State ex rel. Attorney-General v. Hixon

• Decision Date: 31 July 1867
• Parties: STATE ex rel. ATTORNEY-GENERAL, Plaintiff v. WM. HIXON, Defendant.
• Court: Missouri Supreme Court

41 Mo. 210

STATE ex rel. ATTORNEY-GENERAL, Plaintiff

v.WM. HIXON, Defendant.

Supreme Court of Missouri.

July Term, 1867.

On charges preferred of Misdemeanor in Office.

HOLMES, Judge, delivered the opinion of the court.

This is a proceeding under the statute in relation to clerks of courts (G. S. 1865, ch. 24, §§ 18-24), upon charges exhibited by the Attorney-General against the defendant for misdemeanor in office as clerk of the County Court of the county of Lafayette.

The first charge was, that the said William Hixon, clerk of the County Court aforesaid, did, on the first day of December, 1866, while acting as such clerk, knowingly and wilfully, in violation of law and of his duty as such clerk, issue certificates of election to certain persons named as county officers, and to himself as clerk of the County Court of said county, well knowing that, long prior thereto, the former county clerk had, in conformity with law, duly issued certificates of election to other persons entitled in law to said offices.

The second charge was, that the said clerk did knowingly, wilfully and unlawfully make and enter upon record an illegal and fraudulent order, in violation of his duty as clerk, pretending to approve the bonds of the collector and treasurer of said county at the direction of the former justices of said court, after the expiration of their offices and after their successors had been duly commissioned and qualified, and had entered upon the duties of their offices; the said Hixon well knowing at the time when he entered said order that said persons were not then the justices of the County Court, and were not sitting as a court, and had no authority or right to make such order; which acts were in violation of law and of his official duties as clerk, and were a misdemeanor in office.

To these charges the defendant pleaded “not guilty;” and the cause was submitted to the court for its determination upon the evidence adduced.

The court finds the essential facts to be, that, on the 24th day of December, 1866, at a session of the County Court of the county of Lafayette, begun and held on the 19th day of that month, the court proceeded to examine the legal votes cast at the previous November election, and, it being ascertained by the court that certain persons named had been elected to fill the respective county offices, it was ordered that certificates of election be given to them under the seal of the court, and the whole legal vote was ordered to be certified to the Secretary of State; that all this was done by the clerk accordingly; and that the court adjourned to meet the 27th day of December following, and then adjourned again to the 7th day of January, 1867; that on the 4th day of January, after their last day of adjournment, a session of the court was called and held by the same justices, at which the defendant was present as clerk, and that at this session the court approved the bonds of the collector and treasurer of the county, and directed the clerk to enter the order, which, in obedience to such direction, was entered of record on the same day, saying that said bonds “were approved by the court in vacation.”

We further find that commissions had been issued to the newly elected justices of the County Court of said county, dated the 28th day of December, 1866, and that the justices had received their commissions on the 30th day of December following, and had taken the oath of office on the next day thereafter; that on the same day one of the justices showed his commission to the defendant, and informed him that he supposed the other justices had also received their commissions; that the newly elected justices met and held a session of the court on the 5th day of January following, and then exhibited their commissions, directed them to be recorded (which was done), and entered upon the discharge of their duties as such court; and that when the former justices met on the 4th day of January previous, they had received no notice and had no knowledge that the newly elected justices had received their commissions and been duly qualified.

The meeting of the justices to hold a session of the court in vacation, or on another day than that to which the court had been adjourned, was illegal. Where a resignation of an officer had been accepted by a judge in vacation, and the clerk had made the usual entry in pursuance of an order of the judge, when by law such resignation could be accepted only by the court in term time, the acceptance by the judge in vacation was held to be a nullity--State v. Brown, 12 Ohio, 614. But no intimation was given in the case that the clerk was guilty of any misbehavior in making the entry as ordered by the judge. If the court had been adjourned to meet on that day, their acts might have been valid as a court de facto, though the newly elected justices had already received their commissions and been qualified. They held their offices until their successors should be duly elected, commissioned, and qualified. In such case, though their powers may have ceased and determined de jure, the general rule would seem to be that they could be justified in continuing to exercise the duties of their office until they had received knowledge, or some king of notice, of the fact that their successors had been duly commissioned and qualified; and their acts as a court de facto would, in such case be deemed valid.

It has been decided that where an office is held during pleasure, are moval by the appointing power will not be completely...