State v. Burkhead

• Decision Date: 28 February 1905
• Citation: 187 Mo. 14,85 S.W. 901
• Parties: STATE ex inf. HADLEY, Atty. Gen., v. BURKHEAD.
• Court: Missouri Supreme Court

85 S.W. 901

187 Mo. 14

STATE ex inf. HADLEY, Atty. Gen., v. BURKHEAD.

Supreme Court of Missouri.

February 28, 1905.

CIRCUIT JUDGES — TERMS OF OFFICE — FILLING OF VACANCIES — THIRTY-FIRST JUDICIAL CIRCUIT.

Act March 31, 1901 (Laws 1901, p. 108), redistricted the state into judicial circuits, and section 1716a created the Thirty-First Circuit. Section 1717 provided that the Governor should appoint a judge therefor, to hold office until the next general election, when his successor should be elected to hold office until the first Monday in January, 1905, after which his successor elected at the general election, 1904, is to hold office in the same manner as other circuit judges, who by section 1749 are given a tenure of six years. Const. art. 6, § 25, declares that circuit judges shall hold office for six years, but section 32 provides that in case of vacancy it shall be filled as provided by law, and article 5, § 11, provides that, when any office shall become vacant, the Governor, unless otherwise provided by law, shall fill the office by appointment. Held, that the period elapsing between the creation of the new judicial district and the regular election for 1904, at which all the judges in the state were to be elected, was a "vacancy," within the meaning of Const. art. 6, § 32, so that under that section, as well as article 5, § 11, the Legislature had power to provide as it did by Act March 31, 1901, § 1717 (Laws 1901, p. 110), for the filling of such vacancy by election for a term of less than six years, and that act was not in conflict with the constitutional provision that circuit judges shall hold office for six years.

In Banc. Quo warranto by the state of Missouri, on information of Herbert S. Hadley, Attorney General, against Asbury Burkhead. Writ of ouster awarded.

H. S. Hadley, Atty. Gen., Martin L. Clardy, Geo. W. Thornsberry, and Edw. J. White, for informant. W. M. Williams, for respondent.

GANTT, J.

This is an original proceeding in this court by the Attorney General against Judge Asbury Burkhead to require said Burkhead to show by what authority he assumes to exercise the duties of the office of judge of the circuit court, within and for the Thirty-First Judicial Circuit of this state.

The return of the respondent pleads, as his warrant for so doing, that the General Assembly of Missouri, by an act approved March 13, 1901, created and established the Thirty-First Judicial Circuit of this state, composed of the counties of Christian, Douglas, Ozark, Stone, and Taney, and provided therein for the election of a judge of said circuit at the general election to be held on the 4th day of November, 1902; that at said election the respondent, Burkhead, was duly elected to said office by the qualified voters of said circuit, and a certificate of his said election was issued to him; that he had all the qualifications prescribed by the laws of this state for the incumbent of said office, setting them out specifically and in detail; that on the 8th day of December, 1902, the Governor of the state of Missouri, by virtue of respondent's election to said office by the qualified voters of said circuit, and in accordance therewith, did, in the name and authority of the state of Missouri, issue to him a commission as judge of the said Thirty-First Judicial Circuit; that he duly qualified on the 16th day of December, 1902, by taking and subscribing an oath to support the Constitution of the United States and the Constitution of the state of Missouri, and to faithfully demean himself in said office, and a certificate thereof was indorsed on said commission; and respondent claims that notwithstanding the Legislature, by the act creating said circuit, attempted to limit the term of the judge elected at the general election in November, 1902, to two years, yet the Constitution fixes said term at six years, and respondent, by virtue of his election, qualification, and commission, is entitled, under the express terms of the Constitution, to hold said office for six years from the 1st day of January, 1903.

