State ex Inf. Attorney-General v. Dabbs
| Decision Date | 07 June 1904 |
| Parties | THE STATE ex inf. ATTORNEY-GENERAL v. DABBS |
| Court | Missouri Supreme Court |
Writ denied.
Edward C. Crow, Attorney-General, for informant.
W. M Williams for respondent.
(1) It was entirely competent for the General Assembly to provide an additional judge for the circuit court of Jasper county, as is done by the act of March 25, 1901. Laws 1901, pp. 120-1. The Constitution expressly confers this power. Sec. 28, art 6, Const. (2) The act creating this office is not a special law, and does not come within the inhibition of sections 53 and 54 of article 6 of the Constitution. State ex rel. v Yancy, 123 Mo. 400; State ex rel. v. Hughes, 104 Mo. 459; State ex rel. v. Field, 119 Mo. 611. (3) The act approved March 25, 1901, providing an additional judge of the circuit court of Jasper county is in no manner affected by the general law fixing the time for the election of circuit court judges, as amended by section 1749 of the act approved March 13, 1901. Laws 1901, p. 114. (a) The office now held by respondent had not been created at the time of the passage and approval of the last mentioned act. (b) If it could be held that there is a conflict between the provisions of the two acts, the statute relating to the circuit court of Jasper county is the later expression of the legislative will and must control. Endlich on Interpretation of Statutes, sec. 190; Mead v. Bagnall, 15 Wis. 161. (c) Again, where there are two legislative acts, one special and relating to a particular office, and the other general enough to include said office, if standing alone, and especially when said acts or provisions were both passed at the same session of the Legislature, the special act must be taken as intended to constitute an exception to the general act or provision, and is not repealed by the general law even though the latter should be passed subsequent in point of time to the former. Manker v. Fahlhauber, 94 Mo. 441; State ex rel. v. Goetze, 22 Wis. 365; Ruschenberg v. Railroad, 161 Mo. 85; Crane v. Reeder, 22 Mich. 333; State ex rel. v. Hostetter, 137 Mo. 644; Endlich on Interpretation of Statutes, sec. 188. (4) There is no law authorizing an election for this office at any other time than November, 1902, and every six years thereafter. A failure to elect at the time fixed by the statute, or the failure of the person chosen to qualify, will not warrant the holding of another election at a different time from that prescribed by the Legislature. No election can be held unless provided for by law. State ex rel. v. Jenkins, 43 Mo. 265; State ex rel. v. Thomas, 102 Mo. 91; In re Wooldridge, 30 Mo.App. 618; Cooley's Constitutional Limitations (7 Ed.), 892; Mechem on Public Officers, secs. 141-2; McCann's Case, 81 Mo. 479. (5) The act of March 2, 1901, creating an additional judge of the circuit court of Jasper county, under which respondent was appointed and commissioned, expressly provides that: "He shall continue in office until the first Monday of January, 1903, and until his successor is elected and qualified." His successor was elected at the general election in 1902, at the time provided by law, but died without qualifying. Respondent is, therefore, "entitled to hold over until the next regular time for holding an election to fill that office." State ex inf. v. Smith, 152 Mo. 512; State ex rel. v. Seay, 64 Mo. 89; State ex rel. v. Jenkins, 43 Mo. 265; State ex rel. v. Smith, 87 Mo. 160; State ex rel. v. Thompson, 38 Mo. 192; Kimberlain v. State of Indiana, 14 L. R. A. 858; Ransome's Case, 73 Mo. 78. (6) Section 1631 of the statutes and the cases construing the same have no application here. The respondent was appointed under the act creating the office, which he now holds, and which specially provides that, as soon as said act should go into effect, a judge should be appointed to serve "until the first Monday of January, 1903, and until his successor is elected and qualified." The statute specially applicable to this office must control. State ex rel. v. Goetze, 22 Wis. 365; Ruschenberg v. Railroad, 161 Mo. 85. (7) The act of March 25, 1901, declares in terms that respondent shall "continue in office" not only "until the first Monday of January 1903," but "until his successor is elected and qualified." The time intervening between said first Monday of January, 1903, and the election and qualification of his successor, is as much a part of the term for which he was appointed, as the period preceding said first Monday of January, 1903. State ex rel. v. Smith, 87 Mo. 158.
