State v. Amick

Citation152 S.W. 591,247 Mo. 271
PartiesSTATE ex inf. MAJOR, Atty. Gen., v. AMICK.
Decision Date31 December 1912
CourtUnited States State Supreme Court of Missouri

Act April 13, 1889 (Laws 1889, p. 73) by section 1 created another division of the circuit court, and provided that the Governor should appoint an additional circuit judge for division No. 2, to continue in office until January 1, 1891, and that at the general election in November, 1890, and at the general elections held every six years thereafter, such additional circuit judge should be elected. Section 3 provided that all laws not inconsistent should continue. Rev. St. 1909, § 3896, enacted pursuant to Const. art. 6, § 32, relating to the filling of vacancies in courts of record, provided that such vacancies should be filled by appointment by the Governor until the next general election after such vacancy occurred, to be then filled by election for the unexpired term. A judge for division No. 2, elected for a term to expire January 1, 1914, resigned January, 1911, and respondent was appointed to fill the vacancy, and at an election November, 1912, another candidate was elected, who was commissioned by the Governor. Held, that the statutes should be construed together; that, in the absence of a provision for vacancies in courts of record, it was intended that they should be filled as provided by section 3896; that the term of six years applied only to judges elected for a regular term of six years, and not to a judge elected or appointed to fill a vacancy; so that the appointee was not entitled to hold until the regular election in November, 1914.

2. STATUTES (§ 161)—IMPLIED REPEAL.

Repeals by implication are not favored, and, where two statutes cover in whole or in part the same matter, it is the duty of the court to harmonize them, if possible, and to give effect to both as if they constituted one act.

3. STATUTES (§ 181)—CONSTRUCTION—INTENT OF LEGISLATION.

Statutes should be so construed as to give paramount effect to their intent.

4. JUDGES (§ 7)—ACTS RELATING TO SAME SUBJECT—EXCEPTION TO GENERAL ACT.

Rev. St. 1909, § 5828, which provides that vacancies in any state or county elective office should be filled by the Governor, the appointee to continue in office until January 1st next following the first ensuing general election at which an officer shall be elected to fill the unexpired term or for the ensuing regular term to take office January 1st following, while sufficiently broad to cover vacancies in all courts of record, when read together with section 3896, enacted at the same time, which provides that vacancies in the office of judge of any court of record shall be filled by appointment until the next general election thereafter, when the office shall be filled by election for the unexpired term, harmonizes with section 3896, so that section becomes in effect an exception to the more general provisions of section 5828, and applies specifically to vacancies in the office of judge of courts of record, so that the term of a judge appointed in 1911 to fill the vacancy in a term expiring 1914 expired November 5, 1912, the day following the general election at which another judge was chosen.

En Banc. Quo warranto by the State, on the information of E. W. Major, Attorney General, against W. K. Amick, Judge, to show by what authority he held the office and performed the duties of Judge of Division No. 2 of the Circuit Court of Buchanan County. Writ of ouster ordered to issue.

This is an original proceeding by quo warranto, instituted in this court, by the Attorney General against the respondent, William K. Amick, judge, to show by what authority he holds the office and performs the duties of judge of division No. 2 of the circuit court of Buchanan county; the same being the Sixth circuit. The writ was duly issued, and respondent has entered his appearance, and, in order to secure a speedy determination of the case, has filed his return, and consents that the case may, by the court, be taken up and disposed of upon the briefs filed by the respective parties.

The facts of the case are undisputed, as appear from the petition for the writ, filed by Attorney General, and the return thereto made and filed by the respondent, which is substantially and briefly set forth in the statement of the case made by the relator, which is as follows: "The respondent has filed his return, in which he alleges that he is exercising the powers of said office, and claims to be the duly appointed, qualified, and acting judge of division No. 2 of said court. In support of this contention, the return recites the passage and approval of an act of the General Assembly of this state, approved April 13, 1889, found at pages 73, 74, and 75 of the Laws of Missouri, 1889, which act creates another division of the circuit court in the Twelfth judicial circuit; said new division to be known as division No. 2. The return further sets out that the number of said Twelfth judicial circuit was thereafter changed to the Sixth judicial circuit; that at the election held in November, 1890, and at the regular elections thereafter held in November of the years 1896, 1902, and 1908, the judge of said division No. 2 of said court was elected according to the terms and provisions of said act of April 13, 1889; that at the regular election so held in November, 1908, one Lucien J. Eastin, who then possessed all the necessary qualifications, was duly and regularly elected judge of said division No. 2 of said court; that he duly qualified and exercised the duties of said office to the 3d day of January, 1911, on which day he resigned his said office, and the respondent, who possessed the necessary qualifications for said office, was appointed by the Governor of this state to fill said vacancy, and thereafter qualified, and since the date of his qualification, to wit, the 7th day of January, 1911, has been and is now the duly appointed, qualified, and acting judge of said division No. 2 of said court; and that by reason of said facts so alleged he is entitled to hold and exercise the duties of said office until the regular election to be held in November, 1914. The respondent further alleges in the return that Charles H. Mayer possesses all the qualifications prescribed by law for said office and was duly elected judge of said division No. 2 of said court at the general election held on November 5, 1912; that he received the highest number of votes cast for any person for said office at said election; that on the 18th day of November, 1912, the Governor of this state duly issued and delivered to said Charles H. Mayer a commission as judge of said division No. 2 of said court; and that thereafter, on the 30th day of November, 1912, the said Mayer duly took the oath of office and qualified as required by law. The respondent further answers that he believes and alleges that the said election so held `was a nullity and void because no election for judge of the circuit court of division No. 2 of the Sixth judicial circuit could have been held at said time under the law creating said office,' and concludes his return by requesting the court to speedily hear and determine whether he, the respondent, or the said Charles H. Mayer, is lawfully entitled to said office. Upon the filing of this return the Attorney General filed his motion for judgment on the pleadings."

