Beck v. Jackson

• Decision Date: 31 October 1868
• Citation: 43 Mo. 117
• Parties: JOHN BECK, Relator, v. ALBERT JACKSON, Respondent.
• Court: Missouri Supreme Court

43 Mo. 117

JOHN BECK, Relator,

v.ALBERT JACKSON, Respondent.

Supreme Court of Missouri.

October Term, 1868.

Application for Mandamus.

H. M. Jones, for relator.

I. Section 8 of article V of the State constitution of Missouri vests in the governor the power, and imposes upon him the duty, when any office shall become vacant, and no provision is made by law for a different mode of appointment, to appoint a person to fill such vacancy. This constitutional provision is directly applicable to the present case. 1. L. Horsten, the recent clerk of the Cape Girardeau Circuit Court, was elected as such at the general election in 1866, and held his said office for the term of four years from January 1, A. D. 1867. (§ 22, art. VI, Const. Mo.) His death created a vacancy in said office of clerk. 2. No provision was made by the general statutory law of the State for the filling of such vacancies. 3. Section 8 of article V of the constitution is therefore applicable to the case. It expressly confers upon the governor the power to fill vacancies in cases such as the present. 4. The governor's commission to Mr. Beck as clerk to fill the vacancy is conclusive as to the appointment.

II. It was the duty of Judge Jackson, on the application of Mr. Beck, to fix the amounts of Mr. Beck's bonds as clerk of the Circuit Court and as ex-officio recorder, and to approve such good and sufficient bonds as might be presented to him. (Gen. Stat. 1865, p. 154, § 5; p. 159, § 4.) This, Judge Jackson refused to do, claiming, mistakenly, the right to fill the vacancy himself, and announcing to Mr. Beck that he had already appointed Mr. Harrison as clerk, and put him in possession of the office.

III. Mandamus is the proper remedy for the wrong complained of.

WAGNER, Judge, delivered the opinion of the court.

The relator asks the court to issue a mandamus against Albert Jackson, judge of the Tenth Judicial Circuit, requiring him to proceed to approve his bonds as clerk of the Circuit Court and recorder for the county of Cape Girardeau. It appears that, at the general election in 1866, one Leopold Horsten was elected clerk of the said court, and was duly commissioned and qualified as such, and entered upon the discharge of his duties, and continued as such clerk until his death, on the 26th day of August, 1868; that on the 29th day of August, 1868, the governor of this State duly appointed and commissioned the relator clerk of said court, to fill the vacancy occasioned by the death of...