Opinion
April 9, 1937.
1. MANDAMUS: Judgment Before Opinion. In an original mandamus proceeding wherein relator seeks to have his name printed on the nonpartisan ballot as a candidate for membership on the board of education of St. Louis and the Supreme Court is of the opinion that relator is entitled to the relief sought, where time does not permit promulgation of a written opinion contemporaneously with the judgment, the temporary writ may be made permanent and opinion delivered later.
2. SCHOOLS: Boards of Education: Constitutional Law. Where a statute, providing qualifications for members of the board of education in cities of 500,000 population or over, provided that not more than six of the twelve members of the board shall belong to the same political party, the purpose of the provision is to obtain membership of persons who are not all of the same political views, and thus provide representation in the body of different and conflicting interests. [Secs. 9572, 9572-A, 9574, Laws 1933, pp. 390-392.]
The statute is not unconstitutional as impinging upon the constitutional guaranty (Art. II, Sec. 9, Mo. Const.) "that all elections shall be free and open."
A further provision in the statute mentioned that when a vacancy is filled either by appointment or election, the member or members so appointed or elected shall be of such political party that not more than six of said board shall belong to the same party, is not in violation of Section 9, Article XIV of the Constitution of Missouri, providing that "the appointment of all officers not otherwise directed by the Constitution shall be made in such manner as may be prescribed by law."
Nor is the statute in conflict with Section 1, Article XI of the Constitution of Missouri, providing that "the General Assembly shall establish and maintain free public schools for gratuitous instruction, etc."
The provisions of Section 9574, requiring that six of the twelve members of the board shall belong to the political party casting the highest vote at the last general election and six to the party casting the next highest vote, is unconstitutional, but eliminating that invalid portion, the statute is constitutional.
The peremptory writ was therefore providently issued.
TEMPORARY WRIT MADE PERMANENT.
George E. Duemler and Victor B. Harris for petitioner.
(1) A statute which provides that a candidate for public office must belong to one of two political parties violates Section 9, Article II of the Constitution of Missouri, providing that "all elections shall be free and open," and is, therefore, void. State ex rel. Haller v. Arnold, 277 Mo. 474, 210 S.W. 374; State ex rel. Neu v. Waechter, 332 Mo. 574, 58 S.W.2d 971; State ex rel. Frazier v. Seibel, 262 Mo. 220, 171 S.W. 69. (2) The privilege of all eligible persons to become candidates for public office is guaranteed by Section 9, Article II of the Constitution of Missouri. State ex rel. Haller v. Arnold, 277 Mo. 474, 210 S.W. 374; State ex rel. Neu v. Waechter, 332 Mo. 574, 58 S.W.2d 971. (3) A statute which provides that a candidate for public office must belong to one of two political parties disfranchises all or part of the electorate, and is, therefore, void. Sec. 2, Art. VIII, Mo. Const.; Nance v. Kearby, 251 Mo. 374, 158 S.W. 629. (4) A statute which denies a citizen of the United States the right to seek public office because he is not a member of one of two political parties is violative of Section 1, Article XIV of the Constitution of the United States, and, therefore, void. Grossjean v. Am. Press Co., Inc., 297 U.S. 233, 56 S.W. 444; Near v. Minnesota, 283 U.S. 697, 51 Sup. Ct. 625.
E.H. Wayman, Louis A. McKeown and Oliver Senti for respondents.
(1) A statute that provides certain conditions of qualifications in the officers of the school board, to-wit, that six of them shall be from one party and six from another, is proper, valid and constitutional and one which the Legislature had power to attach as the only feasible method of carrying out the legislative desire for a bipartisan school board. State ex rel. Harvey v. Wright, 251 Mo. 325; 56 C.J., pp. 280-281; State ex rel. Ing v. McSpaden, 137 Mo. 628; State ex rel. Ranney v. MacChesney, 237 Mo. 675; Sec. 1, Art. XI, Mo. Const.; Sec. 9, Art. XIV, Mo. Const. (2) The Legislature has full power to prescribe qualifications for holding office and what shall constitute the test of eligibility for holding particular offices, and where a board of officers has been created, may provide that they shall be taken in certain proportions from different political parties. Throop on Public Officers, sec. 73, pp. 82, 83; State ex rel. v. Wright, 251 Mo. 325. (3) The right to be appointed or elected to a public office is not a natural or inherent right; it is a privilege. It is not necessarily co-extensive with the right to vote, and in the absence of anything in the fundamental law guaranteeing it, may be qualified or taken away by the legislative branch of the government. 56 C.J. 936; State ex rel. Jones v. Sargent, 124 N.W. 339, 27 L.R.A. (N.S.) 719; State ex rel. Walker v. Rebenack, 135 Mo. 340.
