State ex rel. Jackson v. Moseley

• Decision Date: 31 March 1864
• Citation: 34 Mo. 375
• Parties: STATE, ex rel. ALBERT JACKSON, Petitioner, v. WILLIAM S. MOSELEY, AUDITOR OF PUBLIC ACCOUNTS, Respondent.
• Court: Missouri Supreme Court

34 Mo. 375

STATE, ex rel. ALBERT JACKSON, Petitioner,

v.WILLIAM S. MOSELEY, AUDITOR OF PUBLIC ACCOUNTS, Respondent.

Supreme Court of Missouri.

March Term, 1864.

Petition for Mandamus.

The 15th Judicial District for the State of Missouri was created by an act of the General Assembly, approved March 3, 1855, and entitled “An act to establish the 15th Judicial Circuit, and for other purposes.” (Sess. Acts, p. 24.)

On the 3d Monday of March, 1855, the petitioner was duly elected judge for said circuit, and commissioned as such. On the first Monday of August, 1857, the petitioner was again elected judge of said circuit, and commissioned. On the first day of April, 1864, the petitioner presented his account to the Auditor for allowance, being in amount $375 “for salary as judge of the 15th Judicial Circuit, for the quarter ending March the 31st inclusive.”

On this account, as presented, the Auditor has endorsed the following as his official explanation for not allowing the account for payment:

“The Auditor cannot audit and allow the above account to Judge Jackson, for the reason that Judge J. W. Emerson was elected judge of the 15th Judicial Circuit on the 3d of November, 1863, and duly commissioned on the 5th day of January, 1864, and is under said election now judge of said court. April 1, 1864. Wm. S. Moseley, Auditor.”

On the above facts, as stated, all of which are admitted, the application for mandamus was made to the Supreme Court to compel the Auditor to reverse his action in the premises.

N. Holmes, for petitioner.

I. The constitutional and statute laws applicable to the case seem to be the following:

Sec. 3 of the “Act to establish the 15th Judicial Circuit,” approved March 3, 1855, as follows: “§ 3. There shall be an election held at the several places of voting within the aforesaid several counties, on the third Monday of March, A. D. 1855, for the purpose of electing a judge for said 15th circuit, which election shall be governed in all respects by the law regulating the election of circuit judges, who shall hold his office until the regular election for circuit judges.” (Local Acts 1855, p. 24.)

At that date the constitutional provisions stood thus:

“Art. VII. Amendment ratified in 1850-1. § 1. * * * And hereafter each judge of the Circuit Courts shall be elected by the qualified electors of their respective circuits, and shall be elected for the term of six years, but may continue in office until his successor shall be elected and qualified. * * * And the General Assembly shall provide by law for the election of said judges in their respective circuits. * * * The first general election for circuit judges shall be held on the first Monday in August, A. D. 1851, and on the first Monday in August every six years thereafter. * * * The offices of the several circuit judges shall be vacated on the first Monday in August, A. D. 1851.”

And by the revised act concerning courts (R. C. 1855, p. 532): “§ 4. On the first Monday in August, in the year 1857, and every six years thereafter, there shall be an election held in each judicial circuit in this State, at the places and in the manner provided by law for holding elections, for the election of a circuit judge for each circuit, respectively, by the qualified voters therein.”

So the law appears to have stood down to the passage of the ordinance of the State Convention concerning the election of judges, which provided, in effect, “§ 1. So much of the sixth and seventh articles of the Amendments to the Constitution, ratified in 1850-1, as provides for the election of Supreme and Circuit judges on the first Monday in August, 1851, and every six years thereafter, shall be and is abolished;” and “§ 2. That the first general election for Supreme and Circuit judges shall be held on Tuesday next after the first Monday in November, 1863, and every six years thereafter.” (Ord. June 26, 1863, Acts 1863-4, p. 702.)

This ordinance did not vacate the offices of the judges, but only changed the day of election.

II. I make these points:

1. By Art.--, § 7, of the Constitution, the Legislature has power to establish new and additional circuits, and the second cited clause from Art. VII. of Amendments of 1850-1, gives power to provide for the election of circuit judges therein.

2. By the first cited clause of sec. 1 of Art. VII. of Amendments to Constitution of 1850-1, the term and tenure of the judicial office is absolutely fixed at six years; and there is no other clause in the Constitution which ascertains or defines it otherwise, nor indeed in any statute. I pass over the clause of the same section which provides that “if any vacancy shall happen in the office of any circuit judge, by death, resignation, removal out of his circuit, or by any other disqualification,” the Governor shall issue a writ of election to fill such vacancy, or, if it happen within six months before the general election, shall appoint a judge “for the residue of the term only,” not deeming that this can be considered, by any construction, such case of a vacancy.

3. The other clauses cited from Art. VII. of the Amendments of 1850-1, and sec. 4 of the Act concerning Courts (R. C. 1855, p. 532), merely ascertain and fix the day and year on which the general election for judges shall be held, but provide nothing concerning the term or tenure of the office, nor as to the time when the term shall begin or end; though it is true that as to all those circuits which were in existence at the date of the amendments, the offices of the judges therein were vacated on the same day of the election, and consequently the beginning and expiration of the terms of the judges there elected in fact correspond to the days of the general election as well as those of their successors in office.

4. The act of March 3, 1855, sec. 3, so far as it made provision for the election of a judge in the fifteenth circuit was constitutional and valid; but so far as the last clause thereof, in these words, “who shall hold his office until the regular election for circuit judges,” can be interpreted to refer to the next general election “for circuit judges, to be held on the first day of August, 1857,” for the purpose of limiting the term or tenure of office of the judge so elected to that date, it is inconsistent with the Constitution, inoperative and void. (Bailey v. Gentry, 1 Mo. 164; Smith, Com. in Stat. & Const. Law, 601.) Where there is contradiction, partial or other, in two enactments on laws, resort must be had to construction, and construction consists in causing a text of inferior authority to agree and harmonize with the demand of a principle of superior authority, though against the immediate and direct meaning of the words constituting the inferior text. (Id. 602.)“If a law be passed, parts of which are contrary to the fundamental law of the State, it is called construing the law, when the proper judges declare those parts invalid.”

5. The day of the first election only in the fifteenth circuit is specially provided for in the act, leaving subsequent elections to be governed by other laws; but this last clause of sec. 3 may properly be interpreted as having the effect to provide that such subsequent elections shall take place on the same days as the “general election” for circuit judges, (as indeed would have been the case without that clause,) though the consequence be that the second election would be held some years before the expiration of the preceding term. Members of Congress in this State have been elected more than a year before their actual qualification as members, and seven months before the legal commencement of their term.

6. If these positions be sound, as I submit they are, then it follows that Judge Jackson's first term ended in 1861, and that his second and present term will end in 1867; and although the election of Mr. Emerson in November, 1863, may be valid, his term cannot...