State v. Blakemore

• Decision Date: 23 March 1891
• Citation: 104 Mo. 340,15 S.W. 960
• Parties: STATE ex rel. SANDERS v. BLAKEMORE.
• Court: Missouri Supreme Court

15 S.W. 960

104 Mo. 340

STATE ex rel. SANDERS v. BLAKEMORE.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

CLERK OF COURT — SUSPENSION — RESIGNATION — APPOINTMENT BY GOVERNOR.

Rev. St. Mo. 1879, § 630, provides that any court may suspend its clerk for misdemeanors in office until a trial can be had, and appoint a temporary clerk, who "shall continue in office until the regular clerk shall resume his office, or a successor shall be elected." Section 615 provides that when any vacancy shall occur in the office of any clerk of a court of record by death, resignation, removal, or otherwise, the governor shall appoint some eligible person, who shall discharge the duties of the office until the next general election. Held that, after the appointment of a temporary clerk by the court, the resignation of the suspended clerk did not create a vacancy to be filled by the governor.

Application for quo warranto.

John M. Wood, Atty. Gen., and Hough & Hough, for relator. Jas. Carr and J. A. Carr, for respondent.

BRACE, J.

This is an original proceeding in this court by information in the nature of quo warranto to oust the respondent from the office of clerk of the circuit court of Dunklin county. The case stands on demurrer to the return to the original writ. It appears from the return that on the 5th day of December, 1888, the judge of the circuit court of Dunklin county suspended William G. Bragg, Jr., the clerk of said court, from office, on charges of misdemeanor in office, and appointed the respondent temporary clerk of said court, who thereupon qualified and entered upon the discharge of the duties of said office, and remains in possession of the same. Pending said charges and two indictments found against Bragg by the grand jury for such misdemeanors in office, he, on the 22d of January following, tendered his resignation of said office to the governor, who, in entire ignorance that said charges and indictment were pending against said Bragg, accepted said resignation, and on the same day appointed the relator to said office. The suspension of Bragg and the appointment of the respondent by the judge were by virtue of the following clause in section 630, Rev. St. 1879: "When any court or the judge, or a majority of them in vacation, shall believe from their own knowledge, or from the information of others, on oath or affirmation, that the clerk of the court in which they preside has been gulity of a misdemeanor in office, they shall give notice thereof to the attorney general or prosecuting attorney, stating the charges against such clerk, and requiring him to prosecute the same; and they may suspend such clerk from office until a trial can be had, and appoint a temporary clerk, who shall possess the same qualifications, take the same oath, and give like bond, as other clerks, and who shall possess the same power, perform the same duties, and receive the like fees as other clerks, and shall continue in office until the regular clerk shall resume his office, or a successor shall be elected." Section 635 of the same act provides that, if the clerk against whom the charges are preferred shall be found guilty thereof, he shall be removed from his office, and be fined; and section 636, that if he be acquitted he shall be reinstated in his office. Section 614 of the same act provides that the clerks of all courts of record except the supreme court and St. Louis court of appeals, and except as otherwise provided by law, shall be elected by the qualified voters for a term of four years. The respondent contends that by virtue of his appointment, qualification, and entering upon the discharge of the duties of said office under the provisions of this act he is entitled to remain in the discharge of the duties, and in the receipt of the emoluments thereof, until either the regular clerk, being reinstated, shall resume his office, or "a successor shall be elected;" that, as neither of these contingencies has happened, he is in lawful possession of the office, and plaintiff's action cannot be maintained. The relator contends that Bragg, being the regular clerk of said court, had the right to resign his office, and that, the governor having accepted his resignation, said office became vacant; and, as by section 615 of the same act it is provided that "when any vacancy shall occur in the office of any clerk of a court of record by death, resignation, removal, refusal to act, or otherwise, it shall be the duty of the governor to fill such vacancy by appointing some eligible person to said office, who shall discharge the duties thereof until the next general election, at which time a clerk shall be chosen for the remainder of the term, who shall hold his office until his successor is duly elected and qualified, unless sooner removed," the governor having appointed and commissioned relator clerk of said court, and he having duly qualified as such, he is the lawful clerk of said court, and entitled to the possession of said office, its powers, and emoluments.

There has never been any question in this country but that a civil officer has a right to resign his office. He had that right at common law, and it is recognized in our constitution. The only contrariety of opinion upon the subject has been as to whether an acceptance was necessary to give it complete effect. As the resignation in this case was accepted, it is not necessary to enter into that discussion. We have been able to find no case, and upon principle we can see no reason why, although suspended from the performance of the functions, he may not resign, whatever right he may have in and to the office to which he holds the commission. But by such resignation he could not avoid the consequence of any misfeasance while in office, or deprive another of any right the law may have conferred upon him in respect of such office. The resignation of Bragg and its acceptance by the governor did not ipso facto confer upon the latter the power to appoint the relator to the office. A vacancy must occur by the resignation in order to...