State ex rel. Withers v. Stonestreet
| Decision Date | 21 December 1889 |
| Citation | 12 S.W. 895,99 Mo. 361 |
| Parties | State ex rel. Withers v. Stonestreet, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Richard H. Field, Judge.
Reversed.
Karnes Holmes & Krauthoff for appellant.
(1) Both by the terms of Revised Statutes, 1879, section 5838 and by the general rules of law in reference to the matter the date of the first appointment fixed the beginning of the term of office. Haight v. Love, 39 N. J. Law, 476. The expression, "term of office," refers to the office, and not to the person holding it. The right to hold over does not extend the term, as applied to the office, but is merely a personal right. Parmater v. State, 102 Ind. 90, 95; People v. Brundage, 78 N.Y. 403, 407; State v. Emerson, 39 Mo. 80. "The expression, 'term of office,' uniformly designates a fixed and definite period of time." Anderson's Law Dict., p. 1023. "When the term is fixed in such a manner that it applies to the office and not to the person, the term expires every fixed period, without regard to any confusion in the previous holding or to when the incumbent commenced service." Jones v. State, 112 Ind. 195, 196. "Nor is there any necessary incongruity in the running of the new term while the former incumbent is discharging the duties of the office." Haight v. Love, 39 N. J. Law, 476, 479, 480. The law fixed the term of office, and, where the term is thus fixed, it is certain that the governor's commission for a longer period will not extend the legal term. Hench v. State, 72 Ind. 297, 306; State v. Chapin, 110 Ind. 272, 276. Accordingly it was held that when an officer's two years' term expired in 1876, but no election of a successor was then had, so that the incumbent held over, and was elected as his own successor in 1877, he held only for the balance of the two years' term expiring in 1878. People v. North, 72 N.Y. 124, 133. (2) A failure to elect or appoint, at the time fixed therefor by law, makes the office vacant in the limited sense that the same is subject to be filled, although an incumbent is occupying it under his right to hold over. Parcel v. State, 110 Ind. 122, 125; Jones v. State, 112 Ind. 193, 197. (3) There is another aspect of the case in which it can well be said that by appointing Belt, the governor worked a removal from office of Keedy, and a vacancy declared to be consequent upon such removal by section 5852, Revised Statutes, 1879. Where the law invests the governor with power of appointment, this carries with it the right of removal subject only to the continuance of the fixed term mentioned in the statute. After the expiration of that term, under the hold-over clause, an officer holds merely at the discretion of the executive, subject to be removed by him. Keenan v. Perry, 24 Tex. 253, 258, 262. The mere appointment of a successor would, per se, be a removal of the former incumbent. Ex parte Hennen, 13 Pet. 230, 261. It is a sound and necessary rule to regard the power of removal as incident to the power of appointment thereto. Newsom v. Cocke, 44 Miss. 352, 358, 359; Williams v. Boughner, 3 Coldw. 486. It is a rule universal in the United States, that, in the absence of constitutional or legislative restrictions, where no definite term of office is prescribed by law, the power of removal is incident to the power of appointment. Patton v. Vaughan, 39 Ark. 211, 214. "A removal from office may be express, or implied, by the appointment of another person to the same office." Bowerbank v. Morris, Wallace [U. S. Cir. Ct.] 118, 125. When an officer holds over, there is no method by which the office can be filled, which, if pursued, will not of itself operate as a removal of such hold-over officer. People v. Cooper, 57 How. Pr. 416, 426. Although there is a law which provides that removals may be made in a certain manner, it does not restrain or limit the power of removal when the same is vested in the governor as incident to the power to appoint. People v. Hill, 7 Cal. 97, 102; Patton v. Vaughan, 39 Ark. 215. Where the law provides a fixed term for the incumbency, the incidental power of removal is superseded only during the continuance of the term so fixed. State ex rel. v. Police Commissioners, 14 Mo.App. 297, 302.
Downing & Hardin for respondent.
