State ex rel. Attorney-General v. Pearcy

• Decision Date: 31 March 1869
• Citation: 44 Mo. 159
• Parties: STATE ex rel. ATTORNEY-GENERAL, Relator, v. GEORGE A. PEARCY, Respondent.
• Court: Missouri Supreme Court

44 Mo. 159

STATE ex rel. ATTORNEY-GENERAL, Relator,

v.GEORGE A. PEARCY, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Information in the nature of a quo warranto.

As appears from the petition of the attorney-general, under the act of February 9, 1864, establishing a recorder's office for the county of Buchanan, respondent was, in November, 1864, elected recorder of the county, and was again elected in November, 1866; and afterward, in the general election held in November, 1868, one Alexander Bell was elected to the same office. But respondent, claiming to hold for four years from his last election, by virtue of the provisions of Gen. Stat. 1865, ch. 26, § 25, refused to yield possession, and this proceeding was instituted to test his right to the office.

H. B. Johnson, attorney-general, for relator.

Strong, and Slayback, and Glover & Shepley, for respondent.

The “act. to establish the recorder's office for Buchanan county,” approved February 9, 1864 (Adj. Sess. Acts 1863), does not provide for any election after 1864. There is no law of the State providing for any election in 1868. The only law authorizing an election for recorder is the general statute of 1865 (Gen. Stat. 1865, p. 161, § 25). Under this general statute Pearcy was elected for four years, commissioned and qualified. Pearcy, therefore, is entitled to the office, and the election of 1868 was void.

CURRIER, Judge, delivered the opinion of the court.

This is an information in the nature of a quo warranto, and is designed to test the right of respondent to the office of recorder of deeds of Buchanan county. He claims to hold the office in virtue of an election in 1866, for four years, under the provisions of the General Statutes (Gen. Stat. 1865, p. 159, ch. 26, § 25) and a commission issued to him in pursuance of such election. The relator insists that the election of 1866 was under the provisions of the special act separating the office of recorder from that of the clerk of the Circuit Court of that county. (Adj. Sess. Acts 1863, p. 502, § 1.)

In disposing of the case it becomes necessary to construe these respective enactments. Two questions arise: First, did the special act of 1864 contemplate biennial elections, and an official term of two years, not only of the first incumbent, but of his successor as well? and secondly, if it did so establish a term of two years and biennial elections, are its provisions in that respect superseded by section 25, chapter 26, of the General Statutes?

The special act (section 1) provides that “at the general election in November, 1864, a recorder for the county of Buchanan shall be elected, * * * and that he shall hold his office for two years, and until his successor is elected and qualified.” And the third section provides how “such elections for recorder” shall be held and conducted. The two sections read in connection may be understood as providing that the Buchanan county recorder shall be elected at the successive “general elections,” the first incumbent being elected at the “general election” in 1864. If this is the true reading, then biennial elections are contemplated, and the term of office is fixed at two years, not only for the first incumbent, but also for his successors. If the word “elections” in the third section was purposely put in the plural, as it stands, it must refer to the biennial State elections, and not merely to the general election in 1864, mentioned in the first section. The first section employs the words “at the general election,” etc., and the third section employs the words “““such elections,” apparently referring to a succession of general elections, of which the election mentioned in the first section was one. It may be urged with plausibility that the word “elections” in the plural, as it occurs in the third section, is an error, and that the true reading is “such election,” referring to the single general election of 1864, mentioned in the first section. The act is sufficiently obscure, indefinite, and uncertain, it must be confessed. The reading, however, to be adopted must be determined by the general scope of the act and the well-recognized policy of the State, adverse to the continuance of men in office for long and indefinite periods. Unless the act, in sections 1 and 3, provides for refilling the office at the recurring general elections, as they occur biennially, it contains no provision for a second election, and the party first elected, so far as the act is concerned, would hold indefinitely. That result could not have been intended.

Chapter 19, General Statutes, establishing the “office of register of lands,” provides (section 2) that such officer shall be elected and “hold his office for two years, and until his successor shall be elected and qualified;” and chapter 128, in relation to public administrators, provides (section 1) for the appointment of such officer, and that he “shall hold his office for two years, and until his successor shall be qualified.” There is nothing else in either act to determine the term of office of these officers, respectively. These general acts, by fixing the term of the first incumbent at two years, have been regarded as thereby fixing a two-year term generally, involving biennial elections or appointments. Assuming, then, that the Legislature intended by the special act of 1864 to establish a term of office of two years, the officer to be elected at each successive general election, is the term of office enlarged by subsequent legislation of 1866 (Gen. Stat. 1865, ch. 26)? It was intended by the new constitution (article IV, § 27), and by the subsequent legislation under...