The State, at the Relation of Tredway, vs. Lusk, 18 Mo. 333

Gamble, Judge, delivered the opinion of the court. Lusk was elected public printer by the general assembly at-the session of 1850, and at the session of 1852 there was a failure to elect a successor by the general assembly. In May, 1853, the governor appointed and commissioned Tredway to £11 the office. The present proceeding is for the purpose of removing Lusk from the office. The act of 24th March, 1845, (R. C. 907,) in its first section, declares: “ There is hereby established an office to be called'the office of public printer.” The second

section directs that a public printer shall be elected at the present session of the general assembly, and at every regular session thereafter, by joint vote of the two houses.” The third

section directs “ that the president of the senate and speaker of the house of representatives shall furnish the person elected Avith a certificate of his election, and he shall, within ten days after receiving the «ame, give bond, take the oath of office, and shall, at the time provided in the act, enter upon the discharge of the duties of the office, and if he fail to do so, his office shall-become Aracant.” The fifth

section provides that “ the public printer to be elected at each session of the general assembly, shall hold his office for two years commencing on the first day of May next thereafter, and until his successor shall be elected and qualified ; and the public printers thereafter elected, shall hold office for two years and until their successors shall be elected and qualified.” The sixth

section proA-ides that, “ if the public printer should die, or resign, or if, from any other cause, the office should become vacant, the governor shall appoint a public printer, Avho shall give bond and qualify, and shall hold his office for the same time that the printer in whose stead he shall be appointed would have held. ” These provisions of the act are the only ones AA'hich materially affect the question in the present case. In behalf of the State, it is claimed that the office became vacant on the first of last May, in consequence of the failure of the assembly to elect a public printer, and as the office itself continued to exist, the governor, under the ninth

section of the fourth

article of the constitution, was entitled to fill it by appointment. That

section is in these words : “ When any office shall become vacant, the governor shall appoint a person to fill such vacancy, who shall continne in office until a successor be duly appointed and qualified according to law.” On the part of Lusk it is insisted that the governor had no authority to make an original appointment of public printer, because the thirty-second

section of the third

article of the constitution directs, that “the appointment of all officers, not otherwise directed by this constitution, shall be made in such manner as may be prescribed by law,” and the law in the present case has prescribed an election by the general assembly as the mode of appointing a public printer. It is next insisted that, as the act itself directs, that the person elected by the assembly should hold the office for two years and until a successor should be elected and qualified, the office was not vacant, so as to authorize the governor to fill it by appointment.

It is evident, from this statement, that the only question in the case is, whether the office became vacant on the. first day of May last, by reason of the failure to elect a public printer. It is insisted for the State, that the term for which the office is to be held is two years, and that the additional time, “ until a successor is elected and qualified,” is added, merely to prevent the office being without some person qualified to discharge its duties, and does not prevent its being considered vacant for the purpose of its being filled by executive appointment.

There are many cases, both in the constitution and laws, in which the same words are used in prescribing the tenure of offices.

The governor shall hold his office for four years, and until a successor be duly appointed and qualified. (Const, art. 4, sec. 3.) Sheriffs shall serve for two years, and until a successor be duly appointed and qualified. (Art. 4, sec. 23.) Constables and many other officers, whose offices are created and regulated by statute, hold them until successors are elected, or appointed and qualified, and by a general act passed 17th February, 1847, it was enacted that all public officers in this state shall continue in office until their successors shall be appointed and qualified.

While it may be true, that the design of continuing an incumbent in office, until his successor is duly elected and qualified, is to prevent any interregnum in the office, and to have some person always authorized to discharge its duties, it is also true, that the incumbent, until the qualification of his successor, is as fully in the office, and entitled to all of its advantages and emoluments, as he was for the previous period of his service; and it is his right to hold the office until every thing has been done which is required by law to give title to the office to another person.

The question, then, recurs, was the appointment of Tredway one which the governor, under the law and constitution, was entitled to make, and which being made, constituted him the successor of Lusk, so that Lusk’s term of two years, and until his successor was elected and qualified, has been filled ?

It cannot be doubted that Lusk was entitled to discharge the duties of the office not only until the first day of May, 1853, but that he would now be in office, competent to discharge its duties and entitled to its emoluments, if no appointment had been made by the governor ; such would be the effect of the words prescribing the tenure, “until his successor shall be elected and qualified.” If the office became vacant after the first day of May, it must have been so while there was a person in possession, capable of discharging its duties, and this vacancy must have been occasioned solely by the fact that no successor had been chosen by the general assembly.

A case involving the same questions-was before the Supreme Court of Pennsylvania, Commonwealth v. Hanly, 9 Barr’s Rep. 513. Hanly was elected clerk of the Orphans’ Court, and commissioned to hold his office for three years from the 19th December, 1845, and until his successor shall be duly qualified. In October, 1848, Brooks was elected to the office but died before he qualified. The relator, Broom, was appointed and commissioned by the governor, and gave bond, and was qualified according to law. The quo warranto was issued for the purpose of removing Hanly from the office.

The tenure of the office, as prescribed by the constitution, was in these words : “ They shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified.” Vacancies were thus provided for: “Vacancies in any of the said offices shall be filled by appointment to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.” Hanly’s three years had expired, and he was holding under the clause that gave him the office until his successor was duly qualified, and he was holding against a person who had been commissioned by the governor to fill a vacancy.

