State ex rel. Attorney Gen. v. Ranson

• Decision Date: 31 October 1880
• Parties: THE STATE ex rel. THE ATTORNEY GENERAL v. RANSON.
• Court: Missouri Supreme Court

73 Mo. 78

THE STATE ex rel. THE ATTORNEY GENERAL

v.RANSON.

Supreme Court of Missouri.

October Term, 1880.

Quo Warranto.

D. S. Twitchell, W. V. Childs and Field & Small for relator.

Section 2807 is a nullity, because: (1) It is not embraced in the title of the bill, and, therefore, violates section 28 of article 4 of the constitution of Missouri. State ex rel. v. Lafayette Co. Ct., 41 Mo. 39; State v. Wilson, 7 Ind. 516; State v. Bowers, 14 Ind. 195; Igoe v. State, 14 Ind. 239; Spaugh v. Huffer, 14 Ind. 305; Mewherter v. Price, 11 Ind. 199; Ryerson v. Utley, 16 Mich. 269; People v. Palatine, 53 Barb. 70; Cooley on Const. Lim., pp. 143, 144, 149; City of Kansas v. Payne, 71 Mo. 159; People v. Denahy, 20 Mich. 349; Foley v. State, 9 Ind. 363; Gillespie v. State, 9 Ind. 380. (2) That part of said section which continues justices in office whose terms were to expire at the recent election is in violation of section 8 of article 14 of the constitution of Missouri. See also section 14 of article 9, idem. ( a) There was a vacancy at the expiration of four years from date of Ranson's commission, and Childs holds title by appointment to the office held by Ranson § 5 of art. 14, Const. ( b) No recital of reasons are necessary why an appointment is made, it is only necessary that it shall appear with or without reasons that an appointment has been made.

Peak & Yeager for respondent.

The legislature has full power to fix the time at which elections shall be held, and also has the right to fix the powers, duties and duration in office of justices of the peace. Art. 6, § 37, Const. When they assume to act and do pass a statute in the premises, such statute will be maintained, unless it is in direct conflict with the constitution. By this statute they have simply fixed the time at which all justices shall be elected. But it is contended, by virtue of the second paragraph beginning with: “But every justice,” etc., the legislature has extended the term of office in violation of section 8, article 14. In using said language they only use the exact language of our constitution, viz: “All officers hereafter elected or appointed shall hold office during their official term, and until their successors shall be duly elected or appointed and qualified.” Again, the same language has been in use in our statutes since 1865. R. S., 2813. The mere fact that the legislature has failed to fix a time for an election to be held prior to 1882, does not in any wise impair the validity of this statute. Again. If there is a reasonable doubt as to the constitutionality of the statute, such doubt must be solved in its favor. State v. New Madrid Co. Ct., 51 Mo. 82; Cooley's Const. Lim., (4 Ed.) 220; State v. Able, 65 Mo. 357. The legislature intended by this statute to make the election of justices of the peace uniform throughout the State, so as to avoid mistakes and confusion in the premises. Under the laws prior to this statute some justices were elected at every bi-ennial election, and it was to correct this that the statute was passed.

If any portion of said section is valid it will be maintained unless the entire section is so connected that it cannot be separated without destroying the intention of the law-makers. 54 Mo. 175; St. Louis Co. v. Griswold, 58 Mo. 175; Cooley's Const. Lim., (4 Ed.) 214; In re Burris, 66 Mo. 442; Ensworth v. Curd, 68 Mo. 282. In this statute the second paragraph may be eliminated without in any way impairing the first. Said first paragraph would be complete within itself, and the constitution would take the place of said discarded paragraph, and say: “That the person holding the office shall continue to exercise the duties of the office during his official term and until his successor is duly elected and qualified.” § 5, art. 14, supra.

If the entire statute is in harmony with the constitution, or if the first paragraph alone is maintained, then the legislature has failed to provide for the election of a justice of the peace, and in the absence of any statute authorizing such an election, no person can acquire a right to the office by reason of receiving the majority of the votes cast at such an election. Respondent's successor could only be elected at an election duly held under the statute governing the election of justices of the peace.

