State ex rel. Vail v. Draper

• Citation: 50 Mo. 353
• Parties: THE STATE OF MISSOURI ex rel. JAMES H. VAIL, Relator, v. DANIEL M. DRAPER, STATE AUDITOR, Respondent.
• Decision Date: 31 July 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 353

THE STATE OF MISSOURI ex rel. JAMES H. VAIL, Relator,

v.DANIEL M. DRAPER, STATE AUDITOR, Respondent.

Supreme Court of Missouri.

July Term, 1872.

Petition for Mandamus.

Ira E. Leonard, for relator, cited Const. of Mo., art. VI, §§ 14, 16-19; Commonwealth v. Gamble, 62 Penn. 343; Commonwealth v. Mann, 5 Watts & Serg., Penn., 403; People v. Dubois, 23 Ill. 547; People ex rel. Ballou v. Bangs, 24 Ill. 187; People v. Garey, 6 Cow. 642; 9 Cow. 640; State v. Messmore, 14 Wis. 163; Lowe v. Commonwealth, 3 Metc., Ky., 237; Commonwealth v. Sutherland, 3 Serg. & R. 145; Hoke v. Henderson, 4 Devereux, N. C., 1; Page v. Hardin, 8 B. Monr. 648; McCafferty v. Guyer, 9 P. F. Smith, 109; Bates v. Kimball, 1 Chip. 77; People v. Draper, 15 N. Y. 558; Moses Mand. 87; Citizens' Bank v. Wright, 6 Ohio St. 318; The People v. Pinckney et al., 32 N. Y. 377; The State v. Dilloway, 2 Vroom, N. J., 42; State ex rel. Vail v. Draper, 48 Mo. 213; Barto v. Himrod, 4 Seld. 483; State ex rel. Circuit Att'y v. Cape Girardeau State Line R.R., 48 Mo. 468; 38 Mo. 419; State ex rel. Attorney-General v. Davis, 44 Mo. 129; State ex rel. Jackson v. Emerson, 39 Mo. 87; State of Ohio ex rel. Flinn v. Wright, 7 Ohio St. 333.

Lay & Belch, for respondent.

The general assembly may change, modify or abolish a statutory office, and the incumbent would hold subject to such change, modification or abolishment. (State ex rel. Davis v. Mann, 41 Mo. 395; State ex rel. Attorney-General v. Davis, 44 Mo. 129; Primm v. City of Carondelet, 23 Mo. 22.) And while it may be admitted that the office of circuit judge cannot be abolished nor the term changed, yet the circuits are prescribed or given by statute, and they may be changed, modified or altered by the statute. (6 Wend. 531; 18 Me. 109; 7 Ohio, 333; 62 Penn. St. 348; People ex rel. Ballon v. Bangs, 24 Ill. 184.)

ADAMS, Judge, delivered the opinion of the court.

This is a petition for mandamus upon the State auditor to compel him to issue to the relator a warrant for a quarter's salary alleged to be due the relator as judge of the Twenty-sixth, formerly Fifteenth, judicial circuit of this State. The facts of the case, as they appear from the record, are as follows: Under the law as it existed up to the 15th of March, 1872, the Fifteenth judicial circuit was composed of the counties of Iron, Reynolds, Washington and Jefferson. At the general election for judges, held in November, 1868, the relator was elected judge, and commissioned as such judge, of the Fifteenth judicial circuit by the governor. He qualified as such judge under the constitution and laws of this State, and entered upon his duties as such, and has continued in possession of the office, discharging its duties, until the present time. It further appears from the record that at the adjourned session of the Twenty-sixth general assembly an act was passed and approved the 15th of March, 1872, entitled “An act dividing the State into judicial circuits, prescribing the time of holding courts therein, and providing for the election of five additional circuit court judges and circuit attorneys.” The twenty-seventh section of the act provides that the Twenty-sixth judicial circuit shall consist of the counties of Jefferson, Washington, Iron and Reynolds. These counties are the identical counties, and embrace the same territory, which constituted the former Fifteenth judicial circuit. Under section 16 of this act the counties of McDonald, Jasper, Newton and Lawrence, in the extreme southwest part of the State, are made to constitute the Fifteenth judicial circuit. The auditor, as a justification of his refusal to issue the warrant, sets up the fact that under this act Philip Pipkin was commissioned as judge of the Twenty-sixth judicial circuit, as created by this act, on the 24th of April, 1872, as appears by the register of civil officers of government in the office of Secretary of State.

It will be seen from this statement that the question arising upon this record is whether the relator by this act was ousted from his office, or, if not ousted, whether he is not now the judge of the new Fifteenth circuit instead of the present Twenty-sixth circuit.

I suppose it will not be seriously contended that the Legislature has the power to expel a circuit judge from his office by a simple act of legislation. This office is created by the constitution, and as long as there is a circuit over which the judge may preside he is entitled to hold his office until the expiration of his term, if he behaves himself properly. Whether the Legislature, by abolishing his circuit, can also abolish his office, is a question not necessarily presented by this record. The weight of authority, however, seems to be that the abolition or alteration of the circuit does not abolish the office. The independence of the judiciary demands that this should be the case. (See Commonwealth v. Gamble, 62 Penn. 343; Commonwealth v. Mann, 5 Watts & Serg. 403; People v. Dubois, 23 Ill. 547; People ex rel. Ballou v. Bangs, 24 Ill. 187; People v. Garey, 6 Cow. 642; 9 Cow. 640; State v. Messmore, 14 Wis. 163; Lowe v. Commonwealth, 3 Metc., Ky., 237; Hoke v. Henderson, 4 Devereux, N. C., 1; Page v. Hardin, 8 B. Monr. 648.) But the act of the Legislature under consideration dees not abolish the relator's office, nor does it change or modify his circuit. It leaves it precisely as it was before, except that the number by which it was designated is changed from Fifteenth to Twenty-sixth. The fourteenth section of the sixth article of the constitution provides that “the State shall be divided into convenient circuits, of which the county of St. Louis shall...