The State Ex Inf. Crow v. Smith

• Decision Date: 05 December 1899
• Citation: 54 S.W. 221,152 Mo. 512
• Parties: The State ex inf. Crow, Attorney-General, v. Smith
• Court: Missouri Supreme Court

54 S.W. 221

152 Mo. 512

The State ex inf. Crow, Attorney-General, v. Smith

Supreme Court of Missouri

December 5, 1899

Writ of ouster awarded.

Edward C. Crow, Attorney-General, and Jesse A. McDonald for relator.

(1) Taking the oath of office by respondent, appointing a clerk of the court, and demanding possession of all the dockets and records thereof, is a sufficient user of the office to sustain an information in quo warranto. State ex rel. v Graham, 13 Kan. 136; State ex rel. v. Meek, 129 Mo. 431. (2) An office of justice of the peace in the city of St. Louis is not vacant so long as it is occupied in the manner provided by section 37, article VI, and section 5 article XIV, Constitution 1875, and the Act of 1891 (Laws 1891, p. 175), by an incumbent who is legally qualified to exercise the powers and discharge the duties pertaining thereto. A failure of the people to make a choice through any casualty at the regular election does not create a vacancy. State ex rel. v. Jenkins, 43 Mo. 264; Com. v Hanley, 9 Pa. St. 513; Eddy v. Kincaid, 28 Oregon 560; People ex rel. v. Edwards, 93 Cal. 156; People v. Lord, 9 Mich. 231; Carr v Wilson, 3 L. R. A. 68; Lawrence v. Hanley, 84 Mich. 404; State ex rel. v. McKee, 69 Mo. 504; Badger v. U. S. ex rel., 93 U.S. 602; State ex rel. v. Thompson, 38 Mo. 193; People ex rel. v. Hardy, 8 Utah 74; State ex rel. v. Meilike, 81 Wis. 575; State ex rel. v. Harrison, 113 Ind. 437; State ex rel. v. Darby, 12 Ohio C. C. Rep. 235; Gosman v. State ex rel., 106 Ind. 203; Ijams v. Duvall, 85 Md. 259; State ex rel. v. Marr, 68 N.W. 9; State ex rel. v. Compson, 54 P. 349; Koerner v. State ex rel., 148 Ind. 167; State ex rel. v. Henderson, 4 Wyoming 437; State ex rel. v. Seay, 64 Mo. 101; Sparks v. Bank, 3 Del.Ch. 296; People ex rel. v. Fritchie, 28 N.Y.S. 600; Kimberlin v. State ex rel., 130 Ind. 122; State ex rel. v. Linkshauer, 142 Ind. 195; State Savings Bank v. Hunt, 72 Mo. 601; State ex rel. v. Smith, 87 Mo. 160; State ex rel. v. Ranson, 73 Mo. 92; Meyer v. Culver, 35 P. 984; Brady v. Howe, 50 Miss. 622; McCrary on Elections (4 Ed.), sec. 349.

George E. Smith for respondent.

(1) The act of 1891 (Laws 1891, p. 175), fixes the official term of a justice elected under it, at four years flat. Both the beginning and the end of the term are fixed, and the interval between is exactly four years. The language of the first section is: "There shall be elected on the general election day A. D. 1894, and every four years thereafter, one justice," etc. This limits the official term to four years. There is no provision in the act that a justice shall hold over until his successor is elected and qualified. The seventh section of the act fixes the term of a person appointed by the judges to fill a vacancy. In such case it is for "the unexpired term, and until his successor be qualified." This seventh section is clearly within the grant of power contained in art. IV, sec. 37 of the Constitution. (2) The term of Haughton expired November 8, 1898. The written appointment given to Haughton by the judges conformed to the law. It was, "to fill the unexpired term of said Patrick Sheehan." But his commission issued by the mayor under that appointment reads, "for said expired term ending on the first Tuesday in November, 1898 . . . .and until his successor shall be duly elected and qualified." Thus, the commission attempts to amend the statute under which the appointment was made by extending the term beyond that authorized by law. (3) The duration of the term of a public officer can not be extended by his commission beyond the limit fixed by the law under which he was appointed. State ex rel. v. Perkins, 139 Mo. 116. No successor was chosen to succeed Haughton at the general election held November 8, 1898. That election resulted in a tie vote, and no choice between Griffin and Kramer. "The Constitution does not provide how tie votes for justices of the peace shall be settled, and does not authorize the General Assembly to make any such provision. It leaves it with the people to elect, or some officer to appoint, as may be regulated by law." State ex rel. v. Kramer, 150 Mo. 89. (4) Respondent was lawfully appointed on June 9, 1899, to succeed Haughton. His official term under his appointment had expired on November 8, 1898, seven months before. No one had been chosen to succeed him at the general election then held. No further election could be held under the act until the general election in November, 1902. Of course the office was not vacant in the sense that no one was occupying it, but it was vacant in the legal sense, in that the incumbent was holding over after his term had fully expired, by sufferance, a mere tenant at will of the appointing power. "The fact that the incumbent remains clothed with official authority, in furtherance of a wise provision of public policy and public law, can not enlarge the boundaries of his official term, or arrest the operation of the power of appointment or election." State ex rel. v. Thomas, 102 Mo. 91; State ex rel. v. Stonestreet, 99 Mo. 361; State ex rel. v. Manning, 84 Mo. 661; State ex rel. v. Spitz, 127 Mo. 248; State ex rel. v. Powles, 136 Mo. 376; State ex rel. v. Perkins, 139 Mo. 106; State to use v. Fulkerson, 10 Mo. 681; State ex rel. v. Ewing, 17 Mo. 515; State ex rel. v. Emerson, 39 Mo. 80; State ex rel. v. Conrades, 45 Mo. 45; State ex rel. v. McGrath, 64 Mo. 139.

MARSHALL, J. Gantt, C. J., and Burgess, Brace and Valliant, JJ., concur; Robinson, J., dissents; Sherwood, J., absent.

OPINION

In Banc.

Quo Warranto.

MARSHALL J.

-- 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 ex inf. v. Kramer, 150 Mo. 89, 51 S.W. 716.] Thereafter on the ninth 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 8th, 1898," and further reciting that in making such appointment they acted pursuant to the Act of April 23, 1891 (Laws 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.

I.

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 ninth of June, 1899, then those judges, under the power conferred upon them by section 7 of the Act of 1891 (Laws 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 XIV 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,...