(1) The case of State ex rel. v. Smith, 87 Mo. 158, is decisive of this case. All officers of this state hold over their prescribed terms until their successors are appointed or elected and qualified. Const. Mo., art. 14, sec. 5; R. S. 1879, sec. 3330. The act creating the office of coal oil inspector makes the same express provision. He is appointed for not only two years, but "until his successor is duly appointed and qualified." R. S. 1879, sec. 5838; Laws, 1885, p. 176, sec. 1. (2) The time he holds over after the expiration of the two years is just as much a part of his term as any part of the two years preceding. State ex rel. v. Smith, 87 Mo. 158; State ex rel. v. Thompson, 38 Mo. 192; State v. Ranson, 73 Mo. 91; Bank v. Hunt, 72 Mo. 601; State v. Lusk, 18 Mo. 333; Long v. Seay, 72 Mo. 648; State ex rel. v. Kurtzeborn, 78 Mo. 99. Keedy's term never expired until Belt was appointed. Authorities supra. Where the law provides that an officer when appointed shall serve for two years and until his successor is appointed and qualified, in the event of a failure to appoint a successor, the incumbent continues to hold until his successor is appointed and qualified. State v. Howe, 25 Ohio St. 588; s. c., 18 Am. Rep. 321. And the time he holds over the designated period is as much a part of the term of his office as that which precedes the date at which the new appointment should be made. State ex rel. v. Smith, 87 Mo. 158; State v. Harrison, 113 Ind. 234; s. c., 3 Am. St. Rep. 667, and numerous citations; People v. Whitman, 10 Cal. 38; Hubbard v. Crawford, 19 Kan. 570; Gosman v. State, 106 Ind. 203. (3) The power to remove from office belongs to the power of appointment only when the term is not fixed by law, but the office is held at the pleasure of the authority making the appointment. State ex rel. v. City of St. Louis, 90 Mo. 19; Collins v. Tracey, 36 Tex. 546. Such power cannot therefore be exercised by the governor of a state whose power to remove is subject to statutory regulation. Dubuc v. Voss, 19 La. Ann. 210. Where the duration of the office is fixed by the law creating it, the incumbent can only be removed in the manner prescribed by the law. Com. v. Sutherland, 3 Serg. & R. 145; Brown v. Grover, 6 Bush. 1; State ex rel. v. City of St. Louis, supra. The cause for removal of an officer and the manner of his removal are provided in sections 3335-6-7, Revised Statutes, 1879, and that mode must be strictly followed. Hudson v. Co. Court, 28 Ark. 359; Com. v. Sutherland, 3 Serg. & R. 145; Brown v. Grover, 6 Bush. 1. (4) An office when once filled cannot be deemed vacant until the term expires, or until the death, removal, resignation or abandonment of the incumbent. Johnston v. Wilson, 2 N.H. 202; s. c., 9 Am. Decis. 50; State v. Ranson, 73 Mo. 94; State v. Harrison, 113 Ind. 234; S. C., 3 Am. St. Rep. 666. And if the governor appointed Stonestreet erroneously, supposing the office was vacant, his commission conferred no authority. State v. McNeely, 24 La. Ann. 19; State v. Harrison, 113 Ind. 234; s. c., 3 Am. St. Rep. 666; State ex rel. v. McCann, 88 Mo. 386. And Belt's title to the office could not be affected by the ex parte judgment of the governor that the official term had expired. The authority to fill vacancies confers upon the governor no judicial power. State v. Seay, 64 Mo. 89; State v. Harrison, supra. In the absence of proof that the office became vacant by due process of law, prior to the date of Stonestreet's commission, either by expiration of Belt's term of two years, or by his death, resignation or removal from office, it will be presumed that Stonestreet's appointment was erroneous. State v. Bankston, 23 La. Ann. 375. And the governor could not remove Belt from office for the purpose of creating a vacancy in order that he might appoint another to fill such vacancy. 48 Mo. 213; 64 Mo. 89; 88 Mo. 386; 113 Ind. 434; 33 Miss. 550; 1 Cranch, 162; 1 Scammon (Ill.) 79; 12 Kan. 562; 15 Ia. 553; 66 Ia. 199; 36 Texas, 546.
-- On the twenty-first day of June, 1889, an information, filed in the Jackson circuit court by the prosecuting attorney, at the instance and on the relation of George W. Belt, which asserted the right of said Belt to the office of Inspector of Petroleum Oils within and for the City of Kansas for the term of two years from the twenty-sixth day of September, 1888, by virtue of a commission of that date, issued by the governor, etc.; questioned the right of William M. Stonestreet, the present incumbent to that office, and charged that, since the twentieth day of June, 1889, he intruded himself into that office and usurped its rights, privileges, etc., without legal warrant, etc.
In the return of Stonestreet, he admitted the occupancy of the office, but claimed the office by virtue of the appointment of the governor, and a commission from him dated June 17, 1889, entitling the occupant to the office for the term of two years from and after the eighteenth day of June, 1889. He also alleged in his return, and proved this upon the trial, that, after the revision of 1879 went into effect, the first appointment was made and commission issued on the eighteenth day of June, 1879, for the term of two years commencing on said last-named day, and that the following-named persons had been successively appointed and commissioned on the days and for the terms hereinafter stated:
On June 18, 1879, James A. Keel, for a term expiring June 18, 1881.
On ...
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