State ex rel. McHenry v. Jenkins

1. Mandamus — Clerk — Term of office — Elections —Constitution —Vacating Ordinance — Construction of Statute. — Under section 22, article VI, of the Stale constitution, the term of office of tlie clerk of a Circuit Court expired in. January, 1867, even though in 1864 he had been elected for four years, and after the office had been declared vacant by the ordinance of March 17,1865, and in pursuance of the provisions of that ordinance ho had been reappointed “ for the remainder of his term of office.” But where no election of clerk was had in i860, as provided in section 22, article VI, the prior incumbent, under the constitution, hold over until the oleolion and qualification of his successor. 2. Elections, volunteer, of what effect.- — ■ The omission to hold an election in 1866 could not be supplied by a subsequent one not provided for by law, and such election would be wholly void and of no effect.

Petition for Mandamus. The facts appear in the opinion of the court. I. The judge of the Kansas City Court of Common Pleas had no right to go behind the certificate of election and inquire into the legality of the election. (41 Mo. 221.) H. The provisions of section 22, article VI, of the constitution are remedial only, and not intended to operate as a vacating clause by shortening the term of said office. The term of said office was six years, before the adoption of this constitution, which fixes the term of office of all clerks at four years. Circuit clerks, under previous laws, were elected for six years. Now their term of office is four years. “ The first-election of such clerks,” as used in the constitution, does not mean that all clerks should be elected in 1866, hut that all clerks whose time expired after the adoption of the constitution, and previous to the “ general election” in 1866, should remain in office until that time, and further extended their term of office until the first Monday in the .January following. HI. The law'does not favor repeal by implication, nor do the decisions of this court favor the shortening of terms of office. (23 Mo. 507 ; 38 Mo. 531; 37 Mo. 597 ; 41 Mo. 453.) Laws relating to the same subject must be made to harmonize, if possible, and the unconstitutionality of a law must be clear; and if there be a doubt, the benefit must be given to sustain the law. (41 Mo. 453 ; 6 Cranch, 128 ; 3 Pet. 433, 448; 12 Wheat. 294; 8 id. 48.) A constitutional provision may be applicable to a subieet in part and void in part. (Hardcastle v. Fisher, '24 Mo. 70.) IV. If the position of the defendant be correct, that section 22 of article VI of the constitution repeals and abrogates the “vacating ordinance,” under which Vincent holds the office,, then we contend: 1st. That Vincent’s term of office expired the first Monday in January, 1867, and there should have been an election held for a clerk of said court at the general election in 1866; but no election for such clerk having been held at that time, Vincent continued to hold the office, not for another term, but until the contingency provided for by the constitution should happen, to-wit: the election and qualification of his successor. 2d. That, because of the failure to vote for and elect a clerk of said court at the general election in 1866, the people are.not precluded from saying, at a subsequent “general election” held in conformity with law, who shall be the clerk of said court. On the contrary, it is and was the right of the people, at the time appointed by the constitution for the electing of “such clerk” — to-wit, “at a general election” — to vote for and elect a clerk of said court. I. The election of McHenry is void for want of legal authority to hold an election for such clerk in the year 1868. The constitution of Missouri, section 2, article VI, provides that all clerks of courts of record, other than clerks of the Supreme Court and District Courts, “ shall be elected by the qualified voters of the county at a general election, and shall hold office for the term of four years from and after the first Monday of January next ensuing, and until their successors are duly elected and qualified. The first election of such clerics after the adoption of this constitution shall be at the general election in the year one thousand eight hundred and sixty-six, any existing law of this State to the contrary notwithstanding.” This language is clear and unambiguous, and fixes the first election of all that class of officers at the annual election of 1866, and the length of terms, running from that date, at four years. Such language in a constitution cannot be wrested from its obvious meaning by judicial construction. The vacating ordinance was enacted before the constitution, to meet an emergency, and was intended to be superseded by the constitution ; and wherever it is in conflict with the constitution it is repealed by that instrument. II. There is no pretense that McHenry had been elected to fill a vacancy; nor could he have been, for the agreed case shows that no such election had been proclaimed by the governor. HI. An election without authority of law is void. If a principle so elementary can be strengthened by'authority, it maybe found in the case of The State ex rel. Crawford v. Robinson, 1 Kansas, and first case in the volume, where the governor was allowed to hold over his regular term a year, because his successor was elected at a time other than that provided by law. IV. It is unnecessary to consider in this case whether Vincent is to hold the office for the full term, or whether a special election may be called to fill the remainder. We are of the opinion that he will hold till the commencement of the next regular term. (State v. Robinson, supra; People v. Van Horn, 18 Wend. 515.) The clerk holds, both by the law under which he was appointed and the constitution, until his successor is duly elected and qualified. (Local Acts 1855, p. 60, § 2; Const. Mo. art. XI, § 8.)