State ex rel. Richardson v. Ewing

• Decision Date: 31 January 1853
• Citation: 17 Mo. 515
• Parties: STATE AT THE RELATION OF JOHN M. RICHARDSON, v. EPHRAIM B. EWING.
• Court: Missouri Supreme Court

17 Mo. 515

STATE AT THE RELATION OF JOHN M. RICHARDSON,

v.EPHRAIM B. EWING.

Supreme Court of Missouri.

January Term, 1853.

1. The amendment to the state constitution, ratified in 1851, making the secretary of state elective, did not create a vacancy in that office. The incumbent continued to hold until his successor was elected pursuant to the law passed under that amendment; but after his successor was thus elected, he ceased to be the officer, although the term for which he was appointed, under the original constitution, had not expired.

A. Leonard and M. Leslie, for the relator. The first section of the amendments passed in 1851, abolishes the twenty-first section of the fourth article of the original constitution. The second section of the same amendments creates the office of secretary of state, fixes its tenure and prescribes its duties; and provides that it shall be filled by the people, at such time, and in such manner as shall be provided by law. The act of March 28, 1851, was passed to carry these amendments into effect. It is insisted that, under these amendments and law, the relator became entitled to the office as soon as the result of the election was legally declared, and he had given bond and qualified according to law. Against this constrution it is urged that, if it is correct, then there was no secretary between the adoption of the amendments and the election of August, 1852. Several answers to this argument from inconvenience suggest themselves. 1. If this inconvenience were to result, the court could not avoid it. The first section of the amendment expressly abolishes the twenty-first section of the original constitution. The whole force of the section is spent in producing this result. The language is explicit, and the court must give it effect. 2. No such inconvenience results. The original constitution (article four, section nine,) provides that the executive shall fill vacancies. But if this cannot be considered a vacancy, it is a case that may be provided for by law (article three, section thirty-two), and has been provided for in the fifth section of the act of March 3, 1851, before referred to, by which the incumbents in all these offices are expressly continued in office until their successors are qualified. 3. If all this was otherwise, no inconvenience has resulted or can now result from the proposed construction. Mr. Ewing has been in office by color of law, and so there has been a secretary de facto if not de jure, and all his official acts, as such, are valid. The office abolished and the office created in the same breath, may be considered as the same office, within the meaning of this rule of the common law.

GAMBLE, Judge, delivered the opinion of the court.

In this case, leave has been asked to file an information in the nature of a quo warranto against Ephraim B. Ewing, upon the allegation that he unlawfully holds and exercises the office of secretary of state. Upon this application, the parties (both appearing by their counsel) have presented an agreed statement of the facts, showing the grounds upon which Mr. Richardson and Mr. Ewing claim the office of secretary of state, and the questions of law involved in the case have been discussed as they would arise upon an information regularly filed with a plea and demurrer. The pleadings, however, have, since the discussion, been regularly made up by an information by the attorney general, a plea by Mr. Ewing, and a demurrer by the State.

The case presented by the information is the following: Richardson, the relator, was regularly elected secretary of state by the qualified electors, at an election held on the first Monday of August, 1852, in pursuance of an act of the general assembly, approved March 3, 1851, and having received the certificate of his election from the secretary of state, under the seal of the state, he took the oath of office and gave the bonds required by law, which bonds were approved by the governor. He demanded of Ewing the possession of the records and other things appertaining to the office, which Ewing refused to surrender, and he, Ewing, continues to exercise the functions and discharge the duties of the office of secretary of state.

The plea of Mr. Ewing sets up as a defense that, on the seventh day of April, 1849, he was duly appointed secretary of state of the state of Missouri, by the governor, by and with the advice and consent of the senate, and was duly commissioned and qualified, and entered upon the discharge of the duties of said office, which he has ever since continued to discharge; that his appointment and commission gave him the right to the office for the period of four years from the date of his appointment.

To this plea a demurrer is filed by the state. The question to be determined is, whether the term for which Mr. Ewing was originally appointed has been abridged by the amendments to the constitution adopted by the general assembly, at the session which convened on the 30th of December, 1850.

1. The clause in the original constitution, which created the office of secretary of state, in these words: “There shall be a secretary of state, whom the governor, by and with the advice and consent of the senate, shall appoint. He shall hold his office for four years, unless sooner removed on impeachment. He shall...