State v. McKay

• Citation: 155 S.W. 396,249 Mo. 249
• Parties: STATE ex inf. MAJOR, Atty. Gen., v. McKAY.
• Decision Date: 28 March 1913
• Court: United States State Supreme Court of Missouri

155 S.W. 396

249 Mo. 249

STATE ex inf. MAJOR, Atty. Gen., v. McKAY.

Supreme Court of Missouri.

March 28, 1913.

1. COURTS (§ 57)—STENOGRAPHERS—STATUTORY PROVISIONS—"TERM."

Under Rev. St. 1909, § 11244, authorizing the judges of circuit courts for counties having a population of more than 45,000 and less than 150,000 inhabitants to appoint an official stenographer for each court or each division thereof, and providing that such stenographer shall hold his office during the term of the judge appointing him, the "term" of the circuit judge appointing such stenographer is the time during which he actually serves, and not the full six years for which he is elected; and hence, where a judge resigns, the stenographer's term of office terminates, and the judge elected to fill the vacancy may appoint a stenographer for his term.

2. OFFICERS (§ 49)—TERMS—CONSTITUTIONAL AND STATUTORY PROVISIONS.

Where a statutory or constitutional provision fixing or limiting the duration of an official term is ambiguous, that interpretation should be given it which limits the term to the shortest time.

In Banc. Original quo warranto proceeding by the State, on information of Elliott W. Major, Attorney General, against William McKay. Writ denied.

John T. Barker, Atty. Gen. (Thomas B. Allen, of St. Joseph, and Broaddus & Crow, of Kansas City, of counsel), for relator. Culver & Phillip, of St. Joseph, for respondent.

GRAVES, J.

The facts of this case are so succinctly, briefly, and fairly stated by counsel for respondent, McKay, that I adopt their statement. Such statement reads: "This is a proceeding by quo warranto, brought by the Attorney General against William M. McKay, respondent, to require said respondent to show by what authority he holds and exercises the duties of the office of official stenographer of Division No. 2 of the circuit court of Buchanan county, Sixth judicial circuit. The undisputed facts, as disclosed by the information and answer and return, are as follows: At the general election held in November, 1908, one Lucien J. Eastin was duly elected judge of Division No. 2 of said court for a term of six years, and duly qualified and entered upon the discharge of his duties on January 1, 1909, following his election. On the 4th day of January, 1909, Judge Eastin duly appointed Harry K. Ford as official stenographer of said court, and said Ford on said date qualified as such stenographer, and from said date to the 4th day of January, 1913, has been the qualified and acting official stenographer of said court. On January 3, 1911, Judge Eastin resigned his office, and on said date William K. Amick was appointed as his successor by the Governor. Judge Amick qualified and entered upon the discharge of his duties and so continued until the 31st day of December, 1912, when judgment of ouster was entered against him in a proceeding similar to this in this court. During the time Judge Amick served as such judge the said Ford continued to serve as stenographer without any appointment other than that made by Judge Eastin. At the general election held on November 6, 1912, Charles H. Mayer was elected to said office to fill the vacancy caused by Judge Eastin's resignation, to hold for the remainder of the term ending on December 31, 1914, and his right to the office for the time stated was confirmed by this court in the case above mentioned. On the first day Judge Mayer held said court, to wit, January 4, 1913, he appointed the respondent, McKay, as official stenographer for said court, duly entered of record in said court an order to that effect, and the respondent duly qualified and since said time has been acting as such stenographer. The case is for determination on the motion filed by information for judgment on the pleadings."

The statute under which appointments are made in Buchanan county reads (section 11244): "For the purpose of preserving the record in all cases for the information of the court, jury and parties, and for expending the public business, the judges of the circuit courts of the state of Missouri, for counties having a population of more than forty-five thousand and less than one hundred and fifty thousand inhabitants, shall appoint an official stenographer for each court or each division of said court, who shall be well skilled in the art of stenography, and shall have had at least three years' actual practice in court reporting. Such stenographer shall be a sworn officer of the court, and shall hold his office during the term of the judge appointing him." The last clause of this section, "and shall hold his office during the term of the judge appointing him," is the real bone of contention. Other side suggestions, if necessary, will be noted in the course of the opinion.

