State v. Spitz

• Decision Date: 05 March 1895
• Citation: 127 Mo. 248,29 S.W. 1011
• Parties: STATE ex rel. BROWN, Prosecuting Attorney of Jackson County, v. SPITZ.
• Court: Missouri Supreme Court

29 S.W. 1011

127 Mo. 248

STATE ex rel. BROWN, Prosecuting Attorney of Jackson County, v. SPITZ.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

JUSTICE OF THE PEACE — APPOINTMENT TO FILL VACANCY — DURATION OF TERM.

Under Rev. St. 1889, § 6090, providing that "at the general election in 1890, and every four years thereafter, there shall be elected a justice of the peace, who "shall hold his office for four years, and until his successor is elected and qualified," and section 6096, providing that a vacancy occurring in the office of justice of the peace shall be filled by the appointment of one "who shall hold his office until the next general election of county officers," the term of one appointed in 1892 to fill a vacancy expires at the general election of county officers in 1894.

Quo warranto proceedings, upon the relation of Marcy K. Brown, prosecuting attorney of Jackson county, against Benjamin Spitz, to test the right of defendant to exercise duties of justice of the peace. Writ of ouster denied.

Geo. F. Ballingal, Jos. R. Edwards, John W. Beebe, and M. T. C. Williams, for relator. Henry Wollman, John L. Peak, R. E. Ball, and Alex. New, for respondent.

GANTT, P. J.

This is a proceeding by an information in the nature of a quo warranto, to test the right of Benjamin Spitz to exercise the duties of justice of the peace within and for the Sixth district of Kaw township, in Jackson county, Mo., under and by virtue of an election held therefor at the general election held in said township in November, 1894. In March, 1890, the county court of Jackson county, Mo., divided Kaw township of said county into eight justices' districts, pursuant to the requirements of section 6090 of the Revised Statutes of 1889. At the general election in 1890, according to the provisions of section 6090, John L. Ganzhorn was elected justice of the peace in the Sixth district of Kaw township, and duly qualified, and held the office until January, 1892, at which time he resigned. A vacancy thus being brought about, the county court, under authority of section 6096 of the Revision of 1889, appointed and commissioned Ross W. Latshaw to supply the same, and, at the next general election of 1892, Latshaw was a candidate for justice, and received the highest number of votes, and was commissioned, and continued to hold the office until the next general election, in 1894. At that election, respondent, Benjamin Spitz, was a candidate for said office of justice of the peace, and, receiving a majority of the votes over his opponent, duly qualified for said office, and was commissioned by the county court for four years. The writ in this cause was issued at the relation of the prosecuting attorney to test respondent's right to hold the said office.

The question to be decided is, was the election for a justice of the peace in said Sixth district in November, 1894, a void election? The statutes upon which relator bases his claim to oust respondent from the office in question are sections 6090, 6096, 6100, of the Revised Statutes of 1889, and the constitutional provisions to be found in section 5 of article 14, and section 37 of article 6, of the constitution of this state. Section 6090 provides for the division into districts of all townships containing, or that may hereafter contain, a city of 100,000 inhabitants, and less than 300,000 inhabitants, and then commands that "at the general election in 1890, and every four years thereafter, there shall be elected in each of said districts, by the qualified voters thereof, one justice of the peace, who shall possess the qualifications required by law for other justices of the peace, shall take the same oath, possess the same jurisdiction, and shall hold his office for four years and until his successor is elected and qualified, and who shall be a resident of and keep and maintain his office in the district for which he is elected. The persons now holding the offices of justices of the peace in townships affected by this article shall continue to perform the duties of their respective offices until the general election of 1890, at which time one justice of the peace for each district, as herein provided, shall be elected, after which time there shall be no other justices of the peace in townships affected by this act, except as herein provided for." No provision is made in this section for filling vacancies. Section 6096 provides: "When a vacancy occurs in the office of justice of the peace, the county court of the county in which such vacancy occurs may supply the same by the appointment of some person competent and qualified, who shall hold his office until the next general election of county officers, and until his successor is elected, commissioned and qualified." Section 6100 provides: "Justices of the peace are to be commissioned by the county court, and shall hold their offices for four years, and until their successors are elected and qualified."

Counsel for...