139 Mo. 106 | Mo. | 1897
On December 31, 1894, Hon. Edward C. Crow was appointed by the Governor of this State, judge of the twenty-fifth judicial circuit, and the appointee was commissioned to hold his office until his successor should be elected and qualified.
This appointment was made under the provisions of section 3276, Revised Statutes 1889, in consequence of the Hon. W. M. Robinson, then judge of that circuit, having been elected as judge of this court, and before his time ás circuit judge had expired, he having resigned the latter position.
At the general election in the year 1896, the Hon. Joseph D. Perkins was elected judge of the circuit mentioned, and received his commission on the — day of December, 1896.
Circuit court had been in session at Carthage, and had been adjourned for the term at that place by the Hon. E. C. Crow, and within thirty days after the reception of his commission, respondent, in the presence of Hon. E. O. Crow on the second of January, 1897, at the court house in Carthage, took and subscribed the oath of office as judge of thé twenty-fifth, judicial circuit, and presented his commission with his oath of office indorsed thereon to the clerk of the Jasper circuit court. Circuit court had been in session at Joplin, Missouri, which is in Jasper county, on Decern
On December 28, 1896, two causes in which relators were defendants, to wit, numbers 3409 and 3410, which had been for some time pending in the circuit court at Joplin, were decided adversely to relators by the Hon. Edward C. Crow, and court was adjourned, on his order, to January 4,1897, as already stated.
On December 31, the day of .and after said adjournment, relators appeared before the clerk of the circuit court at Joplin, and in each of said causes presented for filing with such clerk, motions for new trials containing valid reasons therefor, but such clerk, though he marked said motions filed, refused to enter them on the vacation record or place them on the docket. On January 1, 1897, similar motions were also presented to the clerk for filing, with like result as before.
On January 4, 1897, Hon. Edward C. Crow arrived at Joplin, went to the courthouse, ascended the bench and ordered the attending officer to open court, which being done, counsel for the plaintiffs in the causes heretofore mentioned, and who now represent respondent herein, presented the motions for new trials therein filed January 1, 1897, and requested Hon. Edward O. Crow to pass upon and deny the same. But counsel for defendants in said causes, who are now relators in this proceeding, protested against the Hon. Edward C. Crow passing on said motions and denied his right to sit upon the bench or to exercise any jurisdiction in either of said causes. Other attorneys also present in the court room and not concerned in said particular causes, united with relators’ attorneys in protesting against and denying the right of the Hon. Edward C. Crow to sit in any of the causes then pending in said court.
Thereupon said Hon. E. C. Crow announced from
Upon Judge Crow’s leaving the bench, Judge Perkins assumed it, and treating the entries made on the record on that day by Judge Crow like Thomas Marshall said the administration of John Tyler might have been treated, that is, placed in a parenthesis without affecting the sense of the context, ordered the court opened pursuant to the adjournment from December 31, 1896, and proceeded with the business as if court had not already opened that morning.
Counsel for relators then filed motions to expunge
Various provisions are to be found in our organic and statute law respecting the tenure of offices, judicial and otherwise. Section 30, of article 6 of the Constitution provides that the election of all judges of courts of record shall be held as may be provided by law, etc. And in ease of vacancy in the office of judge of any court of record, section 32 of the same article requires that such vacancy be filled in the manner provided by law.
Article 14, section 5, of the Constitution, provides that: “In the absence of any contrary provision (whether constitutional'or statutory not stated), all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified.” Carrying into effect the foregoing constitutional provisions or attempting to do so, are to be found the following provisions of statutory origin:
First. Section 3317, Revised Statutes 1889, providing for the election of circuit judges, and their taking office on the first Monday in January next ensuing.
Second. Section 7121, Revised Statutes 1889, providing that all officers elected or appointed by the authority of the laws of this State, shall hold their offices until their successors are elected or appointed, commissioned or qualified. ■* This section has been existent for many years. 2 R. S. 1855, p. 1108, sec. 3; Gh S. 1865, p. 138, sec. 1; R. S. 1879, sec. 3330.
