State v. Hostetter

• Citation: 39 S.W. 270,137 Mo. 636
• Parties: STATE ex rel. CROW, Attorney General, v. HOSTETTER.
• Decision Date: 20 February 1897
• Court: United States State Supreme Court of Missouri

39 S.W. 270

137 Mo. 636

STATE ex rel. CROW, Attorney General, v. HOSTETTER.

Supreme Court of Missouri, Division No. 1.

February 20, 1897.

OFFICERS — ELIGIBILITY — VACANCIES — ELECTIONS — STATUTES — REPEAL.

1. Rev. St. 1889, § 4766, as amended by Laws 1893, p. 155, provides that certificates of nomination to be filed with the clerk of county court shall be filed not less than 15 days before election, provided, that if a vacancy in a nomination is caused by death at a later date, the chairman of the party committee of the county may fill the vacancy. Held, that such a vacancy exists on the death within the 15 days of an officer whose successor was not to be chosen at such election, but to fill whose unexpired term some one must be elected; hence there is no conflict between said section as amended and the previously enacted section 1964, requiring a vacancy in the office of a clerk of court, caused by death, to be filled at the next election, regardless of whether it occurred within 15 days thereof, and accordingly the latter section was not impliedly repealed by the former.

2. Rev. St. 1889, § 1964, provides that when a vacancy occurs in the office of a clerk of court the governor shall appoint some one who shall serve until the next general election, at which time a clerk shall be chosen for the remainder of the term. Held that, conceding that the existing ballot law makes no provision for a nomination to fill a vacancy occurring within 15 days of the next election, a vacancy to be filled at such election nevertheless exists where, within the 15 days, a clerk dies.

3. A woman is eligible to the office of clerk of county court, there being no provision in the constitution or statutes expressly requiring such clerk to be a male, and an intent to so require not being shown by the use of the word "his" in Const. art. 8, § 12, declaring who is eligible to office.

Quo warranto by the state on the relation of Edward C. Crow, attorney general, against F. P. Hostetter. On demurrer to the information. Overruled.

E. C. Crow, Atty Gen., Graves & Clark, and Francisco Bros., for relator. Johnson & Lucas, for respondent.

BARCLAY, C. J.

This is an original action in this court to ascertain by what warrant defendant holds the office of clerk of the county court of St. Clair county. The proceeding was instituted by an information of the attorney general in his official capacity. The information contains a full recital of the facts. They have been admitted by the demurrer which defendant has filed. Counsel in this court, with commendable fairness, have waived formalities that might have caused delay, and have submitted the cause for prompt decision upon briefs that have been of great help towards the speedy determination of the controversy.

In the view taken by this division of the court, the following are the decisive facts: Mr. Wheeler was elected clerk of the county court at the general election of 1894 for a term ending in January, 1899. He died October 24, 1896. Two days later the defendant, Mr. Hostetter, was commissioned by the governor to fill the vacancy. He qualified, and entered on the duties of the office, before the general election of November 3, 1896. He now holds the office by virtue of that appointment. At the general election mentioned Mrs. Maggie B. Wheeler and Mr. Hostetter received votes in St. Clair county for the office in question. On the 26th day of October, 1896, Mrs. Wheeler had been declared nominated for said office by the Republican party in said county. Her said nomination had been certified and acknowledged, and the certificate had been duly filed in the office of the clerk of the county court. Her name accordingly appeared (in advance of the election) upon the printed official ballot, as prepared for use at the election. The official ballot contained no other printed name as nominee for said office. The county tickets of the other political parties all showed blanks under the name of the office of clerk of the county court. At the close of the election it was found that Mrs. Wheeler had 1,938 votes for the office, while Mr. Hostetter had received 92. He so certified as county clerk. In due time Mrs. Wheeler received her commission from the governor, and thereupon duly qualified, having complied with all the required forms of law, notwithstanding which the defendant still holds possession of the office. The object of this proceeding is to test his right to do so, from and after January 4, 1897, the date on which Mrs. Wheeler took the last formal step towards qualifying to enter upon the duties of the office. There are two general grounds on which defendant seeks to justify the position he has assumed.

1. Defendant first contends that there was, in legal effect, no vacancy to be filled at the election of 1896. The substance of the argument on that point is that the existing ballot law makes no provision for a nomination to fill such a vacancy occurring within 15 days of the general election; and hence that no election to fill the vacancy could properly be held in the circumstances of this case. But we consider section 1964 a complete answer to that contention, when read in connection with section 4766 as amended in 1893 (Laws 1893, p. 155): "Sec. 1964. Vacancy, How Filled. — 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." A special provision governing the filling of a vacancy in a particular office should be obeyed, even as against a later law on the same general topic, unless the court finds ground to conclude that the later general law was intended to repeal or limit the more particular provision of the prior law. But the terms of section 4766, as amended in 1893, show no intent to repeal any part of section 1964, touching the conduct of an election to fill such a vacancy. The word "vacancy" as it is found in the last proviso of section 4766, no doubt means, as the learned counsel for defendant contend, a vacancy in some nomination. But where, by reason of death, as in this case, a vacancy in an office occurs shortly before a general election at which some one to fill the office for the unexpired term should be chosen, and no one has been nominated to said office, there is a vacancy in the nominations within the meaning of the election law. The omission to make a nomination for an office to be filled at the ensuing election constitutes a vacancy on the ticket, and it is the plain duty of the officers who prepare the official ballots to cause the name of any such office to be printed on the ballot, whether any nomination thereto has or has not been formally certified. Under section 4766 of the election law, such a "vacancy" certainly may be supplied at any time prior to the election, by a nomination authenticated in the mode pointed out by the ballot law. But, even if we should concede that the vacancy caused by the death of Mr. Wheeler happened too late to permit of placing a formal printed nomination on the ballot, under the present ballot law the people would nevertheless have the right to express their choice by writing on the ballot the name of any qualified person whom they desired to designate for any office which the law (section 1964) permitted to be then filled by election. The electors are not restricted to the names or offices printed on the official ballot. People v. Shaw (1892) 133 N. Y. 493, 31 N. E. 512; People v. President of Village of Wappinger's Falls (1895) 144 N. Y. 617, 39 N. E. 641; Sanner v. Patton (1895) 155 Ill. 553, 40 N. E. 290; Cole v. Tucker (1895) 164 Mass. 486, 41 N. E. 681. We hence conclude that the election of a county clerk was properly held at the general...