The State Ex Inf. Hadley v. Herring

• Decision Date: 24 December 1907
• Citation: 106 S.W. 984,208 Mo. 708
• Parties: THE STATE ex inf. HADLEY, Attorney-General, ex rel. WAYLAND, Appellant, v. HERRING
• Court: Missouri Supreme Court

106 S.W. 984

208 Mo. 708

THE STATE ex inf. HADLEY, Attorney-General, ex rel. WAYLAND, Appellant, v. HERRING

Supreme Court of Missouri, Second Division

December 24, 1907

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, J. A. Collet and Perry S. Rader for appellant.

(1) The words of section 11 of article 5 of the Constitution declaring that the Governor's appointee "shall continue in office until a successor shall have been duly elected and qualified according to law," mean exactly what they say, no more, no less. The Legislature could not enlarge them to mean the whole of the unexpired term. They mean that the Governor could fill the vacancy by appointment for that part of the term extending up to the election and qualification of the appointee's successor, and that the balance of the term belongs, after his qualifying, to the person elected at the election provided by law for the election of collectors; and, any attempt by section 7028, Revised Statutes 1899, or any other statute, to extend the tenure of the Governor's appointee beyond the time of the election and qualification of his successor, was an enlargement upon the constitutional limitation, and to that extent was unconstitutional and void. Sec. 11, art. 5 Constitution; 23 Am. and Eng. Ency. Law, 406; Smith v Askew, 48 Ark. 82; Westbrook v. Rosborough, 14 Cal. 182; State ex rel. v. Thomas, 10 Kan. 159; Meredith ex parte, 33 Gratt. (Va.) 119; State v. Lyles, 1 McCord (S. C.) 239; State v. Hutson, 1 McCord (S C.) 240; Griebel v. State, 111 Ind. 175; Douglass v. State, 31 Ind. 429; Beale v. State ex rel., 49 Ind. 41; Hale v. Evans, 12 Kan 562; State ex rel. v. Cobb, 2 Kan. 55; Bond v. White, 8 Kan. 340; Biddle v. Willard, 10 Ind. 62; Mannix v. Selbach, 31 Colo. 502; Jones v. Sizemore, 117 Ky. 810; State ex rel. v. Holt, 67 Oh. St. 303; People v. Campbell, 138 Cal. 16; People v. Knopf, 198 Ill. 340; People v. Fitzgerald, 180 N.Y. 269; Parmaster v. State, 102 Ind. 90; Paine on Elections, sec. 208 p. 180; State ex rel. v. Harvey, 8 Oh. Circ. Ct. 599; People ex rel. v. Lord, 9 Mich. 227; Attorney-General v. Burnham, 61 N.H. 594; Opinion to Governor, 25 Fla. 427; State ex rel. v. Murphy, 32 Fla. 138; People v. Hardy, 8 Utah 68; Tillson v. Ford, 53 Cal. 701; State ex rel. v. Chatburn, 63 Iowa 659; Peters v. State Board of Canvassers, 17 Kan. 367; Marshall v. Horwood, 5 Md. 423; Fant v. Gibbs, 56 Miss. 396; Rodwell v. Rowland, 137 N.C. 617. (2) The words "until his successor shall have been duly elected and qualified," whether used in constitutions or statutes, mean that the appointee is to hold the office until an election appertaining to that office is held at which a successor is elected by the people and the qualification of the person elected by giving bond and taking the oath. State ex rel. v. Perkins, 139 Mo. 106; State ex rel. v. Chatburn, 63 Iowa 659; Mechem's Pub. Off., sec. 395; Hench v. State, 72 Ind. 297; Opinion to Governor, 25 Fla. 427; State ex rel. v. Mechum, 31 Kan. 435; Hagerty v. Arnold, 13 Kan. 367; People ex rel. v. Lord, 9 Mich. 227; People v. Palmer, 91 Mich. 283; Loomis v. Coleman, 51 Mo. 21; State ex rel. v. Manning, 84 Mo. 661; State ex rel. v. Conrades, 45 Mo. 47; State ex rel. v. Seay, 64 Mo. 89; Beale v. State ex rel., 49 Ind. 41; State ex rel. v. Ewing, 17 Mo. 515. (3) The statute can neither lengthen nor shorten the tenure fixed by the Constitution. McCrary on Elections, sec. 351; People v. Rosborough, 14 Cal. 180; Howard v. State ex rel., 10 Ind. 99; Commonwealth v. Gamble, 62 Pa. St. 343; People ex rel. v. Ballou, 23 Ill. 547; State ex rel. v. Thomas, 10 Kan. 159; Meredith ex parte, 33 Gratt. (Va.) 119; State v. Hutson, 1 McCord (S. C.) 240; Griebel v. State, 111 Ind. 375; Peters v. State Board of Canvassers, 17 Kan. 367; People v. Knopf, 198 Ill. 340; State ex rel. v. Hall, 67 Oh. St. 303; People v. Fitzgerald, 180 N.Y. 269; State ex rel. v. Plasters, 105 N.W. 1092; People ex rel. v. Bull, 46 N.Y. 58 -- a very illuminating case; People v. Campbell, 138 Cal. 11. (4) The word "until" is a word of limitation. State ex rel. v. Perkins, 139 Mo. 109; People v. Fitzgerald, 180 N.Y. 274. (5) Where the office is an elective one, the reason for the use of the words "until a successor shall have been duly elected and qualified" is apparent. It is against the policy of the law that a public office should remain vacant. The office being elective, the people can fill a vacancy therein only at an election. The constitutional provision (sec. 11, art. 5) contemplates no special elections to fill vacancies, but it does provide for a general election to be held on the first Tuesday after the first Monday in November of all even-numbered years. Sec. 1, art. 8. And