State Ex Inf. Major v. McKay

• Decision Date: 08 April 1913
• Parties: THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. WILLIAM M. McKAY
• Court: Missouri Supreme Court

155 S.W. 396

249 Mo. 249

THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. WILLIAM M. McKAY

Supreme Court of Missouri

April 8, 1913

Writ denied.

John T Barker, Attorney-General, for relator; Thomas B. Allen and Broaddus & Crow of counsel.

(1) Whether we take the phrase "term of office" in its ordinary sense, or in its technical import, it means one and the same thing: "A fixed and definite period of time." State ex rel. v. Stonestreet, 99 Mo 372; State ex inf. v. Williams, 222 Mo. 278. In State ex rel. Tilley v. Ford, 41 Mo.App. 128, construing the statute in question, the court said: "So, then, when Judge Spencer entered upon the duties of circuit judge he was authorized to appoint a court stenographer for his said court in that county. And this he did by selecting and commissioning relator Tilley, who took the office for a tenure or term coextensive with that of Judge Spencer." (2) The words "term of office" do not refer to the incumbent or incumbency in the office -- those words refer to the tenure or duration of the office. Jameson v Hudson, 82 Va. 282. (3) The word "term" has no application to appointive office held at the pleasure of the appointing power. Mechem on Public Officers, sec. 385; Speed v. Crawford, 3 Met. (Ky.) 207; Field v. Malster, 41 A. 1088. (4) Where no time is definitely fixed for the beginning of the term, the term will begin at the date of the appointment. Mechem on Public Officers, sec. 386; State ex rel. v. Williams, 222 Mo. 268. (5) The mandate of the statute is that words in the statute must be construed in their ordinary sense. Sec. 8057, R.S. 1909. This court will not undertake to construe a statute contrary to the plain intendment of the words used. Henry v. Evans, 97 Mo. 47; State ex rel. v. County Court, 128 Mo. 427; Smith v. Railroad, 143 Mo. 38; State ex rel. v. Riley, 203 Mo. 187.

Culver & Phillip for respondent.

(1) The words "during the term of the judge appointing him" mean the time actually served by the judge, and not the time for which he was elected. State ex rel. v. Smith, 87 Mo. 158; Silver v. Magruder, 32 Md. 397; Trial of Andrew Johnson, vol. 2, p. 194; Ib., vol. 3, p. 322. (2) The authorities, defining the words "term of office," cited by informant, are not in point. (3) Official terms should not be extended beyond the time clearly defined, but rather shortened by implication. 23 Am. & Eng. Ency. Law, p. 409; Mechem on Public Officers (Ed. 1890), par. 390; 29 Cyc. 1396; Wright v. Adams, 45 Tex. 134; Smith v. Bryan, 100 Va. 199; People v. Palmer, 154 N.Y. 133; People v. Brenham, 3 Cal. 477. (4) It is not the policy of the law in this State to make the term of the appointee coextensive with the term for which the officer appointing him was elected. State ex rel. v. Gordon, 238 Mo. 168; Hartman v. Adamson, 101 Mo.App. 119. (5) The act of Judge Eastin in appointing Ford for a term of six years was illegal.

GRAVES, J. Woodson, Bond and Faris, JJ., concur; Lamm, C. J., Brown and Walker, JJ., dissent in an opinion by Brown, J.

OPINION

In Banc.

Quo Warranto.

GRAVES J.

-- The facts of this case are so succinctly, briefly and fairly stated by counsel for respondent McKay, that I adopt their statement. Such statement reads:

"This is a proceeding by quo warranto, brought by the Attorney-General against William M. McKay, respondent, to require said respondent to show by what authority he holds and exercises the duties of the office of official stenographer of Division No. Two of the Circuit Court of Buchanan county, Sixth Judicial Circuit.

"The undisputed facts as disclosed by the information, and answer and return are as follows:

"At the general election held in November, 1908, one Lucien J. Eastin was duly elected judge of Division No. Two of said court for a term of six years, and duly qualified and entered upon the discharge of his duties on January 1, 1909, following his election. On the fourth day of January, 1909, Judge Eastin duly appointed Harry K. Ford as official stenographer of said court, and said Ford on said date qualified as such stenographer and from said date to the fourth day of January, 1913, has been the qualified and acting official stenographer of said court.