The court, in speaking of the tenure of the office, says: “ The constitution reads thus : they shall hold their offices for three years, if they so long behave themselves well, and until their successors shall be duly qualified. The obvious meaning of this clause is,'that they cannot hold office for less than three years, if they so long behave themselves well, although, on the happening of certain contingencies, they may hold for a longer period. It is, therefore, of no consequence that, according to the respondent’s construction, he holds office six instead of three years.

Without intimating an opinion as to the term of his office, or that, if as the relator contends, it would be a great misfortune, we think there is nothing in the argument which can overrule the plain words of the constitution.

That the respondent is entitled to hold until his successor is duly qualified, are the words of the constitution.” “ The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz: three years ; and that any extension of the time arises only from the exigency of the case, and must be strictly construed.

The relator assumes that the respondent was elected and commissioned only for three years ; but this is a mistaken view of the constitution, and is only plausible by obliterating several important words from the constitution.” The court then proceeds at some length to show that the office of the respondent, Hanly, was not vacated by the election of Brooks, who died before he had given the bond and qualified, and then considers the question whether, under the constitution, a vacancy in the office had occurred which the governor was authorized to fill by appointment.

Upon this point the court uses the following language : “It will be observed that the terms on which alone the governor can appoint, are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all of its emoluments, is a position difficult to comprehend.

It is an abuse of terms to say that, at the time the governor issued his commission to the relator, the office was vacant, for no person can plausibly deny that the respondent (Hanly) was the rightful possessor of the office at the time. The primary object of the framers of the amended constitution was, to diminish, as far as practicable, executive patronage ; and, in accordance with this policy, it was thought proper to confine the power of appointment to the single case of a vacancy in office. What then is meant by a vacancy in the office ?

Surely an office cannot be vacant, when it is filled by a person in the legitimate exercise of all its functions — in the lawful enjoyment of all its emoluments.” The office of public printer is a statutory office, which the assembly could mould and fashion as they thought best. The power of original appointment is vested in the two houses, and the governor has not, by the law, any power given him, except to fill vacancies, by the appointment of persons who shall hold the office for the same time it would have been held by those in whose stead they are appointed.

His appointments are in the stead of other pevsons who have been regularly elected. The person elected by the two houses is to hold his office until a successor has been elected and qualified. That the governor has no power to displace the person elected by the general assembly, is certain, for no such power is hinted at in the law. He cannot displace him during the two years, because the office has been conferred upon Mm for that time absolutely, and the governor has no control over the office.

He cannot remove him after the two years, because the same law that protects him for two years, protects him equally after that period, against every person but a regularly elected and qualified successor. The successor, to whose claims he must yield, is a-successor elected under the law, and qualified as the law requires. The law makes it the duty of the two houses to elect a successor, and it makes no provision for the appointment of a successor in any other mode, or by any other body or individual, and it continues the incumbent in office until his successor is elected and qualified under that law.

If the two houses, instead of electing a successor by the joint vote of the two houses, had made an election by the concurrent vote of the two houses, each house voting separately, the election would have been contrary to law, and if that fact had appeared in the title of the party claiming the office against the incumbent, there would have appeared a failure to elect a successor, and the incumbent would have continued in office, under his former election. The law providing for the choice of a successor in its own mode, excludes others, and it continues the incumbent in office until that mode is pursued.

It may be taken to be the clear intent of the act, that the public printer shall be the appointee of the assembly, except in those cases of necessity arising after a person has been legally in office, where it becomes vacant by death or resignation, or like casualty, in which cases the governor is authorized to fill the vacancy. Under the express terms of the act, then, the respondent, Lusk, was in office when the governor issued the commission to Tredway, and he was in under an election by the joint vote of the two houses of the assembly.

The act intended to continue him in office until a successor was elected by the body having the power to appoint such successor; and the failure of that body to make the appointment at the time when, by law, it should have been made, did not vacate his office. It has been argued that the securities of Lusk are not bound upon the bond given at the time be was elected, for any default of wbicb he may be guilty after the expiration of the two years.

It is not necessary to consider this question in the present case, for, whether they are bound or not, does not aid in determining whether his successor has been so appointed, under the law, as to terminate his right to the office.

The authorities, however, which have been cited upon this question, appear rather to sustain the position that he continues in office ; for, if the courts had entertained the opinion that the officers whose securities were sued, were out of office at the expiration of the term of office specified, there would appear to be no difficulty or hesitation in declaring that the securities were not liable for defaults after the official powers of the principal had ceased.

Reference has been made in the argument to other offices, in which the incumbents are to hold for a given period, and until their successors are appointed and qualified; such as the governor, sheriffs, &c., but it would unnecessarily extend this opinion to examine the provisions of the constitution and laws applicable to those offices, and it is mot thought that, in relation to either of the different offices referred to, is there any provision inconsistent with the views here expressed.

Regarding the respondent, Lusk, as in office under the statute, and that there was no vacancy which the governor was authorized to fill by appointing Tredway, the demurrer of the State to the plea of Lusk ought, in my opinion, to be overruled, and judgment should be given thereon for the respondent, Lusk. Judge RylaND concurred in the above opinion.