peremptory writ of mandamus should be denied.
It is so ordered. All concur.