Mandamus to compel respondents, the Board of Election Commissioners of the City of St. Louis, to print the name of relator on the official ballot as a nonpartisan candidate for election as a member of the board of education at the election to be held Tuesday, April 6, 1937. Respondents, entering their appearances, waived the issuance and service of the alternative writ, and made return. The case thus made was submitted on briefs on March 26. [1] Being of the opinion that relator was entitled to a place on the official ballot, and the time being too short to permit of the promulgation of an opinion contemporaneously with the entry of judgment awarding a peremptory writ, the court on March 31 delivered a per curiam ordering the alternative writ be made peremptory, and that an opinion follow. Such practice has the sanction of numerous cases, among which is State ex rel. v. Seibel, 262 Mo. 220. 171 S.W. 69, where, in a similar situation, Judge LAMM observed: "If fresh justice is the sweetest as Lord Bacon says it is, that per curiam filled the bill. . . . The opinion so ordered to follow, follows, thus:" And so it is in the case at bar. Before the adoption of this opinion, the immediate object of relator's petition will have been served, and his candidacy submitted to and passed upon by the electorate, and it remains for us only to state the reasoning by which the conclusion heretofore announced was reached.
The Fifty-Seventh General Assembly (Law 1933, pp. 390-392) passed an act relating to "the election, qualifications, oath, compensation and politics of members of the Board of Education" in school districts in cities of 500,000 inhabitants or over, repealing Section 9572 and Section 9574, Article 17, Chapter 57, Revised Statutes 1929, and enacting new sections in lieu thereof to be known as Sections 9572, 9572-A, and 9574. The sole issue made by the pleadings is one of law, and presents the question of the constitutional validity of so much of Section 9574 as requires six of the twelve members of the board of education to "belong to the political party who shall have cast the highest number of votes for their candidate for Governor at the last general election, and six of whom shall belong to the political party who shall have cast the second highest number of votes for their candidate for Governor at the last general election." These provisions are challenged as impinging upon the constitutional guaranty "That all elections shall be free and open." [Art. II, Sec. 9, Const. of Mo.]
Section 9572, as amended, reads as follows: "The members of such board of education shall be elected from such city at large on general ticket, such members shall be at least thirty years of age, citizens and residents of the city, and shall have been residents and citizens for at least three years immediately preceding their election. Not more than six members of such board shall belong to the same political party. When a vacancy is filled either by appointment or election, the member or members so appointed or elected shall be of such political party that not more than six of said board shall belong to the same political party at any one time."
The provisions of Section 9574, as amended, insofar as pertinent to this inquiry, read as follows: "The board of education shall be composed of twelve members, six of whom shall belong to the political party who shall have cast the highest number of votes for their candidate for Governor at the last general election and six of whom shall belong to the political party who shall have cast the second highest number of votes for their candidate for Governor at the last general election. . . . In the election of 1933 and every two years thereafter, four members of such board shall be elected at the regular municipal election, two from the political party who shall have cast the highest number of votes for their candidate for Governor at the last general election and two from the political party which shall have cast the second highest number of votes for their candidate for Governor at the last general election. . . ."
It will be observed that Section 9572, after prescribing certain qualifications as to age, citizenship and length of residence, provides "not more than six members of such board shall belong to the same political party. When a vacancy is filled either by appointment or election, the member or members so appointed or elected shall be of such political party that not more than six of said board shall belong to the same political party at any one time." The purpose of such provisions is plain. They seek to obtain membership of persons who are not all of the same political views, and thus to provide for representation in the body so elected of different and conflicting interests. The statute does not compel the election of members of any particular party, nor does it disqualify any citizen from holding such an office on account of his political beliefs, and is, therefore, unobjectionable. [19 R.C.L. 61, p. 756.] In State ex rel. v. Wright, 251 Mo. 325, 158 S.W. 823, Ann. Cas. 1915A, it was pointed out, "Such conditions as to differing political faith as a requisite qualification for a membership on one of our many boards is almost the statutory rule rather than the exception. For example, this qualification inheres in the board of curators of the State University; . . . to the regents of our several normal schools; . . . as we have seen to the Supreme Court Commissioners, and to others too numerous to mention here. The reason for these several requisites of different party affiliation is the same as that under discussion here, viz., to procure nonpartisan boards in each case."
