Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1881-04-30
THE ~HoRD-GAMMoN CASE.
Opinion OF tho supreme Coart.
sursEx. cousr o, M~IssouR1, |,
~ u April Term, ISL J.
Attorney: General -. Quo warranto.
Willism T. Gammon.
OPINION OF THE COURT.

OPINION OF THE COURT.
On the 4tht gay Of August: 1874 the respondent
1T. county. {Sr "a term ef sis years, an ad1, was
csmmisslonsd ana quAiifed and entered upon
the discharge oG the ututies sof. the efdas. 1t is
i uss:'u ~ ~ th S.s general ere q s sIessis sapff Is R II AaeSsr,
1880. James B raord was elected to said Office.
I'd az e.. .s Spdf Ssa of tSst 81 sis e Sas.st II + r ssa aa.
thori1ed' By lsWcldortf 10 tensltled to the sfce,
otherwise respondent holds under his election in
I'D. nd, , sna Ss a!t' . 'n's'. se' t shall ?. s sply elected
provided assi:0e 7, sI ssSsr ! ssaasitSyG sa aiH1e sstab Is
VIII, which ~ .h sasi 3. s : essrt . q. pss 3 s sHd Consist Ms.s ~
one judge, ssho shall be slected. Said court
shall havs jurisdictaOn over all hlatters.bstnlin-
ing to probate businsss, to granting letters tes-
ment Of guardians and fcurxtofs Of minors and
persons 81 lpsopnd mind, settling the aeeehnts
diane, and the sale or leasing oflsnds bysadMin-
Is~trsters, -earssers -and-guardians; and als9'
3 lies: p1oyia 20: Il n Iii IL ss1 Esnsf. is ss.s : S1y
shall proside bX lsW. ior 9 pnllorm s1stem or
court: ,l hsr.totor e. e'ts1l i saa shan hs s arsmsin az as
7 siasd: e. : fss 3 sSart G. s assSi il t! ds L tsfsns ia . gsGr
oExanisas,on, ja.,.dietio1. ae1sss and pEActiss,
onisio. As his own cIsrk And:by Subsequent
enbrseed in the act Of April 9th. ISL, Y(Acts Of
incorporated IN the present revised statutes OF
1879. page 2eo, ssctlon ], III, that AT the gem,
sral ~slsolion in the year eighteen hundred and
ssvsnty eight, and every four years thereafter,
except aa hereinafter provided. = Judge Of pro-
every county. said Judge shaii Be commission.
ed BY the gOvernor, and shall take the oath pre-
scribsd by the constitution for all officers, and
shall enter ups. the disohargs OF his .dntles on
the first day OF January ensuing his election, and
continue IN office dor four years. and until ms
: aud y sso aaaa. !. ~ isai (. : 5. isss, . page su I'll. laws
1877. page 81. section Is amended, that '.all
probate and ex-ericio probate judges now in.
0eice shall continue In sfice and discharge all
the duties Of judge Of probate under this article
until the expiration Of the terms for which they
we're respectively elected. and 81 hall recsive in
lull satisfaction Tor their services until the expi-
ration Of the time for which they were elected,
the compensation now provided by law. any
thing IN thiS articlet;ts the contrary 'notwlth-
standinI. except such ;ex-oficis probate Judges
40 have Jurisdiction Of . parr only OF the county,
In which case they shall receive the same COM
judges Of the county court, .snd no NOR; :prssyi-
Courts .no or any Ge@Ssri thereof Soff phs We s 81 thy
oouatiss Il the seneraf Election in he year ISIS,
and every four years thereafter. AMI in, every
county where, under existing laws, there shall
10 q judge OF probate whose term Of office does
net expire until the frst day Of January, eight
cen Hundred and seighty-ons.i there shah be u
judge Of probate elected tor such county at the
general election in the year eighteen hundred
and eighty. who shall hold his Office, for Two
Year eighteen hundred and eighty two . and - szs sry
four yssrs Thereafter. in said county, . Judge Of
probate shall be elected" -.
above quoted, are all that have. any material
bearing on the subject. There is ne ambiguity
IN either Of tbel sections of the statute. By the
County where, under existing laws, there shall
be a judge Of probate whose term of oince does
not expire until the frat day. Of January. 1881.
county at the general election in the; year lssO.
&C." There can be no election not authorized
W law: Ihsi Languages Of section l,ls2 did not
authorize the election of q probate jadge at the
November e%leorlon. 1880. except tor those coun-
ties the terms Of whose probate judges did not
it is contsnded that it was the intention OF the
legislature to provide Tor an election in every
case where the ineumbsnt's terms of ONCE had
uary. 1851. snd that the obligation to make slch
proyisi.n was imposed, upon the general ASSEM-
oiy-by the constitutions provisions alb I'VE cited.
ly IN the organization, jurisdiction, duties and
practice oflhe probate cOurts but ALL this may.
be attained without having an election for II pro-
bate judge in every county in the state at the
same time. But conccding that il vas the inten-
ton OF both the Trainers Of the constitution and
the membsrs Ofrthe general assembly, that there
should be uniformity in this respect also, we
cannot give effect To that intention against the
clear expression OF the act OF the legislature.
Resort may he had to the intention Of the legisla-
lure when IL can be ascertalned in 1.-The construc-
ton OF an act whose phga.eoloyy is ambiguous,
but when the language Of the act clearly ex.
presses = epecincpurpOse III. conflict with the al
leget general intent. It would lie an exercise of
Legislative .p~wer Wy Iie.oourIs 70 give effect 10
sucn general intent against the express provIs-
What weaid be tho limit of such authority If
claimed by the courts ? ~, .
Can they 60 outside the language OF the act to
Ascertain that The leHIsl2ture meant one thing
when 1t declared another, and give the act y
construction in harmony with such sscertuined
INTENT The proposition furnishes its own refu-
tatioa. The sections. ofths constitution on tnis
subject are not self enforcing.
The constitution does not establlsh the probate
courts or the uniformity which It requires. Leg
lsAatlve enactments are required to carry those
provisions INTO effect. We Cannot amend sec
lion l.lS2 by striking. the words mot and
''uatii' from the proviso and adding words to
existing laws, there shall be . judge OF probate
whose term Of office shall expire on or before
' tns a': 81, s.y Of J .;s. Y 1881, there shall DC =
That such are the changes in, the reading of
that section necessary to support the views oil
the relatoris oonc!usivs on the. question under
concur. .a D. r JNO, W: HENRY.
SrATI OF AIssoUR1,-Sct
l.. Henry W. Ewing. Clerk of the Supreme
Court OF Missouri, do hereby certify that The
foregoing 10 = true copy OF the opinion of said
court, delivered in the foregoing entitled cause.
on Inc ..a DAY ny Of April; 1881 as FULLY as the same
In testimony whereof. 1 have hsreunto set
ny hand and aaixed the seal Of said
lSeal.l supreme Court. Done at Office, IN
the City of Jefferson, State aforesaid,
HENRY ". EWING, Clerk.
CHAs. G.. GUENTHER, D. e.
~-
CT DOM want that Stuff,
Is what q lady of Boston said to her busband