section 9203, Revised Statutes 1899, makes the office of collector elective. The purpose of the Constitution, therefore, was that the vacancy should be filled by appointment until the people had an opportunity, in an orderly and regular way (as indicated by the word "duly"), to fill the vacancy by electing some one thereto, who should fill out the balance of the unexpired term. Rodwell v. Rowland, 137 N.C. 622; State ex rel. v. Cobb, 2 Kan. 55; Jones v. Sizemore, 117 Ky. 810. (6) Where doubt exists as to the tenure of one appointed to fill a vacancy in an elective office, the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and right to refill it. Opinion of Judges, 114 N.C. 929; Rodwell v. Rowland, 137 N.C. 623; Wright v. Adams, 45 Tex. 134. (7) The statutes do not extend respondent's tenure to the first Monday in March, 1907. Section 9267, Revised Statutes 1899, is to be considered an exception to section 7028, and it extends the tenure of "all collectors appointed . . . to fill vacancies" only to the qualification of their successors. State ex inf. v. Dabbs, 182 Mo. 359. (8) An extended examination of the original bills in the office of the Secretary of State and of the Session Laws has convinced us that neither section 7028 nor section 9267 was enacted in the manner required by the Constitution, and for that reason both sections are invalid. Section 7028 is first found in the Revised Statutes of 1879, as section 5527. It appears in the Revised Statutes of 1889 as section 4705. Neither the article nor the chapter of which it forms a part was a revised bill in the Revised Statutes of 1889, nor was either a part of a revised bill in the Revised Statutes of 1899. Hence, it comes to us with exactly the validity it had in the Revised Statutes of 1879, no more no less. The mere printing of it in the Revised Statutes of 1889 and of 1899, did not add to its validity, nor take from its validity. Bowen v. Railroad, 118 Mo. 545; Brannock v. Railroad, 200 Mo. 561. Section 5527, Revised Statutes 1879, is a part of a revised bill, and that bill appears as chapter 101 of Revised Statutes of 1879. That chapter is headed "Of Elections." It has 85 sections. The bill is entitled, "An act to amend and revise chapter two, title two of the General Statutes of Missouri concerning Popular Elections." Chapter 2, page 59, of General Statutes of 1865, is headed "Of Popular Elections." Section 46 of that chapter (p. 65, G. S. 1865) provides for the filling of vacancies in the office of judge of the Supreme Court, Circuit Court, Secretary of State, State Auditor, State Treasurer, Register of Lands, Attorney-General, Circuit Attorney, Assistant Circuit Attorney, judge of the criminal and judge of the probate court of St. Louis county, but it says nothing about a vacancy in office of any county officer, and it is a very different statute from section 7028. There is no provision in that chapter in reference to filling vacancies in county offices. It provides that in case of vacancy in any of said offices named, the Governor, if such vacancy "occurred more than twelve months before a general election for such officer, shall issue his writ of election to fill such vacancy. If such vacancy shall occur less than twelve months before a general election for said officer, such vacancy shall be filled by appointment by the Governor, and the person so appointed to such office shall hold his office until his successor shall be elected and qualified." This revised bill makes a radical change in the existing law. Section 5527 of this revised bill took out of the hands of the county court the power to fill vacancies in the office of county collector, assessor and other county offices, and vested that power in the Governor. That of itself was a radical change. It extended the tenure of all persons appointed to fill vacancies, which the existing law terminated upon the election and qualification of their successors, to at least the first Monday in January after the election of their successors, in all cases, and in some cases to the first Monday in March, and it made that extended tenure applicable to all appointees, whether to fill vacancies in a State or a county or a judicial office. That was another radical change, and conferred a privilege of tenure upon an appointee that was not then enjoyed by any officer appointed to fill a vacancy. It took away from the people the right to fill by special election a vacancy in any State or judicial office, if the vacancy occurred more than twelve months before the next general election "for such officer," and vested in the Governor the right to fill the vacancy, not only until the next general election, but until the first Monday in January thereafter or longer. That was another radical change. The existing law made the tenure of the appointee, in all cases, terminate with the election and qualification of his successor; this statute made his tenure extend at least to...