Respondents lean heavily upon the authority of State ex rel. v. Wright, supra, decided by this court in 1913. It upheld a statute making it a condition of eligibility in an appointee that he shall "be a member of the leading party politically opposed to that to which the Governor belongs." It was stated in the opinion that respondents' contentions (raising constitutional objections) "are not vehement or insistent, or indeed, very urgent." The case is not authority on the question presented by this record for the reason, first, "there is, of course, no analogy between the cases of elective offices and those where the office is to be filled by appointment" (Rogers v. City of Buffalo, 25 N.E. 274), and, second, the provision of the Constitution here invoked was not raised or considered therein. There the Legislature had conferred the power of appointment on the Governor. Applying the doctrine that the Constitution "may be said to be a limitation upon the powers of the legislative branch, but a grant of powers to the executive branch," and because the power to appoint did not accrue to the Governor directly by the Constitution, but came to him indirectly by delegation from the Legislature, to whom it was directly conferred by the Constitution, it was held that in conferring the power of appointment on the Governor, the Legislature had a right to attach such conditions, and to require such qualifications in those appointed by the Governor as it saw fit (within certain limitations).
Respondents invoke the same principle in the case at bar, basing their contention upon the following constitutional provisions: ". . . the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years." [Art. XI, Sec. I, Const. of Mo.] "The appointment of all officers not otherwise directed by this Constitution shall be made in such manner as may be prescribed by law." [Art. XIV, Sec. 9, Const. of Mo.] It is true, the legislative power, generally speaking, is unlimited, save as the Constitution has set bounds to it. But what is the correct construction to be given the constitutional provision invoked by relator ("that all elections shall be free and open"); and does it extend to, and limit the power of the Legislature in regard to legislation such as here under review?
In State ex rel. v. Arnold, 277 Mo. 474, 210 S.W. 374, the question was whether it was an absolute requirement of a statute "as a condition precedent to the placing by the board of election commissioners of the name of a proposed nonpartisan candidate on the official ballot, that the receipt of the city treasurer . . . shall be filed along with and contemporaneously with the certificate of nomination of such proposed candidate." In resolving that question in the negative, this court in an opinion by FARIS, J., took occasion to say: "The affirmative of the question stated and presented by the facts here at issue would, in our opinion and in the light of the language of the above section, be too narrow a view to take of the meaning of that section. Such a view would inevitably restrict and circumscribe the right of a citizen to be a candidate for office within such limits and hedge the privilege about with such conditions as materially to impinge upon the guaranty of the Constitution that `all elections shall be free and open.'" To the same effect is State ex rel. v. Waechter et al., 332 Mo. 574, 58 S.W.2d 971.
If the Legislature has the power to attach as a condition of eligibility that members of an elective body, such as the board of education, shall be selected from the two major political parties, then it necessarily follows that it would have the power to prescribe that all the members shall be of one political party, or that its membership be made up of individuals belonging to the political parties casting, respectively, the highest and third highest votes at the last preceding general election, thus, in both instances, making ineligible members of the numerically strongest minority party. To so restrict eligibility would, we think, constitute a violation of the constitutional guaranty mentioned.
We find no support for respondents' position in the line of cases cited by them upholding statutes providing, as a condition precedent to a political party participating in a primary election, that it shall have polled a certain percentage of the total vote at the next preceding election.
The purpose to be attained by the statute, as amended, was to make the administration of the affairs of the school district nonpartisan. This end will have been accomplished even though the invalid provisions respecting affiliation with an indefinitely described political party fall, as unconstitutional.
It was upon a consideration of the foregoing matters that the peremptory writ was ordered. We thought then, as now, that it was providently issued.
All concur, except Douglas, J., not voting because not a member of the court when cause was submitted.