State ex rel. Jackson v. Thompson

Decision Date31 July 1865
PartiesSTATE ex rel. ALBERT JACKSON, v. A. THOMPSON, State Auditor.
CourtMissouri Supreme Court

Petition for Mandamus.

Ewing & Muir, for relator.

The relator applies for a mandamus, now, under circumstances totally different from those in which he made application to this court against a former Auditor. (Jackson v. Auditor, 34 Mo. 375.) There is now, no contest for the office of Judge of the 15th Judicial Circuit, and consequently no question of “right to an office,” as between contesting claimants, to be determined, that being ground upon which the application was then refused. The relators only remedy now, it is submitted, is by mandamus.

I. The act of 1855 (Sess. Acts of 1855, p. 24) is valid, except so far as it undertakes to limit the tenure of the office of judge. This clause is merely a void provision or condition engrafted upon a valid act. (Const. Amend., R. C. 1855, pp. 94-5; id. p. 77; People ex rel. Ingersoll v. Gray, 6 Cow. 646; Bausle v. Wilson, 4 Tex., 410; Bruce v. Fox, 1 Dana, 453; 7 How., Miss., 552.)

If there is no express limitation in the Constitution as to the power of the Legislature in the creation of judicial circuits and the fixing the time for holding elections therein, the act in question in these particulars is valid, unless the exercise of this power is clearly repugnant to, or inconsistent with, some express promise of the Constitution.

II. The petitioner was duly elected in 1857, and if duly elected, it was for the full term of six years, commencing from the expiration of the first term in 1861. (1 R. C. 1855. p. 532, and authorities before cited.)

III. The amendments of the Constitution in 1862 only changed the time of holding the election for judges from August to November. But the Legislature has enacted no law to give effect to the amendment of the Constitution in this respect. As to the effect of such omission, see State v. Ewing, 17 Mo. 515.

IV. The practical construction by the legislative department of the provisions of the Constitution, on this subject, fully accords with the foregoing views, as shown in the several acts establishing judicial circuits and fixing a time for the election of judges therein. (Acts 1858-9, pp. 27, 32-4; 1 R. C. 1855, p. 552, § 42.)

V. It is submitted that there is nothing in the mere fact, that the election of the petitioner in 1857 was held some three years before the expiration of his first term. This is the case with many of the offices filled by election--members of Congress, for example, who are elected in November, and do not enter upon their duties until December of the year following.

VI. The Constitution nowhere says all the judges of Circuit Courts shall be elected at the same time; and to give such a construction to the clause providing for the first general election in August, 1851, and on the first Monday in August every six years thereafter, is to qualify the other clauses referred to improperly, and to restrict the power of the Legislature under them within narrower limits than their terms and the object in view would warrant. Taking the several provisions on this subject together, the...

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22 cases
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 4, 1928
    ...or to compel payment of salary by the city. St. Louis County Court v. Sparks, 10 Mo. 117; Winston v. Mosely, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 71; State ex rel. v. Commissioners, 14 Mo. App. 297; State ex rel. v. City, 90 Mo. 19; Manker v. Faulhaber, 94 Mo. 430; State ex rel. v.......
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 4, 1928
    ...Mandamus is not the proper remedy in any case to determine collaterally the title to office. [State ex rel. v. Auditor, 34 Mo. 375; s. c., 36 Mo. 70; Winston v. Moseley, 35 146.] Nor is it the proper remedy to determine such title in a direct proceeding. [The People v. Stephens, 5 Hill, 616......
  • State ex rel. Kansas City v. Trimble
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ... ... St ... Louis County v. Sparks, 10 Mo. 117; Winston v ... Mosly, Auditor, 35 Mo. 146; State ex rel. v ... Thompson, 36 Mo. 71; State ex rel. v. City, 90 ... Mo. 19; Banker v. Faulhaber, 94 Mo. 430; State ... ex rel. v. Slover, 113 Mo. 202; State ex rel. v ... ...
  • State ex rel. Kansas City v. Trimble
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ...not mandamus is the proper remedy in such case. St. Louis County v. Sparks, 10 Mo. 117; Winston v. Mosly, Auditor, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 71; State ex rel. v. City, 90 Mo. 19; Banker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Wall......
  • Request a trial to view additional results

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