1. That there is an ambiguity in this statute is clearly evidenced by the well-defined, diverse views of contending counsel, as well as the diverse views of members of this court. We usually do not differ where the legislative act is clear and unambiguous. This statute is uncertain, indefinite, and ambiguous. In such case there is at least one well-defined preliminary rule of construction. This preliminary rule is stated in 23 American and English Enc. of Law, p. 409, thus: "If a statute or constitutional provision fixing or limiting the duration of an official term is ambiguous, that interpretation should be followed which limits the term to the shortest time." So, too, 29 Cyc. 1396 announces the rule thus: "Where the statute fixing the term is uncertain, that interpretation should be followed which limits the term to the shortest period."

The same idea is expressed by Mechem on Public Officers (Ed. of 1890) paragraph 390, in this language: "Where the statute fixing the term is uncertain, that interpretation should be followed which limits the term to the shortest period." This rule may have some application to the case at bar as we proceed later to discuss this statute. It is at least a side light in the construction of a statute which, we think, is ambiguous as to the actual term of the office attempted to be created. The language of the statute is such that we must try to seek the legislative intent from its face. This act we take next.

2. We come now to the statute itself. It says, "and shall hold his office during the term of the judge appointing him." Does this mean that the stenographer goes out when the judge making the appointment goes out, or does it mean that the stenographer holds for the term for which the appointing judge was elected? Judges of the circuit court are elected for a term of six years, and if the statute means that his appointment holds for that term, irrespective of the holding by the judge himself, the respondent has no standing here. If, on the other hand, the statute means that the stenographer shall only hold so long as the appointing judge holds, then McKay is right and the relator wrong. What is meant by "the term of the judge appointing him" as used in the statute? An answer solves this case. To my mind one's term of office does not necessarily refer to the time, in years, for which he was elected. That elective term may be sooner terminated. Death may terminate it. Resignation may terminate it. Removal may terminate it. However the elective term may be terminated, in ordinary parlance we speak of the time actually served as "the term" of the particular officer. That which remains we speak of as "the term" of his legal successor. Had the Legislature desired to fix the term of the stenographer more definitely, it no doubt would have done so. That body knew what we all know that the court stenographer is much more closely connected with the judge than any other official. He receives the dictations and writes the official and other letters of the judge. The judge must have confidence in him, or he is at a loss to know what to do in signing bills of exceptions wherein there is a dispute. In fact, above all others the stenographer is and should be closer to the judge than any other court official. These things the lawmakers knew when they enacted the law now up for construction. The lawmaking body never intended that there should be a court stenographer not in full accord with the judge then presiding over the court. The language used may be ambiguous and of doubtful meaning, when read in cold type, but the intent, to my mind, is plain. That intent was that the stenographer appointed by any individual judge should only serve so long as that judge served. If by death "his term" was ended, the stenographer appointed by him went with him. So, too, in case of resignation or removal. In this case, when Judge Eastin resigned, his (Eastin's) term expired. He had no further term of service. With his term likewise expired the term of his stenographer, Mr. Ford. If Ford was permitted to hold on longer, it was a pure matter of grace, and not a matter of law. Judge Amick could have appointed his successor. Because Judge Amick did not see fit so to do does not preclude Judge Mayer from naming his own stenographer. The legal vacancy was there when Judge Mayer assumed office. This statute never contemplated that the sitting judge should not have a stenographer of his own choosing. This without reference to what his predecessor in office had done during "the term" of his service.

Counsel for respondent have carefully collected a mass of correlative matter showing that the trend of legislative thought is along the line above suggested. We have compared the statutes and feel that counsel speak correctly. They say: "The Legislature of this state has been careful in nearly every instance to give the appointing power the right to remove an appointee at pleasure. This is true of the assistants and appointees of the Attorney General (section 971). It is also true of the assistants, clerks, and stenographers appointed by the circuit attorney (section 980). Of the assistant prosecuting attorneys (sections 1028-1033). ...