State ex rel. Davis v. Mann

Constitution — General' Assembly — County Courts — Vacating Ordinance. — By the Constitution, art. 6, sec. I, the General Assembly was authorized to establish inferior judicial tribunals, and under this power it could reorganize the inferior courts then existing, and to that extent could abrogate the vacating ordinance of 1865. The provision o£ the statute, G. S. 1865, eh. 137, § 3, declaring vacant the office of justices of the county courts, and providing for the election of new justices, was constitutional.

Appeal from Sixth District Court. I. The construction given to § 3, ch. 37, G-. S. 1865, p. 137, by the Marion Circuit Court, by which the office in controversy was held to be vacant on the 6th of November, 1866, is in direct conflict with the vacating ordinance — § 2, ch. 2 of said statute ; Gr. S. 1865, p. 60, § 1 of vacating ordinance ; id. p. 47 ; State ex rel. Mississippi & Mo. R.R. Co. v. Macon Co. Ct., present term. II. The vacating ordinance under which the appellant was appointed to said office is organic in its nature, and as such it was not competent for the Legislature to modify, alter or repeal it — 38 Mo. 419 ; § 9, art. 1, Const., G. S. p. 42 ; § 28, id. p. 52; § 33, p. 682; Adj. Sess. Acts of 1863, § 6, p. 689, & § 16, p. 692. III. The special acts of the Legislature in regard to the election of justices of the County Court of Marion county are not repealed by the General Statutes on the subject— State ex rel. Yastine v. Judge Probate Court, 38 Mo. 529 ; City & Co. of St. Louis v. Alexander, 23 Mo. 483 ; Mauro v. Buffington, 26 Mo. 184 ; § 3 of art. 11 of Const., G. S. 1865, p. 42, & § 6, p. 883.; Dwar. Stat. 532 ; Sedg. Stat. & Const. Law, 123 ; State ex rel. Mississippi & Mo. R.R. Co. v. Macon Co. Ct., present term. I. All the offices of County Court justices in the State were vacated on the 6th day of November, 1866, at the regular election held on the said day by an act of the General Assembly — G. S. § 3, p. 555. II. It is insisted that this vacating of the office by the Convention in 1865, and the authority conferred on the Governor-to fill the vacancies for the remainders of the term, does not conflict with or affect in any manner the act of the Legislature aforesaid vacating said offices — § 1, G. S. p. 47. III. The term of holding the office is not fixed by ordinance, nor by the Constitution. The power of fixing, altering or abolishing the term of office belongs exclusively to the General Assembly. The Constitution declares that such county inferior tribunals, to be known as the County Courts, shall be established by the Legislature. The General Assembly, then, has the power to fix their terms of office; and there being no constitutional restrictions on the Legislature, it may declare the offices vacant whenever it chooses so to do; or it may abolish the courts and establish other tribunals. It has full and complete control over the subject.