If there was no authority for the election of justices in 1880, then the failure on the part of the legislature to provide for such election does not create a vacancy. There can be no vacancy, for the commission of respondent, in harmony with the constitution, provides that he shall hold until his “successor is duly elected and qualified.” And in the case at bar there could be no vacancy for the reason there was already a person rightfully exercising the duties, fully authorized to hold said office for the term of four years and until his successor is duly elected and qualified. R. S., § 2813; State v. Lusk, 18 Mo. 333; State v. Jenkins, 43 Mo. 261.

The commission issued to Childs cannot be construed into an appointment. It shows upon its face that it was never intended as an appointment, but was given to him because the court found that at the election in November, 1880, Childs received a majority of the votes cast. Nothing appears in the record that it was the intention to appoint Childs.

RAY, J.

This was a proceeding in the nature of a quo warranto, by the State of Missouri, at the relation of the Attorney General, against the respondent, Joseph C. Ranson, requiring him to show by what warrant or authority he claimed to have and exercise the powers and duties of a justice of the peace within and for the township of Kaw, in Jackson county, Missouri. The information was filed December 13th, 1880, and charged, in substance, that at the general election for State, county and township officers held in said township, under authority of law, on the 2nd day of November, 1880, one John W. Childs was legally elected a justice of the peace within and for said township, and that on the 10th day of said month thereafter, said Childs was duly appointed and commissioned a justice of the peace, within and for said township, by the county court of Jackson county, Missouri, and qualified accordingly, and that, thereafter, said Childs was legally entitled to hold said office and receive and enjoy its emoluments and privileges. The information then further charges that the respondent, Ranson, had been elected and commissioned a justice of the peace for said township, in November, 1876, for the term of four years, but that said respondent, since said election and commission of said Childs, in November, 1880, had been and was exercising the powers and duties of a justice of the peace, in said township of Kaw, beyond the term for which he was elected and commissioned, and in violation of law, to the great damage of the State of Missouri, and contrary to the statute in such cases made and provided. The answer of respondent first denies that he is, or was wrongfully holding said office; and then, for a further answer, says, in substance, that at the regular and general election held in November, 1876, he was duly elected a justice of the peace, within and for said township of Kaw, in said county and State, and that in pursuance of said election, he was thereupon duly commissioned by the county court of Jackson county, aforesaid, justice of the peace for said township of Kaw, for the term of four years, and until his successor was duly elected and qualified. The answer then further says, that since his said election in November, 1876, no person has been duly elected or appointed and qualified, under the law, as his successor; that since then there has been no legal election held, at which his successor could have been elected; and that there was no law or authority for holding an election for justice of the peace in said township in November, 1880; and that by reason thereof, and by virtue of his commission, he was and is entitled, under the constitution and the statutes of the State to hold and exercise the powers and duties of justice of the peace, within and for said township, in said county and State. The reply was a general denial.

The facts in this cause, as shown by stipulation of the parties, are, in substance: That at the regular general election held in November, 1876, the respondent was duly elected justice of the peace within and for Kaw township, Jackson county, Missouri, and that afterward, to-wit: on the 8th day of November, 1876, he was duly commissioned as such justice of the peace for said Kaw township, for the period of four years, and until his successor was duly elected or appointed and qualified, and that since that date, and up to and including the present time, the said Ranson has exercised and still continues to exercise the duties and prerogatives of said office. It is also admitted that at the last regular election held in November, 1880, the said respondent and John W. Childs were competing candidates for said office, and that, at said election, said Childs received a majority of 496 votes over said Ranson; and that thereafter, on the 10th day of November, 1880, said Childs applied to the county court of said county to be commissioned to said office for the period of four years; and that thereupon the said respondent appeared before said court protested against said court issuing a commission to said Childs, and that at the same time a letter was read from Peak & Yeager, addressed to the presiding justice, J. B. Yeager, that under the law and also section 2807, Revised Statutes, the said Childs was not entitled to a commission for the reason that there was no provision for an election at the November election, 1880; and that afterward, on the 10th day of November, 1880, the said county court issued a commission to said Childs, as justice of the peace for said township, for the period of two years, and until his suessor is elected and qualified: and that said Childs...