Culver, Phillip & Spencer and Chas. H. Mayer, all of St. Joseph, for relator. W. K. Amick, of St. Joseph, for respondent.

WOODSON, J. (after stating the facts as above).

I. Respondent does not state his contentions, but leaves the court to infer what they are from reading certain statutes cited and the case of State ex rel. v. Dabbs, 182 Mo. 359, 81 S. W. 1148, referred to in connection therewith. Such a presentation of a case is extremely unsatisfactory to the writer, for the reason that he is always in doubt as to whether his ideas of the case meet with the views of counsel presenting the same. They may have one theory of the case, and the court may have another, and, when the latter expresses its view of the case, it may be wide of those entertained by counsel; and, were it not for the pressing necessity of a speedy determination of the case, we would feel inclined to seek more light upon that subject, but, under the conditions and circumstances surrounding the case and the parties thereto, we deem it advisable to proceed with the case in the light cast before us.

The statute cited and relied upon by respondent reads as follows: "Section 1. From and after the approval of this act, the Twelfth judicial circuit, now comprising the counties of Buchanan and Dekalb, shall consist of the county of Buchanan, and be composed of two divisions and two judges. Each of said judges shall separately try causes and perform all the duties and exercise all the powers imposed upon and given to circuit judges. The divisions of said circuit shall be numbered `circuit court division number one,' and `circuit court division number two.' The circuit judge of the Twelfth judicial circuit as now composed shall continue in office until the expiration of the term for which he was elected, and shall preside over circuit court division number one. Upon the taking effect of this act the Governor shall appoint an additional circuit judge, who shall preside over circuit court division number two, and who shall continue in office until January 1st, 1891, and receive the same salary now paid to the judge of the Twelfth judicial circuit, and to be paid in the same manner. At the general election to be held in November, 1890, and at the general election to be held every six years thereafter, the additional circuit judge provided for in this act shall be elected. All judges of said circuit shall enter upon the performance of their duties on the first Monday in January next ensuing their election." Laws of 1889, p. 74.

The respondent's view of that statute is...

To continue reading

Request your trial
33 cases
  • State v. Duncan
    • United States
    • Missouri Supreme Court
    • 2 April 1915
    ... ... Co., 151 Mo. 162, 52 S. W. 243; State ex rel. v. Pearcy, 44 Mo. 159; State ex inf. v. Kansas City, 233 Mo.loc. cit. 171., 134 S. W. 1007; State ex rel. v. McSpaden, 137 Mo. 628, 39 S. W. 81; State ex inf. v. Corcoran, 206 Mo. loc. cit. 10, 103 S. W. 1044, 12 Ann. Cas. 565; State ex inf. v. Amick, 247 Mo. loc. cit. 280, 152 S. W. 591; State ex rel. v. Wright, 251 Mo. 325, 158 S. W. 823. After a somewhat exhaustive search we have been able to find only some eight or ten cases wherein the Attorney General, filing of his own initiative informations in the nature of quo warranto, has styled the ... ...
  • State ex rel. Aquamsi Land Co. v. Hostetter
    • United States
    • Missouri Supreme Court
    • 7 February 1935
    ... ... United States, 149 Fed. 164, 79 C.C.A. 114. (2) Nor did the Schedule of 1924 repeal that of 1875 by implication. (a) Repeals by implications are not favored by or allowed except in those cases in which the legislative intent is plain and unambiguous. State ex inf. Major v. Amick, 247 Mo. 271, 152 S.W. 591; Raymore v. Special Road District, 212 Mo. 551, 111 S.W. 472; State ex rel. Chillicothe v. Gordon, 233 Mo. 383, 135 S.W. 929; State ex rel. Holliday v. Rinke, 140 Mo. App. 645, 121 S.W. 159; Ferrill v. Keel, 105 Ark. 380, 151 S.W. 269; Jenner v. Shope, 205 N.Y. 66, 98 ... ...
  • State ex rel. Aquamsi Land Co. v. Hostetter
    • United States
    • Missouri Supreme Court
    • 7 February 1935
    ... ... 164, 79 C. C. A. 114. (2) Nor did ... the Schedule of 1924 repeal that of 1875 by implication. (a) ... Repeals by implications are not favored by or allowed except ... in those cases in which the legislative intent is plain and ... unambiguous. State ex inf. Major v. Amick, 247 Mo ... 271, 152 S.W. 591; Raymore v. Special Road District, ... 212 Mo. 551, 111 S.W. 472; State ex rel. Chillicothe v ... Gordon, 233 Mo. 383, 135 S.W. 929; State ex rel ... Holliday v. Rinke, 140 Mo.App. 645, 121 S.W. 159; ... Ferrill v. Keel, 105 Ark. 380, 151 S.W. 269; ... ...
  • State ex rel. Bothwell v. Green
    • United States
    • Missouri Supreme Court
    • 21 April 1944
    ... ... 748. (4) The filling of ... vacancies in the office of collector of revenue of Pettis ... County, Missouri, and the time of electing a successor of ... such appointee is controlled by Section 11509, R.S. 1939 ... Sec. 11509, R.S. 1939; Sec. 3896, R.S. 1909; State ex inf ... Major v. Amick, 247 Mo. 271; State ex inf ... Barker v. Koeln, 192 S.W. 748; State ex inf ... Barrett v. McClure, 253 S.W. 743; State ex inf ... Hadley v. Herring, 208 Mo. 708. (5) The "first ... ensuing general election" as used in Sec. 11509, R.S ... 1939, means the first general election in point of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT