State Ex Inf. Major v. Amick

• Decision Date: 31 December 1912
• Citation: 152 S.W. 591,247 Mo. 271
• Parties: THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. W. K. AMICK
• Court: Missouri Supreme Court

152 S.W. 591

247 Mo. 271

THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. W. K. AMICK

Supreme Court of Missouri

December 31, 1912

Writ allowed.

Elliott W. Major, Attorney-General, for informant; R. E. Culver, of counsel.

(1) Respondent's position that the election of his successor Charles H. Mayer, was a nullity, is untenable. The case of State ex inf. v. Dabbs, 182 Mo. 359, is not in point here. (2) We also understand respondent to contend that he is entitled to hold said office until the first Monday in January, 1913, by virtue of sec. 5828, R.S. 1909. This general provision of the statute was enacted in 1879 (sec 5527, R.S. 1879) at the same session of the Legislature at which section 3896 was enacted. There is no conflict between these sections. Both may be read together with full force and effect. Both were passed by the same Legislature, at the same session, and, if read together, they will be found perfectly consistent and each will be found to have a proper purpose. The rule of construction in this State has always been that where there is a general provision which might include some particular subject it will be held to include it, unless there is an act which applies to the particular subject, in which case the act applying to the particular subject will be treated as an exception to the general act. State ex inf. v Burkhead, 187 Mo. 14; State ex rel. v. Perkins, 139 Mo. 106; Mayes v. Palmer, 206 Mo. 296. (3) The closing paragraph of sec. 1 of the Act of 1889 reads as follows: "The judges of such circuit court shall enter upon the performance of their duties on the first Monday in January next ensuing their election," and it is upon this that the respondent bases his claim to hold his office until January 1, 1913. This clause of the act can refer only to the judges elected for the regular term of six years because no other judges were provided for in said act. Indeed, the language in no way changed the law as it then existed, for sec. 3313, R.S. 1889, in force at the time and still in force, provides that all judges of the circuit court should take their offices "on the first Monday in January next ensuing their election." State ex rel. v. Perkins, 139 Mo. 106; Mayes v. Palmer, 206 Mo. 296.

W. K. Amick pro se.

(1) The election of a successor to respondent was without authority of law, and is a nullity. State ex inf. v. Dabbs, 182 Mo. 359; Laws 1889, sec. 1, p. 74. (2) Under the Constitution, sec. 2, art. 5, the Governor had the authority to appoint respondent to fill the vacancy created by the resignation of L. J. Eastin, and the person so appointed held to the end of the term in which the vacancy occurred. State ex inf. v. Herring, 208 Mo. 708. (3) Sec. 3896, R.S. 1909, is unconstitutional, and is not authority in this case. Sec. 32, art. 6, Constitution. While the provision of the Constitution allows the Legislature to fill the vacancy, it does not allow the Legislature to provide for filling the vacancy and then provide further for ending of the term of the person chosen to fill the vacancy, and then again fill the vacancy by another method. When the vacancy is once filled, then the power of the Legislature is at an end. The vacancy may be filled either by election, or be filled by appointment, but it cannot be filled by appointment and then afterwards a vacancy created and filled by election. The statute says "such vacancy shall be filled by appointment of the Governor." This language exhausts the power of the Legislature to again make the office vacant and refill it, if it has already been filled. After providing that the Governor shall fill the vacancy for a certain length of time, the statute then provides that the vacancy shall be filled by election. This last part of the statute is mere surplusage, and void, for the reason that the vacancy has already been filled by appointment, and the Legislature has no power to create another vacancy in the same office to afterwards be filled by election. (4) The term of any circuit judge extends beyond the term for which he was appointed or elected, and continues until his successor has been elected and qualifies. Sec. 3843, R.S. 1909. (5) Judges of division number two of the Buchanan Circuit Court take their seat on the first Monday in January next ensuing their election. As the act creating division number two of the Buchanan Circuit Court is a special act, it would control as to the time when the judge would take his seat. The language of the act is as follows: "All judges of said circuit shall enter upon the performance of their duties on the first Monday in January next ensuing their election."

