State ex rel. Attorney Gen. v. Gammon

• Decision Date: 30 April 1881
• Citation: 73 Mo. 421
• Parties: THE STATE ex rel. THE ATTORNEY GENERAL v. GAMMON.
• Court: Missouri Supreme Court

73 Mo. 421

THE STATE ex rel. THE ATTORNEY GENERAL

v.GAMMON.

Supreme Court of Missouri.

April Term, 1881.

Quo Warranto.

WRIT DISMISSED.

Burden & Son for relator.

As there could not be uniformity in the probate system without uniformity in the elections of the judges, the election and terms of the judges being a part of the scheme of organization, and an irregularity in this respect besides being a great public inconvenience, the design of the constitutional provision and of the legislature, was to provide for the election of all probate judges as their terms expired, one class to be elected at the general election in 1878, and the other in 1880, and all of them at the general election in 1882; thus consulting public convenience and complying with the settled and well recognized policy of the State, which is adverse to the continuance of men in office for long and indefinite periods; ( State v. Pearcy, 44 Mo. 161;) and in accord with section 8, article 14, constitution 1875 that the term of any office should not be extended for a longer period than that for which he was elected or appointed; for, if the acts creating the probate courts, and providing for the election of the judges thereof, are repealed, and then the legislature omitted to provide for an election for those whose terms had expired, it would be, partly by commission and partly by omission, extending their terms.

If section 1192 is to be enforced according to its letter, and the whole spirit and purpose of the laws on the subject ignored, we then have the legislature, with an intention to make the elections of probate judges uniform, providing for the election in November, 1880, of those judges “whose terms do not expire until the 1st day of January, 1881,” and permitting others, whose terms expire before the 1st day of January, 1881, to hold over until January 1st, 1883, without any election until november, 1882. This is a case in which the strict letter of the law should yield to the manifest intent. State v. Emerson, 39 Mo. 89; Spitler v. Young, 63 Mo. 44; Riddick v. Walsh, 15 Mo. 535; Connor v. R. R. Co., 59 Mo. 285; Potter's Dwarris Stat. and Con., 127, 128.

A. F. Alexander and Ryland & Ryland also for relator.

The office held by respondent at the time of the adoption of the constitution of 1875 was within the meaning of section 42, article 6 of that instrument, and ceased to exist on the 4th day of August, 1880, that being the day on which the term for which he was elected expired. The probate courts provided for by the act of 1877, were new creations, not mere continuations of the former courts. By that act respondent was made ex officio judge of the new court, by virtue of his old office, and so long as that office should continue in existence. When that office ceased to exist (August 4th, 1880), he could no longer hold the new office by an ex officio tenure; and the new office, therefore, became vacant. Being vacated it was to be filled by the Governor until the 1st day of January, 1881; and the law required the election at the general election in 1880, of an incumbent to fill the unexpired term. R. S., §§ 1070, 1177, 1178, 1192.

Wallace & Chiles and Alex. Graves for respondent.

Section 1192 did not authorize the election of a successor to respondent at the November election 1880, because respondent's term did not expire January 1st, 1881, but August 4th, 1880, and it is only those judges whose terms do not expire till January 1st, 1881, whose successors are to be elected in 1880. Hord's election was void. No election can be had unless provided by law. State v. Jenkins, 43 Mo. 265; State v. Lusk, 18 Mo. 341; State v. Robinson, 1 Kas. 17; People v. Mathewson, 47 Cal. 442; People v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; State v. Collins, 2 Nev. 351; Com. v. Baxter, 35 Pa. St. 263; Ex Parte Dodd, 11 Ark. 152; People v. Comstock, 78 N. Y. 356; State v. Fiala, 47 Mo. 318; State v. Benedict, 15 Minn. 198.

HENRY, J.

On the 4th day of August, 1874, the respondent was elected judge of the probate court of Lafayette county for the term of six years, and was commissioned and qualified and entered upon the discharge of the duties of the office. It is agreed that his term of office expired in August, 1880. At the general election in November, 1880, Jas. B. Hord was elected to said office, and the only question to be determined relates to the validity of that election. If it was authorized by law, Hord is entitled to the office, otherwise respondent holds under his election in 1874, and until a successor shall be duly elected and qualified.

By section 34, article 6, constitution 1875, it is provided: “The general assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians, and the sale or leasing of lands by administrators, curators and guardians; and also jurisdiction over all matters relating to apprentices; Provided, That until the general assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established, shall remain as now provided by law.” And by section 35, article 6, constitution of 1875, it is further provided: “Probate courts shall be uniform in their organization, jurisdiction, duties and practice, except that a separate clerk may be provided for, or the judge may be required to act, ex officio, as his own clerk.” And by subsequent legislation under these constitutional provisions, embraced in the act of April 9th, 1877, (Acts 1877, p. 229,) and the amendment thereof, as incorporated in the present Revised Statutes of 1879, page 209, section 1177, it is provided that “at the general election in the year 1878, and every four years thereafter,...