State ex rel. Attorney Gen. v. Seay

• Decision Date: 31 October 1876
• Citation: 64 Mo. 89
• Parties: STATE OF MISSOURI, ex rel. ATTORNEY GENERAL, Relator, v. ABRAHAM J. SEAY, Respondent.
• Court: Missouri Supreme Court

64 Mo. 89

STATE OF MISSOURI, ex rel. ATTORNEY GENERAL, Relator,

v.ABRAHAM J. SEAY, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Quo Warranto.

C. M. Napton, for Relator.

I. The relator insists that there existed no vacancy on the 5th of March, 1875, in said office, and as the governor could order an election only in case of a vacancy, the election of defendant was a nullity.

The Constitution of 1865, Art. 6, § 14, provides that circuit judges “shall be elected for the term of six years, but may continue in office until their successors shall be elected and qualified.” The six years for which Gale was elected expired, but as there was no one to succeed Gale he held over, and being rightfully judge at the time the governor ordered an election, the office was not vacant, but filled, by one lawfully authorized to exercise its functions. (See State vs. Lusk, 18 Mo. 333.)

McCord died January 2d, two days before the expiration of the six years for which Gale was elected--Gale was certainly judge then. So was he on the first Monday of January, 1875, and during the month for that matter, because McCord had died before entering and being inducted into the office, before his term would have begun. This left Gale judge de facto and de jure, and he held the office by a full and complete title at the time when the governor ordered an election. (See also, Comm. vs. Hanly, 9 Barr, 517 [Penn. St.]; State vs. McNeely, 24 La. An. 19.) The death of McCord before January 4, 1875, places the case in the same position as though there had been no election in November, 1874.

Before the court can decide that Seay was legally elected, it must be guilty of deciding that an office is vacant while it is led; that there can be a vacancy in an office when there is a person in possession, whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments. The mere enunciation of this shows that it would be a legal absurdity. (See 9 Barr [Penn. St.], 513; People vs. Tilton, 37 Cal. 614; 18 Mo. 333; People vs. Whitman, 10 Cal. 46; 38 Mo. 193.) That there was no vacancy; see further, People vs. Lord, 9 Mich. 231; State, etc. vs. Ralls County Court, 45 Mo. 58; People vs. Forquer, Breese [Ill.], 104; Pappan vs. Gray, 9 Paige, 507; People vs. Van Horne, 18 Wend. 515; State vs. McCallister, 11 Ohio, 51; Stewart vs. State, 4 Ind. 396; Miller vs. Burger, 2 Ind. 337; Swails vs. State, 4 Ind. 516.

The respondent claims that the death of McCord left a vacancy which Gale might, by law, fill until the governor ordered an election, and until the person elected thereat came to take the office.

This would allow the anomaly of “graded vacancies”--vacancies that do not vacate. To speak of Gale's occupying a vacancy until some one came along to occupy it because it is a vacancy, is absurd. The very moment it is admitted that Gale might, by law, occupy this vacancy, its vacuity ceased, and the governor's power to appoint or order an election did not attach.

The law, in view of the California, Michigan, Missouri and Pennsylvania cases, undoubtedly means that Gale should hold the office not only during the six year term, but after that and until an elected and qualified successor ““presented himself” to take the office. On the day McCord's term was to have begun, he was not an elected and qualified successor. He had been elected and had qualified, but no one can be a successor until he succeeds. Gale was entitled to sit as judge on the 1st Monday of January, because the person elected to succeed was then dead, and the law intended to cover this very case and prevent a vacancy by allowing the incumbent to hold over.

II. Defendant has not denied enough to avail himself anything as he admits that Gale was a candidate for the office in 1868 took charge of it the first Monday of January, 1869, and served six years. Gale was therefore de facto judge during that time. The governor, the attorney general and the people, as well as his opposing candidate at the election of 1868, all acquiesced in his holding the office, and that is sufficient to make him de facto judge. (45 Miss. 151.)

The governor cannot by any act of his oust a de facto judge who holds the office. The law points out the remedy. (See opinion of Judge Wagner, in State ex rel. Vail vs. Draper, 48 Mo. 213.) And therefore, the governor could not oust Gale by ordering this election, under which Seay claims the office. So that, whether we admit or not that Gale was never elected to this office, it is immaterial, and therefore this part of the answer is insufficient.

