State ex rel. Attorney Gen. v. Heidorn

• Decision Date: 31 October 1881
• Citation: 74 Mo. 410
• Parties: THE STATE ex rel. ATTORNEY GENERAL v. HEIDORN, Respondent.
• Court: Missouri Supreme Court

74 Mo. 410

THE STATE ex rel. ATTORNEY GENERAL

v.HEIDORN, Respondent.

Supreme Court of Missouri.

October Term, 1881.

Quo Warranto.

OUSTER AWARDED.

D. H. McIntyre, Attorney General, with Waldo P. Johnson and Zach J. Mitchell for the State.

Thos. G. Allen with David Wagner and George W. Royse for respondent.

HENRY, J.

By this information respondent is charged with having usurped the office of county treasurer of St. Louis county. By his answer he claims to hold the office by virtue of his appointment, on the 27th day of September, 1881, by the county court of said county to fill a vacancy in said office occasioned by the death of Frederick A. Heidorn on the 18th day of September, 1881. There was a demurrer to the answer, which presents the question to be determined.

By section 4, page 226, General Statutes of 1865, of the act in relation to county treasures: “In case of vacancy in the office of treasurer by death, resignation, removal or otherwise, it shall be the duty of the county court to fill such vacancy by appointment, and the person so appointed shall hold his office until the next general election for said county, and until his successor is elected and qualified.” That act was revised in 1879 and section 4 retained, with an amendment by which “failure to renew his bond” was added as an additional cause of vacancy in the office. R. S. 1879, § 5365. This revising act was approved April 29th, 1879. The act concerning popular elections was revised at the same session, and the revising act was approved May 22nd, 1879. Section 5527 of the Revised Statutes of 1879 is one of the sections of that act, and is as follows: “Whenever any vacancy, caused in any manner or by any means whatsoever, shall occur or exist in any State or county office originally filled by election by the people, other than the office of lieutenant-governor, State senator, representative, sheriff or coroner, such vacancy shall be filled by appointment by the governor * *.” The remainder of the section has no bearing upon the question involved. This is a new section, while, except in the addition of the words “failure to renew his bond,” section 5365 is the same as section 4, page 226 of the General Statutes of 1865.

In the City of St. Louis v. Alexander, 23 Mo. 509, it was held that “the revision of a law does not have the effect of making the revised law entirely original so as to be construed as though none of its provisions had effect but from the date of the revised law. When a former provision is contained in a revised law it operates only as a continuance of its existence and not as an original act.” In the City of Cape Girardeau v. Riley, 52 Mo. 428, the doctrine was again announced that “where a former provision is continued in a revised law, it operates only as a continuance of its existence and not as an original act.” The provision by which the county court was authorized to appoint one to a vacancy in the office of the county treasurer was not, therefore, because continued in the revision of 1879, an original act, while section 5527 is an original provision, because found in no act passed at a session prior to the revision of 1879. By section 3160 of the Revised Statutes, it is expressly declared, as previously announced by this court in the cases above cited, that “the provisions of the Revised Statutes, so far as they are the same as those of prior laws, shall be construed as a continuance of...