State ex rel. Harrison v. Frazier

Barclay, J.

— The charter of Rolla is a special law enacted at a time when such legislation was constitutional. It is declared by its terms to be a public act and receivable in evidence without further proof. This authorizes all courts to take judicial notice of its contents.

, Defendants insist that the state constitution, adopted in 1875, repealed that part of the charter of Rolla requiring the registration of voters at city elections. The constitution defines the qualifications of voters, making no reference to registration as one of them. (Art. 8, sec. 2.) It then declares that “ the general assembly shall provide, by law, for the registration of all voters in cities and counties having a population of more than one hundred thousand inhabitants, and may provide for such registration in cities having a population exceeding twenty-five thousand inhabitants and not exceeding one hundred thousand, but not otherwise.” (Art. 8, sec. 5.) By another section it is made clear that cities having special charters were not intended to be deprived of them by the adoption of the constitution merely, without supplemental legislation to that effect. Const., art. 9, sec. 7.

The terms of a special law are not ordinarily regarded as repealed by a later law of a general nature on the same subject. To thus effect a repeal such an intent must be clearly manifested in the latter. The constitutional declaration regarding the power and duty of the general assembly, in respect of the registration of voters, is, by its terms, evidently designed to have a prospective operation only. It does not purport to repeal any existing law such as is here under discussion. Nor do we think any such purpose can be fairly inferred from its language, especially when we consider that, unless such an intent is evident beyond reasonable question, we should assume as a rule of construction that only a prospective operation of the constitution was contemplated. Shreveport v. Cole, 129 U. S. 36.

But does • the provision (art. 8, sec. 2) defining the qualifications of voters effect such a repeal in this instance ? If it stood alone much could be said in support of that contention. But the addition of a specific declaration (in section 5 of the same article) on the subject of registration shows that such was not the design. It indicates that the enumeration of voters’ qualifications is not intended to exclude the application to elections of a system of registration when provided for by existing law. The provisions of the constitution alluded to are the only parts of it that have been suggested as effecting the repeal claimed. We consider that there is no inconsistency between them and that part of the charter of Rolla here in question.

II. Respecting the remedy granted by the trial court little need be said. We are not now dealing with a mere irregularity in the workings of a registration law. There was, in this case, a total failure to comply with a law making the registration of voters an essential preliminary to an.election. The effect of such failure is no longer an open question in Missouri. This court has expressly declared that it entirely invalidates the election. Zeiler v. Chapman [1874] 54 Mo. 502. The same view of the subject has been taken by other legal authorities. State ex rel. v. Stumpf [1869] 23 Wis. 630; Pitkin v. McNair [1867] 56 Barb, 75; Nefzger v. Railroad [1873] 36 Iowa, 642; People v. Laine [1867] 33 Cal. 55; McCrary on Elec. [2 Ed.] sec. 9; 6 Am. & Eng. Encycl. Law, p. 290.

In this case no facts are shown which might ■operate by way of estoppel or otherwise to impair the full force of the rule, above stated, invoked by relator. As the title of defendants to their offices as councilmen ■of Rolla rested solely on an election which was invalid for the reasons indicated, the judgment of ouster pronounced by the circuit court was correct. All the judges concur in affirming it.