State v. Lusk

• Decision Date: 31 July 1853
• Citation: 18 Mo. 333
• Parties: THE STATE, at the relation of TREDWAY, v. LUSK.
• Court: Missouri Supreme Court

18 Mo. 333

THE STATE, at the relation of TREDWAY,

v.LUSK.

Supreme Court of Missouri.

July Term, 1853.

1. Under the act of 1845, the failure of the general assembly to elect a public printer did not create a vacancy which the governor could fill by appointment, but the incumbent, who was authorized to hold the office until his successor should be elected and qualified, held over. (Scott J., dissenting.)

Information in the nature of quo warranto. The information stated that, in accordance with the provisions of an act entitled “an act to provide for electing a public printer,” approved March 24th, 1845, John G. Tredway, the relator, was, by the governor, on the 9th of May, 1853, appointed and commissioned public printer of the state of Missouri, and had given bond and qualified according to law; and that the respondent, James Lusk, usurped the office, and refused to deliver up the books and papers belonging thereto.

The respondent, in his answer, averred that, on the 4th day of February, 1851, he was by the general assembly elected public printer for two years from the first day of May, 1851, and until his successor should be duly elected and qualified, and that he gave bond and qualified according to law; and that the general assembly which convened on the last Monday of December, 1852, failed to elect any person to succeed him in the office from and after the first day of May, 1853, whereby he became entitled to hold over.

To this, the relator demurred.

H. A. Garland and J. W. Morrow, for the relator.

The term of office of public printer is fixed, and limited to two years. The words “and until his successor is duly elected and qualified,” do not enlarge the term. At the end of two years, the term of the successor, if he has been elected, begins; if not, then there is a vacancy to be filled by the governor; but that public business might not suffer, the act provided that, in the meantime, the incumbent should continue to perform the duties of the office. This provision cannot be construed to create a new term. The same provision exists in relation to many other offices having a fixed term. The charter of the bank of the state of Missouri provides that the president and directors shall be elected by the general assembly, and hold for two years, and until their successors are duly elected and qualified. The practice has been for the governor to appoint, as if there was a vacancy, whenever the legislature has failed to elect. The words “elected” and “appointed” are interchanged and used synonymously in our constitution and laws. (See sec. 23, art. 4 of constitution.) But if the failure to elect created a new term for the incumbent, then we insist he was required to give a new bond, and having failed to do so within ten days, his office, by the third section of the act, became vacant. The securities in the original bond were not bound after the expiration of two years. (Lord Arlington v. Merrick, 2 Sanders, 411; 4 Henn. & Munford. 208; 1 Leigh, 284; 2 Harr.) Public policy requires that the people should have security for the faithful performance of the duties of public officers, and the act contemplates that there shall be no public printer without a bond.

Leonard and Gardenhire, for respondent.

The term of office is not limited to two years. The act provides that the incumbent shall hold “for two years, and until his successor shall be duly elected and qualified.” The term cannot be for a shorter period than two years, but may for a longer. By the sixth section, the governor's power of appointment is expressly limited to a vacancy. The expiration of two years and the failure of the general assembly to elect, did not create a vacancy. How can it be said that there was a vacancy, when there was a person in the office authorized by law to perform its duties up to the moment when the appointment was made? The governor cannot make a vacancy for the sake of filling it. The words “and until his successor is duly elected and qualified,” not only prevented a vacancy, but were introduced for that very purpose and no other. The policy of our laws is to prevent the occurrence of vacancies, and it is a wise policy. In 1847, an act was passed providing that all public officers in this state should continue in office until their successors were appointed and qualified. It is not claimed that the failure to elect creates a new term, but that the incumbent holds over by the tenure of the office, the term for which he was originally elected not having expired. Whether the securities in the bond of the respondent are bound or not, after the expiration of two years, depends upon the answer to the question whether the term of office is limited to two years. They are bound during the term, whatever it may be. The cases cited decide nothing more than this. If they did, they are not the law; and even if such was the law it only proves that our legislature has blundered, in providing that the incumbent might, in certain contingencies, continue in office for a longer period than his securities are bound.

GAMBLE, Judge, delivered the opinion of the court.

Lusk was elected public printer by the general assembly at the session of 1850, and at the session of 1852 there was a failure to elect a successor by the general assembly. In May, 1853, the governor appointed and commissioned Tredway to fill the office. The present proceeding is for the purpose of removing Lusk from the office.

The act of 24th March, 1845, (R. C. 907,) in its first section declares: “There is hereby established an office to be called the office of public printer.” The second section directs that “a public printer shall be elected at the present session of the general assembly, and at every regular session thereafter, by joint vote of the two houses.” The third section directs “that the president of the senate and speaker of the house of representatives shall furnish the person elected with a certificate of his election, and he shall, within ten days after receiving the same, give bond, take the oath of office, and shall, at the time provided in the act, enter upon the discharge of the duties of his office, and if he fail to do so, his office shall become vacant.” The fifth section provides that “the public printer to be elected at each session of the general assembly, shall hold his office for two years commencing on the first day of May next thereafter, and until his successor shall be elected and qualified; and the public printers thereafter elected, shall hold office for two years and until their successors shall be elected and qualified.” The sixth section provides that, “if the public printer should die, or resign, or if, from any other cause, the office should become vacant, the governor shall appoint a public printer, who shall give bond and qualify, and shall hold his ofe for the same time that the printer in whose stead he shall be appointed would have held.”

These provisions of the act are the only ones which materially affect the question in the present case. In behalf of the State, it is claimed that the office became vacant on the first of last May, in consequence of the failure of the assembly to elect a public printer, and as the office itself continued to exist, the governor, under the ninth section of the fourth article of the constitution, was entitled to fill it by appointment. That section is in these words: “When any office shall become vacant, the governor shall appoint a person to fill such vacancy, who shall continue in office until a successor be duly appointed and qualified according to law.”

On the part of Lusk it is insisted that the governor had no authority to make an original appointment of public printer, because the thirty-second section of the third article of the constitution directs, that, “the appointment of all officers, not otherwise directed by this constitution, shall be made in such manner as may be prescribed by law,” and the law in the present case has prescribed an election by the general assembly as the mode of appointing a public printer. It is next insisted that, as the act itself directs that the person elected by the assembly should hold the office for two years and until a successor should be elected and qualified, the office was not vacant, so as to authorize the governor to fill it by appointment.

It is evident, from this statement, that the only question in the case is, whether the office became vacant on the first day of May last, by reason of the failure to elect a public printer.

It is insisted for the State, that the term for which the office is to be held is two years, and that the additional time, “until a successor is elected and qualified,” is added, merely to prevent the office being without some person qualified to discharge its duties, and does not prevent its being considered vacant for the purpose of its being filled by executive appointment.

There are many cases, both in the constitution and laws, in which the same words are used in prescribing the tenure of offices. The governor shall hold his office for four years, and until a successor be duly appointed and qualified. (Const. art. 4, sec. 3.) Sheriffs shall serve for two years, and until a successor be duly appointed and qualified. (Art. 4, sec. 23.) Constables and many other officers, whose offices are created and regulated by statute, hold them until successors are elected, or appointed and qualified, and by a general act passed 17th February, 1847, it was enacted that all public officers in this state shall continue in office until their successors shall be appointed and qualified. While it may be true, that the design of continuing an incumbent in office, until his successor is duly elected and qualified, is to prevent any interregnum in the office, and to have some person always authorized to discharge its duties, it is also true, that the incumbent, until the qualification of his successor, is as fully in the office, and entitled to all of its...