Montgomery v. Little

'Hugi-iiss, J., (after stating the facts). The question is, which of these three was entitled to the office of probate and county clerk of Miller county? Appellant Montgomery contends that there was a vacancy in the office when it was first officially shown by the last federal " census that said county had a population exceeding 15,000; that this was first legally shown on the 3d day of October, 1900; that the governor had the right to fill it by appointment, and that appellee Little was not legally elected to said office; that when it was officially ascertained by the last federal census that the county of Miller had a population exceeding 15,000, the offices of circuit clerk and county and ex officio clerk of the probate court of said county became and were separate, and could not be held by one person. The provision of the constitution under which ■ this controversy arises is as follows: Section 19, art. ¶: “The clerks of the circuit court shall be elected by the qualified electors of the several counties for the term of two years, and shall be ex officio clerks of the county and probate courts and recorder; provided, that in any county having a population exceeding fifteen thous- and inhabitants, as shown by the last federal census, there shall be elected a county clerk, in like manner as a clerk of the circuit court, who shall be ex officio clerk of the probate court of said county.” The amendment to the constitution of the state of April 4, 1898, under which Montgomery was appointed is as follows: “The governor shall, in case a vacancy occurs in any state, district, county or township office in the state, either by death, resignation or otherwise, fill the same by appointment, to be in force and effect until the next general election thereafter.” It is not our purpose to discuss at length the questions raised by this appeal, as they have recently been considered and decided in the case of Childers v. Duvall, ante p. 336, in which it is held that “on the 3d day of October, 1900, the director of the census, by the publication of a bulletin, made known that the population of Lawrence county exceeded 15,000. This was the first time it was lawfully made known, and official notice could have been taken of the fact; and soon after the governor filled the office of clerk of the county court of that county by .appointing T. M. Duvall county clerk. The appointment was lawfully made.” It appears in the case at bar that on the'3d of October, 1900, the director of the census, by the publication of a bulletin, made known that the population of Miller county exceeded 15,000. This was the first time it was lawfully' made known, and that official notice could .have been'taken of the fact; and so'on thereafter the governor appointed Jas. M.4 Montgomery county clerk.- The appointment was legal. Childers v. Duvall, ante, p. 336. " The judgment of the court dismissing Montgomery’s' complaint is reversed, and the finding and judgment in favor of Little is reversed, and the cause is remanded, with instructions to enter judgment for the appellant' Montgomery for the office of "county clerk of Miller county, and to ascertain the fees and emoluments he is entitled to recover, ‘and to enter judgment in his - favor for same.