State v. Smith

• Decision Date: 05 December 1899
• Citation: 152 Mo. 512,54 S.W. 221
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CROW, Atty. Gen., v. SMITH.

54 S.W. 221

152 Mo. 512

STATE ex rel. CROW, Atty. Gen., v. SMITH.

Supreme Court of Missouri.

December 5, 1899.

JUSTICES OF THE PEACE—TIE IN ELECTION— VACANCY—APPOINTMENT—TERM.

1. Under the constitution of Missouri (article 14, § 5), providing that all officers, elected or appointed, shall hold during their terms and until their successors shall be duly elected or appointed and qualified, there is no vacancy where an election of a justice of the peace has resulted in a tie, and in such case an appointment to fill such office under Acts 1891, p. 176, § 7, providing that, when a vacancy occurs in said office, it shall be supplied by the judges by appointment, is invalid.

2. Under Acts 1891, p. 175, providing that in cities of 300,000 inhabitants the election for justices of the peace be held in 1894, and every four years thereafter, the intention being to secure uniformity in the terms of office, an election in St. Louis, in 1898, having resulted in a tie, and being, therefore, a nullity, no other election can be held until 1902, and the term of the justice in office continues until that time.

Robinson, J., dissenting.

In banc.

Quo warranto proceedings by the state, on the information of Edward C. Crow, attorney general, against George E. Smith, to oust defendant from office. Writ of ouster awarded.

This is a proceeding by quo warranto, instituted in this court by the attorney general ex officio to oust defendant from the office of justice of the peace of the Fourth district in the city of St. Louis. The facts are these: At the regular election in 1894 Patrick Sheehan was elected, and thereafter duly qualified as the justice of the peace for said district. Before the expiration of his regular term of four years he died, and in May, 1896, Richard B. Haughton was regularly appointed to fill the vacancy thus occasioned, and thereafter duly qualified, and was commissioned to fill the unexpired term. At the next regular time for electing justices of the peace, to wit, at the regular election in 1898, James Griffin and Siegmund L. Kramer were the regular nominees for said office. The election resulted in a tie vote. Afterwards the mayor of St. Louis appointed Kramer to said office upon the theory that in St. Louis he was vested with the powers of the county courts, and that in case of a tie vote he was entitled to "decide" the tie. Upon quo warranto this court denied the validity of the appointment, and ousted Kramer from the office. State v. Kramer (Mo. Sup.) 51 S. W. 716. Thereafter, on the 9th of June, 1899, the judges of the circuit court, the St. Louis court of criminal correction, and the probate court in St. Louis appointed the defendant to said office, reciting in the order of appointment: "Having been duly notified that there was a vacancy in the office of justice of the peace of the Fourth justice of the peace district, caused by a failure to elect at the last general election, Tuesday, November 8, 1898;" and further reciting that in making such appointment they acted pursuant to the act of April 23, 1891 (Acts 1891, p. 175). The mayor of the city of St. Louis, upon the faith of such appointment, thereupon commissioned the defendant as such justice of the peace "for the unexpired term ending on the first Tuesday after the first Monday in November, 1902, unless sooner removed from office, and until his successor shall be duly elected and qualified." The defendant thereupon attempted to enter upon the duties of the office, and has ever since been attempting to exercise its functions. At all times, however, since his appointment in 1896 said Haughton has continued to act as justice of the peace for said district, refusing to recognize the termination of his term by the election and qualification of his successor, and refusing also to turn over the records of said office to any one.

E. C. Crow, Atty. Gen., and Jesse A. McDonald, for relator. Geo. E. Smith, in pro. per.

MARSHALL, J. (after stating the facts).

This case lies within narrow limits. If the office of justice of the peace for the Fourth district in the city of St. Louis was vacant, as recited by the judges who appointed defendant, on the 9th of June, 1899, then those judges, under the power conferred upon them by section 7 of the act of 1891 (Acts 1891, p. 176), had the power to appoint the defendant, and his title to the office is good; otherwise not. In the Kramer Case, supra, it was held that in case of a tie vote there was no legal election, and it follows that, if there was no legal election in 1898 for the office in question, no successor has yet been legally elected to succeed Haughton, for he was appointed in 1896, under section 7 of the act of 1891, to fill Sheehan's unexpired term, which ended at the regular election in 1898, and until his successor should be legally elected, as that section provides such appointees shall hold. There is no merit in defendant's contention that under the act of 1891 justices of the peace in St. Louis hold for a fixed term of four years, and not until their successors are elected and qualified. True, the first section of that act requires an election at the general election in 1894 and every four years thereafter, and does not prescribe that the person so elected shall hold until his successor is elected; but such a provision was not necessary in the statutes to accomplish this result, for section 5 of article 14 of the constitution of Missouri provides: "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified." There is no contrary provision in the act of 1891; hence Haughton's term continued until the regular election in 1898, and also until his successor should be duly elected and qualified; and such continuance after the election in 1898 was as much a part of his term as that which preceded that election. State v. Ranson, 73 Mo., loc. cit. 92. The appointment of defendant by the judges named was expressly predicated upon the theory that a failure to elect a successor to Haughton at the regular election in 1898 ipso facto created a vacancy in that office. This is a misapprehension of the law in this state. Whatever may be the rule in other states under their constitutions and statutes, it has been the settled law in this state ever since the decision in State v. Lusk, 18 Mo. 333, that the failure to elect a successor to an office at the regular time for holding an election for that office does not create a vacancy in such office, and does not, therefore, authorize any one to appoint a successor, and that if a person is so appointed as such successor he acquires no title. State v. Ranson, 73 Mo., loc. cit. 91, 94, 95; State v....