To this return the Attorney General filed the following denial:

"Now comes Herbert S. Hadley, who in this behalf represents the state of Missouri, and for reply to the answer of respondent herein admits that at the general election in November, 1902, the respondent, Asbury Burkhead, was elected to the office of judge of the Thirty-First Judicial Circuit of the state of Missouri by the qualified voters of said circuit, and that he received a certificate of election therefor, and a commission from the Governor of Missouri. But your informant denies that respondent was elected to said office for a term of six years, or that he is now rightfully holding said office, and that he is now rightfully exercising the rights, privileges, and duties devolving upon the judge of the Thirty-First Judicial Circuit of the state of Missouri, but alleges that each and every allegation in the respondent's answer to this purport and effect is untrue; that in truth and in fact the respondent was elected to said office of judge of the Thirty-First Judicial Circuit under the provisions of an act of the General Assembly of the state of Missouri approved March 13, 1901, creating said Thirty-First Judicial Circuit of the state of Missouri, and by the provisions of said act it was provided that the term of office for which the respondent was elected and commissioned should begin at the general election held in 1902, and that said term of office should end on the first Monday in January, 1905, and that the said term of office, by the express provisions of said act, did terminate upon the first Monday in January, 1905.

"Your informant further admits that, upon the date alleged in the answer of respondent, Hon. Geo. W. Thornsberry was regularly appointed by the Governor of this state as judge of the Thirty-First Judicial Circuit of the state of Missouri to hold said office until the general election in November, 1902; but your informant further alleges that said Hon. George W. Thornsberry was appointed under the provisions of the same act of the General Assembly of the state of Missouri approved March 13, 1901, under and by virtue of the provisions of which act said Asbury Burkhead was elected at the general election in November, 1902, to serve for a term which it was provided in said act should end on the first Monday in January, 1905.

"Your informant further alleges that at the general election in the year 1904, under the provisions of said act of the General Assembly approved on the 13th of March, 1901, creating said Thirty-First Judicial Circuit, and particularly under the provisions of sections 1717 and 1749, and Hon. John T. Moore was duly elected, and was duly commissioned and qualified, as judge of the Thirty-First Judicial Circuit of Missouri, as the successor of the respondent to said office, and that since the first Monday in January, 1905, the said Hon. John T. Moore has been and now is the duly elected, commissioned, and legally qualified judge of the Thirty-First Judicial Circuit of the state of Missouri, and is now legally and rightfully entitled to exercise the rights and duties of said office; that at the time of the election of said Hon. John T. Moore to said office he was and is now fully and legally qualified for said position, and that he was over the age of thirty years, had been a citizen of the United States for over five years, was a qualified voter of this state for three years next before his election, that he had been regularly admitted to the practice of the law, and was learned in the law, and that he resided in and still resides in said Thirty-First Judicial Circuit.

"Further replying to the answer of the respondent herein, your informant states that, by the terms of said act creating said Thirty-First Judicial Circuit of the state of Missouri, the official term of the respondent was limited as above set forth; that respondent was elected to said office solely by virtue of the provisions of said act of the General Assembly providing for said election; that, proceeding under the provisions of said act, he assumed the duties of said office of judge of the Thirty-First Judicial Circuit, and, acting thereunder for a period of two years, he exercised the duties of said office and enjoyed the rights, privileges, and emoluments thereof, knowing full well at all times that his term of office, by the provisions of said act of the General Assembly of Missouri, was so limited in time; that acting upon the knowledge of the said limitation imposed upon the term of his said office by the express provisions of the act creating said Thirty-First Judicial Circuit, and in recognition of the validity of said limitation, the said respondent became a candidate for nomination for the office of judge of the Thirty-First Judicial Circuit of Missouri before the Republican Judicial Convention of said district which was held at Forsythe, Missouri, on April 11, 1904, which said convention was legally called, under the provisions of the statutes of the state of Missouri, for the purpose of nominating a candidate for the office of judge of the Thirty-First Judicial Circuit of the state of Missouri to be elected at the general election held in 1904 for a period of six years, beginning upon the first Monday in January, 1905; that in said convention before which said respondent was a candidate, and from which he was soliciting said nomination, he was defeated for nomination for said office by the said John T. Moore, who was duly nominated for said office by said judicial convention, and who was at the general election in 1904 duly elected to said office as aforesaid, and who has regularly qualified to discharge the duties of said office as aforesaid, and who is now legally and rightfully entitled to exercise and discharge the duties of said office; that by reason of the above facts the respondent is now estopped from questioning the...