73 Mo. 421 | Mo. | 1881
On the 4th day of August, 1874, the respondent was elected judge of the probate court of Lafayette county for the term of six years, and was commissioned and qualified and entered upon the discharge of the duties of the office. It is agreed that his term of office expired in August, 1880. At the general election in November, 1880, Jas. B. Hord was elected to said office, and the only question to be determined relates to the validity of that election. If it was authorized by law, Hord is entitled to the office, otherwise respondent holds under his election in 1874, and until a successor shall be duly elected and qualified.
By section 34, article 6, constitution 1875, it is provided : “ The general assembly shall establish in every county a probate court, which shall be a court of record,
The sections of the constitution and statutes above quoted, are all that have any material bearing on the subject. There is no ambiguity in either of the sections of the statute. By the latter it is expressly provided that in every county, where under existing laws, there shall be a judge of probate whose term of office does not expire until the 1st day of January, 1881, there shall be a judge of probate elected for such county at the general election in the year 1880, etc. There can be no election not authorized by law. The language of section 1192 did not authorize the election of a probate judge at the November election 1880, except for those counties the terms of whose probate judges did not expire until the 1st day of January, 1881.
But it is contended that it was the intention of the legislature to provide for an election in every case where the incumbent’s term of office bad expired, either on or before the 1st day of January, 1881, and that the obligation to make such provision was imposed upon the general assembly hy the constitutional provisions above cited. Sec
The sections of the constitution on this subject are not self-enforcing. The constitution does not establish the probate courts, or the uniformity which it requires. Legislative enactments are required to carry those provisions into effect. We cannot amend section 1192 by striking the words “not” and “until” from the proviso and adding other words to make it read that “ in every county where under existing laws, there shall be a judge of probate whose term of office shall expire on or before the 1st day of January, 1881, there shall be a judge of probate elected,” etc. That such are the changes in the reading of that section necessary to support the views of the relator, is conclusive on the question under consideration. The writ is dismissed.