Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1880-12-25
OPINION OF THE ATTORNEY-GEN-
ERAL.
The Probate Jutgeship.
STATE OF MISSOURI,
OFFICE OF ATToRNEY-G GENERAL.

STATE OF MISSOURI,
OFFICE OF ATroRNEY- Y-GEsEhAL I
CRY OF orJEfrEpsoN, August l2: 1850
To HE Eccefsncy, John .. Phefps' ""s-
ersior, &c.
Dear SRI have the honor to cknovledge the
receipt Of your. with accompanyinE p1ners: I%Is:
| Is nj present such a vacancy in the office OF pre-
! bate judge of The county of Lafayette as can he
| response thereto that 1t would seem that 7.
Cannon WAS elected to the said office Of judge
OF sns Ss . 81
| veIrber. 1874; that the then governor issued to
the said Cannon, so elected. two several eom- H
years. from the 4h day of August. 1874, and the
other ''for the term specified by law - The irst
OF said elections was i,eld ON the first Tue sday
after the first Monday in August, 1874, in pur-
suance of the provisions OF section l. OF the act
of March 10, ls49. (acts OF 1919, p: al l.) and
1866. g, y. SS) Const. Mo, 1856, Art. i. section
2. State ex. rel. AttorneY-General VS.. Fi.la,
| Al Mo, $40.
think this was valid election, and the COM
| mission Issued in pursuance thereof WAS cor
rect and legal exercise OF executive peWer and
that tho second election and commission OF said
| probate Judge were nulities.
The term OF office of The said Cannon under
| the provisions of said act of lS49, and by the
| terms of his coininission, 1pire1 On the arst
Tnesday alter the first Monday IL -ugust. 1889,
ton. or IN the law. or in BOTH which would
make his term Of office end ut different time
|
1875 provides that ali county and probate courts.
as now constitued and organized, shall cor,
tinue with their jurisdiction until the genera
| assembly shall. by law, conform them IN their
organization TO the requirements OF the said con.
| stItution. The only eject OF this constitutional
wa. to .nese 1.udts ib nGI ,heir a1
organization to the requirements Of the consti-
| tuition.
| prevdes that the general assembly shall estab-
iish in every county probate court, &C.; pre-
yided that until the general sssemDy 81 shall pre-
courts the Jurisdiction OF probate courts hereto.
lore established shall remain n now provided
The Legislature, by tho act OF April 9, 1877
(acts of 1877, page 229,i and the amendments
thereof US incorporated in the I present revised
| pursuant to the said constitutional authority,
. uniform system Of probate courts throughont
1877 1t was provided that at the general election
in 1873, and every four years thereaitsr, with
the e1 ceptions IN section Is Oh SAID
flied voters in every county. The judge 80 elect
oil to enter upon the discharge o! his duties on
% oe con,nSe oi in oee for % four years. The SAID
section Is provided that all probate judges then
ia Office should continue therein until the expi-
ration of the terms for which they were elected.
Tais section was amended in the revision there
ofso US to provide that In every county where,
aase % whose s term % ONCE does not t. expire until
the lst day of January. 1881, there shall be 9
judge OF probate elected for such county at tn:
general election in the year 1850, who shall hold
his office fer two years IRON said LIST day Of j an.
xary, 1881.
the present constitution provides that the gen
sral elections shall be held biennially ON the
Tuesday next following the first Monday .
The said act ol April 9, 1877, as amended.
think, has superseded and swept away all tht
Of ths sad ih act 81 Msrc9 % H.
for permitted the probate judge elected un
der the provisions of the latter to continue il
Ohice until the expiration of the term tor whicl
he WA elected. Under the provisions ol ths
act of April 9, 1871. SO much of section Of snit
act Of March 8, 1s49 as provided for the election
OF n judge of probate on the lst Monday in Au
gust, or on the LIST Tuesday after the lst Monda.
In August every six years. was repealed. ant
probate was, by said act of April 8, 1877, ex
pressly required to be held at the general cleo
lions. To hold an election for probate judge il
any county in this state at a time other than .
the general election would destroy the uni
formlty Of the system OF probate courts. whls
Hence, no election for judge of probate coul
have been lawfully held in Lafayette county il
August, 1850: under the provision, Of said act Q
Now. unless there is some provision of tn
constitution or of the statutes or both which au
thorizes the said judge, elected in August, 1874
to continue TO discharge the duties of said d:oftc
alter the lst Tuesday after the lst Monday !
August, 1880, there is u vacancy in said O6ic
which can be filed by executive appointment
Ii was provided IN section Of the act Of Marc
said act should ''hold his office for six yearl
and until mis- successor was duly qualified an
constitution OF 1865. provided that all officer
should hold during their official terms and unit
their successors should be elected or appointe
in the constitution OF 1873. (Const. ISIS, Art
Il, sec. 81 II is, therefore. obvious from th
v reading OF these constitu'ional and statutor
y provisions that the said Judge of probate Of sal
- county was not only elected for q term OF si
y years. but also until his successor should b
-, elected or appointed and quaiiii-d.
Under the constitution oi this state there al
two classes of oifces-Qne elective and the othe
appOintive The constitution provides that u
e officers elected shall hold their offices durin
their official terms and until their SUCCESSORS
IL duly elected and qualified; and that nll officer
e anu until their successors shall be appointe
and qualified. So that the said Cannon, afte
the said lat Tuesday following the lst Monda
in August. 1880. will continue 10 be the const
=, tutional and legal incumbent of said office
j" probate judge of said county until his successc
!, shall he elected and qualified.
vacancy in said Office within the meaning of I'll
> statute (Rev. Stat, Sec. 1,l7s.) and certainl
!, none which Can be filled by executive appoint
u msnL.
! feel assured that the conclusions which hay
it reached end abundant support in the opinion
=, and concurred in by Judge Ryland, in the ca
~ of State ex. rel. Trcadway vs.. Lush, 1s No
l. ssl tnd nothing IN section 5 .s27 OF the r,
10 viscd statutes which initiates against tho col
- clusions at which have arrived.
III Respecting elections the said act Of April
1877, AS amended in order to secure unifOrMit
requires that the elections for probate judi
IN shall in every county be held either at the gel
eral election in 1875 or at the general election
1880. To this thsre can be no exception.
In the first case the term for which the judy,
III were elected was four years, and in the iatt'
case it will be two years, so that the election
nc all the probate judges throughout the state
1852 shall be uniform, and for the term Of fol
years.
10 think the true spirit and purpose of the prt
:, visions Of the said act requires that a proba
u judge be elected in Lafayette county at Il
general election IN 1880, and that the Judge
10 elected will enter upon the discharge OF Il
or duiies Of that ofics on the lat day of Januar
VI 1881. and continue therein for q term of tv
years. have the honor to be, very respeC
-, fully. J. l.. SMITH, Attorney General