State ex rel. Berry v. McGrath

• Decision Date: 31 October 1876
• Parties: STATE OF MISSOURI, ex rel. JAMES BERRY, Relator, v. MICHAEL K. MCGRATH, Secretary of State, Respondent.
• Court: Missouri Supreme Court

64 Mo. 139

STATE OF MISSOURI, ex rel. JAMES BERRY, Relator,

v.MICHAEL K. MCGRATH, Secretary of State, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Petition for Mandamus.

B. G. Barrow, for Relator.

J. L. Smith, Att'y Gen'l, for Respondent.

HOUGH, Judge delivered the opinion of the court.

This is an application for a writ of mandamus to compel the Secretary of State to cast up and certify to the governor the votes polled for the relator, in the counties composing the 27th Judicial Circuit, for the office of judge of that circuit, at the general election in November, 1876.

It appears from the petition that in the month of July, 1876, Judge John W. Henry, then judge of said circuit, transmitted to the governor his resignation of said office, which resignation was expressed to take effect on the 31st day of December, 1876, and was accepted by the governor to take effect on that day; that at the general election in November, 1876, the relator was, with others, a candidate for said office, was eligible thereto, and received a majority of all the votes cast for the several candidates therefor, and that said votes were duly returned to and are now in the custody of the secretary of State, and that he refuses to count and certify the same. The next general election for circuit judges is fixed by law to occur in November, 1880.

Section 32 of Article VI of the Constitution of 1875, provides that “in case the office of judge of any court of record becomes vacant by death, resignation, removal, failure to qualify, or otherwise, such vacancy, shall be filled in the manner provided by law.”

The sole question presented for our determination by the application of the relator is, whether there was any law authorizing the election of a successor to Judge Henry at the general election in November, 1876. By section 46 of the general statutes on the subject of elections, it is provided, that when any vacancy shall happen in the office of judge of the Supreme Court, judge of the circuit court, and other offices therein named, by death, resignation or otherwise, the governor upon being satisfied that such vacancy exists, and that it occurred more than twelve months before a general election for such officer, shall issue his writ of election to fill such vacancy.

In March, 1873, an act was passed providing that 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...