OPINION
In Banc
Quo Warranto.
This is a proceeding by the Attorney-General ex informatione against the defendant to require him to show his authority for holding the office, performing the duties and exercising the functions of judge of the Twenty-fifth Judicial Circuit, composed of Jasper county.
The return pleads that the General Assembly, by an act approved March 25, 1901, provided that the circuit court of Jasper county should thereafter be composed of two judges, each of whom should separately try causes, exercise all the powers and perform the duties imposed upon circuit judges; that the judge of said court then in office should continue until the term for which he was elected has expired and until his successor should be duly elected and qualified, and that he and his successors should preside over "Circuit Court Division No. 1."
It is then set up in the return that it was further enacted by said statute that, upon the taking effect of said act, the Governor should appoint an additional circuit judge for said court, who should preside over "Circuit Court Division No. 2," and that the person so appointed should continue in office until the first Monday of January, 1903, and until his successor should be elected and qualified, and that at the general election to be held in November, 1902, and every six years thereafter, the additional circuit judge provided for in said act should be elected; that said act contained an emergency clause, and went into effect on the twenty-fifth day of March, 1901.
The respondent then states that the Governor of the State of Missouri, on the twenty-eighth day of March, 1901, under and in accordance with the provisions of said act, and by virtue of the authority vested in him by said statute, and the Constitution and laws of this State, did appoint the respondent as the additional judge for said judicial circuit, to hold said office until the first Monday of January, 1903, and until his successor should be elected and qualified, as provided in said statute, and that the Governor on said date duly issued a commission to the respondent as such judge.
The return also alleges that at the time of his said appointment, and when said commission was issued to him, respondent had attained the age of thirty years; had then been a citizen of the United States for more than five years; a qualified voter of this State for three years; a resident of the county of Jasper and State of Missouri, composing the Twenty-fifth Judicial Circuit of said State, and was learned in the law; and that he has ever since been and now is a citizen of the United States, and a qualified voter of said county of Jasper in the State of Missouri; that after receiving his said commission, and before entering upon the duties of said office, he took and subscribed an oath, on the twenty-ninth day of March, 1901, to support the Constitution of the United States and of this State, and to demean himself faithfully in the office of judge of the circuit court of the Twenty-fifth Judicial Circuit of the State of Missouri, and that a certificate that said oath was taken by him, was duly indorsed on his said commission; that thereupon the respondent entered upon the discharge of his duties as judge of said court, and has ever since duly and regularly performed the same under and by virtue of his appointment, commission and qualification aforesaid.
The return further states that at the general election in November, 1902, one F. M. Redburn, a citizen of Jasper county, possessing all the necessary qualifications, was duly elected respondent's successor as judge of said circuit court, but that said Redburn died the day after his election, without having received a certificate of election, or a commission, and without taking the oath of office, or having qualified as such officer; that no successor of respondent has been elected since said date, and that no election can be held therefor until the general election in November, 1908, the time provided in the statute creating said office; that respondent, by virtue of his appointment, commission and qualification aforesaid, is entitled to hold said office until his successor shall be elected at the general election in November, 1908, and shall duly qualify as such officer, and the respondent prays judgment that his title to said office until that time be established and confirmed by the judgment of this court.
The Attorney-General filed a demurrer to this return, assigning as grounds therefor, that it is insufficient in law, and that the death of said Redburn created a vacancy in said office, and that upon the facts set up in the return, respondent is not entitled, as a matter of law, to hold said office until the general election in November, 1908.
The case is submitted to the court upon this demurrer, and the question to be decided is the duration of respondent's term under his appointment to serve until the "first Monday of January, 1903, and until his successor is elected and qualified."
Section 28, article 6, of the Constitution, provides that "in any circuit composed of a single county, the General Assembly may, from time to time,...
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