64 Mo. 89 | Mo. | 1876
delivered the opinion of the court.
This is-a proceeding by the State, through the attorney general, to try the right of the defendant to the office of judge of the ninth judicial circuit.
In November, 1868, D. Q. Gale and one Peter B. McCord were candidates for judge of the ninth judicial circuit. On the
These are the facts which appear of record, and about which there is no controversy. The relator in his information alleges that said Gale, for his first term, was duly elected, commissioned and qualified.
The respondent in his answer denies that Gale was elected or commissioned, or that he took the oath of office ; and alleges that he was an intruder and a usurper, and that his usurpation commenced on the first Monday of January, 1869, and continued to the first Monday of January, 1875 ; admits that there was an election in November, 1868, and that Gale and McCord were candidates, but alleges that McCord was then duly elected. He also charges in his answer, that at the date of the writ of election, “a vacancy in fact existed and that said Gale did not in fact perform nor claim to perform, nor assume to perform, nor claim the right to perform the duties of said office; but on the contrary had wholly given up and abandoned said office, and had engaged in the practice of law, as an attorney-at-law, in the several circuit courts of the said ninth judicial district.
To respondent’s answer the relator filed a demurrer, and respondent contends that by the demurrer it is admitted that Gale usurped, and also that at the date of the writ of election he had abandoned the office.
The facts alleged and relied upon in support of the allegation, that Gale was, conclusively show that he was not, a usurper.
With regard to the averment that Gale had abandoned the office, without determining whether there can be an abandonment of an office in this State, otherwise than by resignation, removal, or some other act which the statutes may provide shall vacate an office, we are satisfied that more particularity is required in pleading abandonment than has been observed by the respondent in this case. A circuit judge cannot abandon his office by saying he abandons it, or merely by neglecting to attend to his duties as judge. What amounts to an abandonment of an office (if one can be vacated by abandonment, otherwise tha'n in the manner prescribed by the statute), is a question of law, and the special facts should be stated, in order that the court may" determine whether those facts constitute an abandonment or not.
In immediate connection with the averment of abandonment, it is alleged that “Gale engaged in the practice of his profession” in the counties composing the ninth judicial circuit. If this be stated as the fact relied upon by respondent to show an abandonment it is not sufficient. A circuit judge may practice law, and while by so doing he violates the law and subjects himself to indictment and impeachment, he does not vacate or abandon his office any more than any other conduct, violative of his oath “faithfully to demean himself in his office,” would vacate'or amount to an abandonment of his office.
It is insisted by respondent that this court cannot review the action of the governor in issuing a writ for a special election to fill a vacancy in office which he may determine has occurred, and
The division of the powers of the government into three distinct departments, each to be confided to a separate magistracy, is to be found in the State constitution of every State in the Union, and in nearly, if not all of them, power is given the governor to fill vacancies which occur in office.
The power to fill a vacancy implies the right of the officer to whom it is given to determine when a vacancy exists, if the right to determine that question is not bestowed elsewhere, and the 14th section confers no greater authority upon the governor in this respect than is given him in the power conferred to fill a vacancy.
If the power to fill a vacancy did not carry with it authority to determine when a vacancy exists, and that authority is not given to some person or tribunal, a vacancy could not be filled, and the section would be nugatory. Hence, that provision of the constitution that “the governor, upon being satisfied that a vacancy exists, shall issue a writ of election, etc.,” confers no judicial authority, but merely for convenience authorizes him to determine that question, because the public service might suffer if a vacancy could not be filled until after a judicial investigation be had. He determines it upon ex parte testimony or information that is not technically testimony at all, and surely it was not intended that the rights of incumbents were to be conclusively determined by the governor, by the discharge of the duty imposed upon him by that section.
Nearly every authority cited in the briefs filed by the attorneys in this case, was one in which, on the relation of some officer or citizen,’the act of a governor in filling a vacancy was reviewed by the court, and in nearly all of the State constitutions the provision conferring power upon the governor to fill a vacancy is 'substantially the same as that in our State constitution.
In many of those cases it was determined that the acts of the governors were illegal, and by the judgments of the courts their
Having disposed of these preliminary questions, we come now to the main question in this case: Was there a vacancy.in the office of judge of the ninth judicial district on the first Monday in January, 1875? If there was, the demurrer must be overruled and judgment rendered for defendant.