"On January 3, 1911, Judge Eastin resigned his office, and on said date William K. Amick was appointed as his successor by the Governor. Judge Amick qualified and entered upon the discharge of his duties and so continued until the 31st day of December, 1912, when judgment of ouster was entered against him in a proceeding similar to this in this court. During the time Judge Amick served as such judge the said Ford continued to serve as stenographer without any appointment other than that made by Judge Eastin.

"At the general election held on November 6, 1912, Charles H. Mayer was elected to said office, to fill the vacancy caused by Judge Eastin's resignation, to hold for the remainder of the term ending on December 31, 1914, and his right to the office for the time stated was confirmed by this court in the case above mentioned.

"On the first day Judge Mayer held said court, to-wit, January 4, 1913, he appointed the respondent, McKay, as official stenographer for said court, duly entered of record in said court an order to that effect, and the respondent duly qualified and since said time has been acting as such stenographer.

"The case is for determination on the motion filed by information for judgment on the pleadings."

The statute under which appointments are made in Buchanan county, reads:

"For the purpose of preserving the record in all cases for the information of the court, jury and parties, and for expediting the public business, the judges of the circuit courts of the State of Missouri, for counties having a population of more than forty-five thousand and less than one hundred and fifty thousand inhabitants, shall appoint an official stenographer for each court or each division of said circuit court, who shall be well skilled in the art of stenography, and shall have had at least three years' actual practice in court reporting. Such stenographer shall be a sworn officer of the court, and shall hold his office during the term of the judge appointing him." [R.S. 1909, sec. 11244.]

The last clause of this section "and shall hold his office during the term of the judge appointing him" is the real bone of contention. Other side suggestions, if necessary, will be noted in the course of the opinion.

I. That there is an ambiguity in this statute is clearly evidenced by the well defined diverse views of contending counsel, as well as the diverse views of members of this court. We usually do not differ where the legislative act is clear and unambiguous. This statute is uncertain, indefinite and ambiguous. In such case there is at least one well defined preliminary rule of construction. This preliminary rule is stated in 23 American and English Encyclopedia of Law, p. 409, thus:

"If a statute or constitutional provision fixing or limiting the duration of an official term is ambiguous, that interpretation should be followed which limits the term to the shortest time."

So too 29 Cyc. 1396 announces the rule thus:

"Where the statute fixing the term is uncertain, that interpretation should be followed which limits the term to the shortest period."

The same idea is expressed by Mechem on Public Officers (Ed. of 1890), paragraph 390, in this language: "Where a constitutional provision prescribing the term of a public officer is uncertain or doubtful in its construction, that interpretation will be adopted which limits the term to the shortest time." This rule may have some application to the case at bar as we proceed later to discuss this statute. It is at least a sidelight in the construction of a statute which we think is ambiguous as to the actual term of the office attempted to be created. The language of the statute is such that we must try to seek the legislative intent from its face. This act we take next.

II. We come now to the statute itself. It says "and shall hold his office during the term of the judge appointing him." Does this mean that the stenographer goes out when the judge making the appointment goes out, or does it mean that the stenographer holds for the term for which the appointing judge was elected? Judges of the circuit court are elected for a term of six years, and if the statute means that his appointment holds for that term, irrespective of the holding by the judge himself, the respondent has no standing, here. If, on the other hand, the statute means that the stenographer shall only hold so long as the appointing judge holds, then McKay is right and the relator wrong. What is meant by "the term of the judge appointing him" as used in the statute? An answer solves the case. To my mind one's term of office does not necessarily refer to the time, in years, for which he was elected. That elective term may be sooner terminated. Death may terminate it. Resignation may terminate it. Removal may terminate it. However the elective term may be terminated, in ordinary parlance we speak of the time actually served, as "the term" of the particular officer. That which remains we speak of as "the term" of his legal successor. Had the Legislature desired to fix the term of the stenographer more definitely it no doubt would have done so. That body knew what we all know, that the court stenographer is much more closely connected with the judge than any other official. He receives the dictations and writes the official and other letters of the judge. The judge must have confidence in him, or he is at a loss to know what to do in signing bills of exceptions wherein there is a dispute. In fact, above all others, the stenographer is and...