At common law where a statute specifies the duration of a term of office and the officer elected or appointed thereto serves out such term, his power and authority, as such officer, thereupon ipso facto cease, unless by law he be authorized to hold over. People v. Tieman, 8 Abb. Pr. 359; People v. Tieman, 30 Barb. 193; Badger v. U. S., 93 U. S. 599; Mechem’s Pub. Off., sec. 396 and cases cited.
This rule of the common law is evidenced by the generally uniform course of legislation whereby provision is made, wherever thought necessary, that the officer elected or appointed may continue in office until his successor be elected and qualified. Wherever such words are employed there can be no doubt that the duration of the power and authority of such holding-over officer will continue until his successor has been chosen and qualified. But where such words are omitted, it is sometimes a matter of doubt whether the right of the incumbent to hold over is clear.
The policy in this country (tvherever “civil service
Section 3276, it will be noted, uses the preposition “ until.” This is a restrictive word, a word of limitation; this is its ordinary and usual meaning, and under our statutory provisions (R. S. 1889, sec. 6570), as well as under the general rule of construction, this is the meaning which should be ascribed to it. This is the ordinary meaning of the term as has been expressly adjudicated. Webster v. French, 12 Ill. 302;
Besides the legislature, at the revising session of 1879, enacted section 3276, and retained section 7121, and therefore must be deemed cognizant of the difference between those sections, and intentionally used the limiting w;ord “until,” and purposely refrained from using in section 3276 words granting the right to hold over after the 'expiration of a given time. Nay, more, they made express provision that the residue of the term should be filled by election. This amounts to the exclusion of a conclusion.
These considerations necessarily lead to the conclusion that Judge Crow’s official term expired when the general election occurred in 1896, and could not be extended by reason of the fact that the commission he received from the Governor assumed to enlarge his official term (not only “until the next general election”) but “until his successor qualified.” Mechem’s Pub. Off., sec. 395; Hench v. State, 72 Ind. 297.
As to whether Judge Crow’s acts were valid after the general election occurred, we are not called upon now to decide. We are thus brought to consider the force and effect of Judge Crow’s acts on the fourth day of January, 1897. An officer defacto has been defined to be “one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law.” King v. Bedford, 6 East, 356. Another definition given is that: “An officer de facto is one who executes the duties of an office under some color of right, some pretense of title, either by election or appointment.” Hooper v. Goodwin, 48 Me. 79.
The foundation stone of this whole doctrine of a defacto officer, as gathered from all the authorities,
In the case before us there was no misapprehension on the part of the public or of third persons, because Judge Crow (whose term of office had indubitably expired at least when Judge Perkins, having been elected, was duly commissioned and qualified) proclaimed from the bench that he knew that Judge Perkins had qualified as judge, that his own term of office had expired, and that he did not claim that he was judge of the court, but was only disposing of business left unfinished on December 31, 1896. This being the case, there is no room in this record for the de facto doctrine to occupy. Consequently the acts of Judge Crow were null and void, and should have been thus treated by his successor in office, who should have proceeded as requested by counsel for relators, to pass upon and determine the motions for new trials.
Formerly, an incoming judge’s only course when called upon to pass upon a motion for a new trial filed before his predecessor but undisposed of, was to grant such motion. Cocker v. Cocker, 56 Mo. 180; Woolfolk v. Tate, 25 Mo. 597. Since then, however, section 2171, Revised Statutes 1889, has been passed which enables an incoming judge to sign a bill of exceptions. This statute, in the light of prior practice, must be regarded
In the case at bar in legal contemplation, the motions for new trials had been passed upon by a wholly unauthorised person, and therefore not passed upon at all.
We believe that the power to sign a bill of exceptions carries with it as a coincident right, the right to pass upon the motions for new trials, without which in the case at bar the power to sign a bill of exceptions would be worthless and wholly ineffectual.
Moved by these considerations, we award the peremptory writ.
