State Ex Inf. Barrett v. McClure
| Decision Date | 14 July 1923 |
| Citation | 253 S.W. 743,299 Mo. 688 |
| Parties | THE STATE ex inf. JESSE W. BARRETT, Attorney-General, ex rel. JAMES W. SHUMARD v. DAISY McCLURE |
| Court | Missouri Supreme Court |
Ouster awarded.
A. S Cumming for relator.
(1) When a vacancy happens in the office of County Treasurer, the Governor appoints some one to serve until the next general election, at which election a successor is chosen for the rest of the unexpired term or for the next ensuing term, as the case may be. R. S. 1919, sec. 4786. (2) The date on which newly elected treasurer in Harrison County takes office is April 1st, Harrison County being under township organization. R. S. 1919, sec. 9528. (3) Tenures of office are fixed by legislative enactment and cannot be expanded by any provision in the Governor's commission. State ex rel. v Perkins, 139 Mo. 116. (4) The election referred to in Section 4786 is the election next ensuing after the vacancy occurred, and not the next ensuing election for that office. State ex inf. v. Koeln, 270 Mo. 174; State ex inf. v. Amick 247 Mo. 271. (5) The election meant in Section 4786 was merely the general election, and did not include the primary and all its incidents, is manifestly held by the majority of this court in their dissent from the first paragraph of the opinion in State ex rel. Evard v. Roach, 269 Mo. 500.
Garland Wilson for respondent.
Where one is appointed to fill a vacancy and qualifies, he is entitled to hold until his successor is legally elected and qualified. State v. Carvey, 154 N.W. 931. There could have been no legal election for the office of County Treasurer of Harrison County at the November election in 1922, for the reason that all of the election machinery had no opportunity to function. State ex rel. Pratt v Haymard, 119 N.W. 620; Stewart v. Polley, 137 N.W. (S. D.) 565; State ex rel. v. Roach, 269 Mo. 500.
OPINION
In Banc
Quo Warranto.
-- The Attorney-General, April 10, 1923, filed in this court an information in the nature of quo warranto, alleging that one James W. Shumard, at the general election November 7, 1922, was duly elected treasurer of Harrison County, Missouri, and that respondent, Daisy McClure, usurped and continued to hold possession of said office, and praying for a writ ordering her to show by what authority she claimed the office.
A writ was duly issued by this court, ordering her to show cause, to which she made return June 1, 1923, setting up facts which appear in an agreed statement filed by the parties hereto.
The agreed statement filed in this court is to the effect that on November 2, 1920, Joseph B. McClure was elected to the office of Treasurer of Harrison County, for a term of four years, beginning April 1, 1921; that McClure duly qualified and entered upon the duties of his office and continued in the discharge of such duties until the third day of August, 1922, when he died.
On the tenth day of August, Governor Hyde appointed his widow, Daisy McClure, Treasurer of Harrison County, to succeed Joseph B. McClure, deceased. The commission of Daisy McClure recites that her appointment for Treasurer of Harrison County is, "for the unexpired term and until her successor is duly elected and qualified."
Daisy McClure took the oath of office on the twelfth day of August; she was duly qualified and entered upon the discharge of her duties, and still holds the office.
The primary election for 1922 was held on the first day of August, and the time for candidates to file for nomination for such primary expired on the first day of June, 1922.
At a meeting of the county central committee of the Republican party in Harrison County, held on the day of September, 1922, the relator, James W. Shumard, was nominated as the Republican candidate for the office of County Treasurer, and his name placed upon the official ballot as such candidate, and at the general election, November 7, 1922, Shumard received a majority of the votes cast for Treasurer of said Harrison County. He afterwards gave necessary statutory bond, subscribed to the required oath, and received from the County Court of Harrison County a commission as treasurer of said county for the portion of the unexpired term for which Joseph B. McClure had been elected, after the first day of April, 1923. Shumard possesses all the qualifications required by the statute for the office, and made formal demand upon Daisy McClure for the office, which demand was refused.
I. It is first claimed by the respondent that she is entitled to hold the office during the entire unexpired term for which her commission states she was appointed. It is argued that under Section 9528, Revised Statutes 1919, Joseph B. McClure was elected for a term of four years ending the first day of April, 1925; that she was appointed for the unexpired term; that under Section 4786, Revised Statutes 1919, she was entitled to hold the office until the next general election for that office instead of the next general election to be held.
The first question to be determined is: Could there be an election to fill an unexpired term where any general election occurred between the occurrence of a vacancy and the end of a term? Section 4786 provides for the appointment to fill a vacancy caused by whatsoever means in a county office to be filled "until the first Monday in January next following the ensuing general election, at which said general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term as the case may be."
The section then provides that when the term begins on any other day than the first Monday in January the appointee shall hold such office until such other date.
The statute plainly states that the election may be for an unexpired term. The Governor would have no authority to make an appointment which would conflict with that provision of the statute. This question was settled by Court in Banc in case of State ex inf. v. Koeln, 270 Mo. 174, 192 S.W. 748, l. c. 190-191, 192 S.W. 748, which involved the office of Collector. A Collector's office ran for four years under Section 12875, Revised Statutes 1919, the provision being in language very similar to Section 9528 relating to the term of County Treasurer. This court there held that at a general election the Collector could be elected for an unexpired term, that there was no conflict between the statute regulating the length of the term and Section 4786, Revised Statutes 1919, providing for an election for the unexpired term. In that case the office of Collector expired the first day of January. The office of County Treasurer expired the first day of April. That would make no difference, however, in the application of the statute. A Treasurer elected in November enters upon his office the first day of April following. The relator here was elected then for the unexpired term beginning the first day of April, 1922.
Originally special elections were provided for to fill vacancies so as to cut short the tenure of appointees. Apparently the expense and trouble of having special elections to fill vacancies caused the Legislature in 1879 to provide for vacancies to be filled by appointment until the next succeeding general election. This shows that the legislative policy of the State has been to fill a vacancy for an elective office by election as soon as practicable after the vacancy occurs.
II. It is further insisted by the respondent that the political committee had no authority to nominate Shumard. Two sections of the statute affect the matter of filling vacancies on the ticket. Section 4815, Revised...
To continue reading
Request your trial