State ex rel. Jackson v. Emerson

Wagner, Judge, delivered the opinion of the court. The circuit attorney of the 15th judicial circuit filed an information in the nature of a quo warranto, in the Iron county Circuit Court, against John W. Emerson, requiring him to show by what authority he performed the duties and exercised the functions of the judge of the said judicial circuit. The cause was taken by change of venue to the St. Louis Circuit Court, and upon a final trial in the last named court judgment was given against the relator and in favor of Emerson, and to reverse that judgment this appeal is prosecuted. The relator claims the office by virtue of an election in August, 1857, and insists that the term for which he was legally elected had not expired when the respondent was elected in [88] 1863. The Legislature by an act approved March 3, 1855, organized and created the 15th judicial circuit, and in section 3 of the act provision was made for electing a judge of the said circuit on the third Monday of March, 1855, who should hold his office until the regular election for circuit judges, which by the Constitution was fixed on the first Monday in August, 1857. At the election in March, 1855, the relator was elected judge of the said circuit, and at the regular election on the first Monday in August, 1857, he was reelected to the same office for the full period of six years. At the election held in pursuance of law in November, 1863, John W. Emerson was elected judge of the same circuit for the term of six years. By article 7 of the amendments to the Constitution, ratified by the Legislature at its session of 1850-1, the offices of the several circuit judges were declared to be vacated on the first Monday in August, 1851, and it was provided in the said amendment that the circuit judges should be elected for the term of six years ; that the first general election for judges should be on the first Monday in August, 1851, and on the first Monday in August every six years thereafter. The relator assumes the position, that so much of the act of March 3, 1855, as provides for the judge holding his office until the next general election is in conflict with the Constitution and void; that when he was elected in 1855, by virtue of the Constitution, it was for the full term of six years, or until 1861, and that when he was re-elected in 1857 it was for six more additional years; and that his second term commenced in 1861 and expired in 1867. And that Emerson, the respondent, although elected at a regular election in 1863, was not entitled to the office till 1867, or nearly four years after his election. If this position be correct, the Legislature surely committed a great absurdity when they created the 15th judicial circuit and provided for an election. It is contended by the respondent that the Legislature possessed the unquestioned right to order air election to fill the office for less than the constitutional term, on the ground [89] that when the office was created there was a vacancy, and that it comes within the meaning of the clause in regard to filling vacancies by election for the remainder of the term. But this is a strained and unnatural construction, and not within the intention of a vacancy happening by “ death, resignation, removal from the circuit,” &c. In construing an instrument, the true intention of the ft’amers must be arrived at if possible, and, when necessary, the strict letter of the act, instrument or law must yield to the manifest intent. The Constitution provides that an election for circuit judges should be held in August, 1851, and every six years thereafter. The intention was to producé uniformity in the tenure of the judges throughout; the State. The power to create and establish new circuits was conceded to the Legislature, but we are unable to see anything which expresssed or implied a prohibition against the Legislature forming a new circuit and making the judge elective till the next general election, though it should be a less period than six years. The amendment declaring that “ hereafter each judge of the Circuit Courts shall be elected by the qualified electors of their respective circuits, and shall be elected for the term of six years,” must be taken in connection with the latter part of the same section, which provides when the first general election shall be held, and enjoins an election every six years thereafter. The constitutional term of the judge was fixed at six years, and the Legislature had no power to either extend or abridge it; but we do not think that when a circuit was created or organized just previous to a general election, the Legislature was denied the power of filling the office of judge by special election, to hold till the ensuing general election. The clause in the Constitution seems to embrace all the circuit judges, and if such be the correct interpretation we will not suppose that it was ever intended that a person should be elected circuit judge when he could not qualify and exercise the functions of his office till a period of four years after his election. [90] Let the judgment be affirmed. Judge Fagg concurs ; Judge Holmes did not sit, having been of counsel.