In November, 1874, McCord was elected. In December following he received his commission, and took and subscribed the prescribed oath of office, and on the 2d day of January, two days before the term for which he was elected commenced, he departed this life. The Constitution of 1865, art. 6, § 14, provides that the circuit judges “shall be elected for the term of six years, but may continue in office until their successors shall be elected and qualified.” The same section also provides that “if any vacancy shall happen in the office of any circuit judge by death, resignation, removal out of his circuit, or by any disqualification, the governor shall, upon being satisfied that a vacancy exists, issue a writ of election to fill such vacancy.”
We are referred to the case of the State vs. Lusk (supra) as an authority in support of the position that the death of McCord before his term commenced created no vacancy. On the 24th day of March, 1845, the General Assembly passed an act establishing the office of public printer, and provided that “a public printer shall bo elected at the present session of the General Assembly, and at every regular session thereafter, by joint vote of the two houses;” that' he should hold his office for “two years, commencing on the first of May next thereafter, and until his successor shall be elected and qualified; and that public printers thereafter elected shall hold office for two years, and
On the 4th day of February, 1851, James Lusk was duly elected public printer, and thereupon gave bond and qualified. The general assembly, which convened in December, 1852, failed to elect a successor, and in May, 1853, the governor appointed John G. Treadway. It was insisted that the failure of the general assembly to elect created a vacancy which the governor could fill by appointment, but this court in that case held otherwise.
In the case at bar there was an election. The successful candidate, McCord, received his commission and took thp oath of office. The limit of Gale’s term of office fixed by the constitution was six years from the first Monday in January, 1869, if a successor should be duly elected and qualified. His successor was duly elected and qualified. . There was no one elected by the General Assembly to succeed Lusk, and this makes a material and vital difference between the two cases, and without overruling that, we may, in this case, determine that there was a vacancy created by the death of McCord.
The case of the Commonwealth vs. Hanley (9 Barr, 513) is in many of its features similar to this, and is confidently relied upon by relator. Hanley was 'elected clerk of the orphan’s court on the second Tuesday in October, 1845, for three years from the first day of December, 1845, “and until a successor should be duly qualified.” He qualified and entered upon the discharge of the duties of the office. On the second Tuesday in October, 1848, one Brooks was elected to succeed Hanley, but died on the 7th day of November following, within thirty days from the day of election, and by the law of that State he could not have qualified to fill the office by taking the necessary oath, or by giving bond within thirty days from the day of election.
The opinion of the court was delivered by Rogers, J., and we quote from that opinion so much as we think bears upon the questions discussed in this case. “Was there a successor duly quali
The words are emphatic and full of meaning. The successor must not only be qualified, but duly qualified ; and qualification for office, as defined by the most approved lexicographer, is “endowment, or accomplishment that fits for an office ; having the legal requisites, endowed with qualities fit or suitable for the purpose.”
If McCord had died after his election and before he received his commission and qualified, Commonwealth vs. Hanley would be an authority direct to the point that his death created no vacancy, and we infer from the opinion of the court, that if in that case Brooks had duly qualified and died before the commencement of the term for which he was elected, the court would have held that his death created a vacancy. Here it is admitted that McCord was duly elected and commissioned, took and subscribed the prescribed oath, was thirty years of age, learned in the law, and resident in the ninth judicial circuit, and was therefore, at his death “duly qualified,” as those words are expounded by the learned judge in Commonwealth vs. Hanley.
By the law of Pennsylvania, Brooks was not permitted to give his official bond or take the oath of office within thirty days after his election, but by § 2, art. 1, ch. 4, Wagn. Stat., it is provided that “each judge or justice shall, within thirty days after the receipt of his commission, and before entering upon the du
There is such a conflict between the California cases which have been cited, that they are of but little authority on either side of the question. The earlier cases sustain defendant’s view. They are, however overruled, in two cases more recently decided, but by a divided court, the dissenting judges adhering to the doctrine of the former cases.