But there is another ground for ousting the defendant, which goes to show that Seay is not entitled to this office, even if there were a vacancy, and if Gale had never held the office at all; that is, that there was no authority for the special election ordered by the governor in March, 1875. The term of office of a circuit judge is six years. The Constitution of 1865, Art. 6, § 14, provides, that “if any vacancy shall happen in the office of any circuit judge, the governor shall, upon being satisfied that a vacancy exists, issue a writ of election to fill such vacancy; provided, that said vacancy shall happen at least six months before the next general election for such judge.” And further on in the same section “And the General Assembly shall provide by law, for the election of said judges in their respective circuits, to fill any vacancy which shall occur at any time, at least six months before a general election for said judges.” Now the General Assembly has made such a provision, and it is as follows: “In all cases of vacancy in any office the length of the term of which is over two years, the vacancy shall be filled by the election of some person to the office at the first general election after such office becomes vacant.” (Sess. Acts 1873, p. 43, approved March 13, 1873.) The length of this term is over two years, and the supposed vacancy occurred January 4, 1875, being more than six months before November, 1880, when the next general election for circuit judges occurs, and the next general election after January 4, 1875, is in November, 1876. Therefore, there can be no election of circuit judge to fill this supposed vacancy until November, 1876.

Neither could the governor appoint, to fill this vacancy, as the Constitution, Art. 6, sec. 14, says: “But if such vacancy shall happen within six months of the general election for circuit judges, the governor shall appoint a judge for such circuit.” Thus showing that the governor can appoint only when the vacancy happens within six months of the next general election for circuit judges, and as this happens in 1880, there would thus be left no power of appointment.

It is alleged that Gale abandoned the office. But there is no allegation of an intent to abandon, and there can be no abandonment without an intention to abandon. (State vs. Pritchard, Am. Law Reg., Aug. 1873, p. 514; 7 Vroom, 101; 39 Tex. 1.)

It is further charged that Gale had commenced the practice of law in the Ninth Circuit--(the defendant at the same time claiming that the office was vacant, and there was no court to practice before.) As the law does not allow circuit judges to practice, this is simply a charge of malfeasance or misfeasance in office.Lay & Belch, with John W. Booth, for Respondent.

I. The allegation of abandonment by Gale standing admitted by the demurrer, of itself shows a vacancy. The respondent, being elected and commissioned to fill that vacancy, takes possession, and continues to execute the functions of the office. Gale, the person alleged to have abandoned the office, has not come forward at any time and set up title to the office. (See State ex rel. &c. vs. Draper, 45 Mo. 355; State ex rel. &c. vs. Lusk, 48 Mo. 242.)

II. The governor, and what is the same, the people, declared there was a vacancy, and in this proceeding, where no private rights are involved, the people of the State are estopped from denying respondent's right. (Commonwealth vs. The Pejepscut props., 10 Mass. 155; Commonwealth vs. Heirs of Andre, 3 Pick. 224; Opinion of court in response to Governor, 49 Mo. 316.)

III. But by the constitution, article 5, § 14, “the governor shall, upon being satisfied that a vacancy exists, issue a writ of election to fill such vacancy.” Could language more plainly confer the power of determining the question, did a vacancy exist? We think not.

And the officer in whom the constitution confided the power of judging has passed judgment. Had he declined to act, no court could have compelled him to do so (State ex rel. Bartley vs. Governor, 39 Mo. 388), and having acted, no court can review or reverse his action. (Martin vs. Matt, 12 Wheat 19, see p. 31; Vandevheyden vs. Young, 11 Johns. 150, see p. 157; Commonwealth vs. Baxter, 35 Penn. St., 263; State vs. Adams, 2 Stew. [Ala.] 23; Britton vs. Stebers, 62 Mo. 870; State ex rel. Robinson vs. County Court of New Madrid, 51 Mo. 82; State ex rel. Brooks vs. Baxter, 28 Ark. 129; Tappan vs. Gray, 7 Hill 259.) At all events, every reasonable presumption is in favor of the regularity and legality of his acts. (State ex rel. vs. Wrot Nowski, 17 La. 156; Bank U. S. vs. Dandridge, 12 Wheat. 70; State ex rel. Leal vs. Jones, 19 Kerr. 356; Cool. Const. Lim. p. 69.)

IV. Gale was not de facto a judge. An officer de facto, as between the government and himself, is one who comes in office by the forms of an election or appointment. The mere performance of official duties does not constitute him such an officer. There must be color of right by election or appointment, or an acquiescence on the part of the public for such a length of time as to raise a strong presumption of colorable right. (State ex rel. Cornwall vs. Allen, 21 Ind. 516; Kerr vs. Jones, 19 Ind. 351; Ang. & Ames Corp. 465; 1 Dill. Mun. Corp. [2 ed.] § 167; State ex rel. Leal vs. Jones, 19 Ind. 356...