WOODSON, J. Graves, J., concurs in separate opinion in which Lamm, Kennish and Brown, JJ., concur.

OPINION

In Banc.

Quo Warranto.

WOODSON J.

-- This is an original proceeding by quo warranto, instituted in this court, by the Attorney-General, against the respondent, William K. Amick, to show by what authority he holds the office and performs the duties of Judge of Division Number Two of the circuit court of Buchanan county, the same being the sixth circuit.

The writ was duly issued and respondent has entered his appearance, and, in order to secure a speedy determination of the case, has filed his return, and consents that the case may, by the court, be taken up and disposed of upon the briefs filed by the respective parties.

The facts of the case are undisputed, as appears from the petition for the writ filed by the Attorney-General, and the return thereto made and filed by the respondent, and are substantially and briefly set forth in the statement of the case made by the relator, which is as follows:

"The respondent has filed his return, in which he alleges that he is exercising the powers of said office, and claims to be the duly appointed, qualified and acting judge of Division No. 2 of said court. In support of this contention, the return recites the passage and approval of an act of the General Assembly of this State, approved April 13, 1889, found at pages 73, 74 and 75 of the Laws of 1889, which act creates another division of the circuit court in the 12th judicial circuit, said new division to be known as Division Number Two.

"The return further sets out that the number of said twelfth judicial circuit was thereafter changed to the sixth judicial circuit; that at the election held in November, 1890, and at the regular elections thereafter held in November of the years 1896, 1902 and 1908, the judge of said Division Number Two of said court was elected according to the terms and provisions of said act of April 13, 1889; that at the regular election so held in November, 1908, one Lucien J. Eastin, who then possessed all the necessary qualifications, was duly and regularly elected judge of said Division Number Two of said court; that he duly qualified and exercised the duties of said office to the third day of January, 1911, on which day he resigned his said office, and the respondent, who possessed the necessary qualifications for said office, was appointed by the Governor of this State to fill said vacancy, and thereafter qualified, and since the date of his qualification, to-wit, the 7th day of January, 1911, has been and is now the duly appointed, qualified and acting judge of said Division Number Two of said court, and that by reason of said facts so alleged he is entitled to hold and exercise the duties of said office until the regular election to be held in November, 1914.

"The respondent further alleges in the return that Charles H. Mayer possesses all the qualifications prescribed by law for said office and was duly elected judge of said Division Number Two of said court at the general election held on November 5, 1912; that he received the highest number of votes cast for any person for said office at said election, and that on the 18th day of November, 1912, the Governor of this State duly issued and delivered to said Charles H. Mayer a commission as judge of said Division Number Two of said court, and that thereafter, on the 30th day of November, 1912, the said Mayer duly took the oath of office and qualified as required by law.

"The respondent further answers that he believes and alleges that the said election so held 'was a nullity and void because no election for judge of the circuit court, Division Number Two of the sixth judicial circuit could have been held at said time under the law creating said office,' and concludes his return by requesting the court to speedily hear and determine whether he, the respondent, or the said Charles H. Mayer, is lawfully entitled to said office.

"Upon the filing of this return the Attorney-General filed his motion for judgment on the pleadings."

I. Respondent does not state his contentions, but leaves the court to infer what they are from reading certain statutes cited in the case of State ex inf. v. Dabbs, 182 Mo. 359, 81 S.W. 1148, referred to in connection therewith. Such a presentation of a case is extremely unsatisfactory to the writer, for the reason that he is always in doubt as to whether his ideas of the case meet with the views of counsel presenting the same. They may have one theory of the case, and the court may have another, and when the latter expresses its views of the case, they may be wide of those entertained by counsel; and were it not for the pressing necessity of a speedy determination of the case, we would feel inclined to seek more light upon that subject, but under the conditions and circumstances surrounding the case, and the parties thereto, we deem it advisable to proceed with the case in the light cast before us.

The statutes cited and relied upon by respondent read as follows:

"Section 1. From and after the approval of this act, the twelfth...