We have been referred to cases in New York and elsewhere, in which are observations to the effect that an office cannot be considered vacant while there is an incumbent legally in office, and discharging the duties of the office, but this we do not controvert, and it only brings us back to the question, was there an incumbent of the office of judge of the ninth judicial circuit when the governor issued his writ of election ? If there was, there was no vacancy, and those cases would be in point; but the very question we are discussing is, whether there was then an incumbent, and this turns on the meaning of the word qualified, as used in our constitution of 1865.
The case of the State vs. Hopkins (10 Ohio, 509) is so like the case we are considering in its facts, and so directly sustains the position of the respondent on the main question in this ease, that we feel inclined to state fully the facts of the case, and the opinion of the court so far as it bears upon that question. By the statute of that State the county commissioners were expressly authorized by statute to appoint a county treasurer, whenever that office became vacant “by death, resignation, removal, neglect to give bond, or from any other cause.” At the fall election of 1857 one Hopkins was re-elected county treasurer, and on the first Monday of June, 1858, having been duly qualified, entered upon his second term of office. At the regular election in the fall of 1859, Matthias Rapp was duly elected to succeed Hopkins. Afterwards, in 1859, the governor issued to said Rapp a commission as county treasurer, which was transmitted to the county clerk. On rhe 27th day of November, 1859, before the com
The principal question in that case, as in this, was, whether the death of the officer elect, before his term of office commenced, occasioned a vacancy. The court in that case says : “By reason of the death of Matthias Rapp, prior to the commencement of the term for which he had been elected, there was no person, on the first Monday of September, 1860, entitled to take and hold the office during the regular statutory term commencing on that day. And this want of a regular incumbent for the term occasioned by the death of a party who would otherwise have been such, constitutes, as we think, a vacancy occasioned by death, within the meaning of the statute. And were it necessary, we should hold that under the statute last cited, the office became vacant upon the failure of Rapp to give bond and take the oath of office. True, this failure was caused by the act of God, and not by the laches of the party, but its effect upon the office is the same, whatever may have been the cause.
“This construction makes the legislative intention accord with' the constitutional policy, by which no person is ‘eligible to the office of county treasurer for more than four in any period of six years.’ ”
The last paragraph of the opinion we quote, because it is urged that the court was controlled by this constitutional provision in its conclusion that there was a vacancy. The court, on the contrary, says with emphasis, that the vacancy was occasioned by death, and there is no intimation in the opinion that the constitutional provision, which is only incidentally referred to, in any manner influenced the conclusion which the court arrived at in that case.
If the death of Rapp occasioned a vacancy in that, no one would contend that McCord’s death did not occasion a vacancy in this case. Rapp had not received his commission, had not
The People vs. Lord (9 Mich. 227) is another relied upon by relator, as expounding the meaning of the word qualification, in favor of the view taken by him.
The Constitution of Michigan, under which that case was determined, provides “that a judge of probate shall hold his office for four years, and^until his successor is elected and qualified.” In 1860, North, then in office, was re-elected of his own successor, for the term commencing January 1, 1861. He died November 22, 1860. Van Valkenburg was appointed by the governor to fill the vacancy, which in his judgment had occurred. On the first of January, 1861, under the impression that the time for which the first appointee, Yan Yalkenburg, was appointed, ended at the expiry of North’s first term, the governor appointed Henry Lord for the next term. It will be observed that North died in November, 1860, before the commencement of his second term."” It does not appear that after his election he was otherwise qualified under the law of that State.
The case presents the same material difference from this case that we have noticed as distinguishing the case of the State vs. Hopkins (10 Ohio, 509) and the Commonwealth vs. Hanley (9 Barr, 517), from the case at bar.
In the opinion of the court in The People vs. Lord, the court says : “His (Van Valkenburg’s) term of office did not expire on the 1st of January, 1861, unless some one elected and qualified was then ready to take the office.” We submit that the language of the court extends the term beyond the time fixed by the express words of the Constitution of Pennsylvania. The constitutional limit was, “until a successor is elected and qualified,” but the court adds, “and ready to take the office.” The construction of the word qualified was not directly before the court. There had not been an election, and that, under the law of Michigan, was decisive of the question. There was no question about the quali
By the term of the Constitution, Gale’s term was to cease when a successor should be elected and qualified. His successor, McCord, was duly elected and duly qualified, ana when that occurred Gale’s right to hold over ceased, and the death of that successor, before his term commenced, did not revive a right in Gale which ceased when McCord qualified.