State ex rel. Kreiter v. Straat

• Decision Date: 31 March 1867
• Parties: STATE OF MISSOURI ex rel. WILLIAM KREITER, Respondent, v. JOHN N. STRAAT, Appellant.
• Court: Missouri Supreme Court

41 Mo. 58

STATE OF MISSOURI ex rel. WILLIAM KREITER, Respondent,

v.JOHN N. STRAAT, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Appellant, pro se.

I. The vacating ordinance fixes the term of office of the officers mentioned therein.

II. That sec. 6, ch. 18, p. 141, G. S. 1865, is not a law having any force, power or validity whatever so far as this case is concerned.

Harding & Crane, for respondent.

First the relator (respondent) admits that, under the opinion of the Judges of the Supreme Court given in response to questions propounded by the Governor, Gantt would have held the office by virtue of his appointment for the remainder of the original term, had he lived; and that if the Governor had filled the vacancy existing on May 1, 1865, by the appointment of any other person, such appointee would have held n like manner. But the relator contends that Mr. Straat was not appointed under the vacating ordinance, and that he was appointed under he provisions of the Constitution, secs. 8 and 26, art 5, then in force, d under secs. 5, 6, 20 and 21, ch. 18, G. S. pp. 141-2, in effect, at the ime of his appointment.

I. The ordinance was confined and applicable to those vacancies only which already existed or were by it created on the 1st day of May, 1865, and that one exercise of the appointing power conferred by it upon the Governor exhausted said power.

The Constitution, when it went into effect, superseded the ordinance, and vacancies occurring thereafter must be filled in accordance with the provisions of the former.

The constitutional provisions above referred to contemplated and authorized the action of the Legislature upon the subject, and such action was taken G. S. ch. 18, p. 141.

WAGNER, Judge, delivered the opinion of the court.

The only question in this case is whether the relator or the appellant is entitled to the office of assistant circuit attorney for the Eighth Judicial Circuit, composed of the county of St. Louis. The facts in the case are that in November, 1864, at a regular election held in pursuance of the laws of this State, Walter C. Gantt was elected and commissioned assistant circuit attorney for four years, and being removed from office May 1, 1865, by the vacating ordinance, was re-appointed by the Governor for the residue of the term. Gantt held the office until his death on the 17th of August, 1866, and the appellant was on the 20th of that month appointed and commissioned by the Governor to fill the vacancy. The relator was elected assistant circuit attorney at the general election in November last, and commissioned by the Governor on the 27th of December. The Circuit Court found that the relator was entitled to the office, and gave judgment accordingly.

The contest here seems to grow out of the different views taken of the vacating ordinance. In the opinion given by a majority of this court to the Governor, it...