Opinion
May 2, 1941.
1. RECORDER OF DEEDS. The statute expressly creates the office of recorder of deeds in counties of twenty thousand or more population. [Sec. 13147, R.S. 1939.]
It does not expressly create that office in counties of less than twenty thousand population but provides that a circuit clerk in such a county shall be ex officio recorder of deeds and give bond as such in addition to bond as clerk.
2. RECORDER OF DEEDS: Change in Population. A change in population in a county after the circuit clerk had become ex officio recorder of deeds did not create a new office.
3. LEGISLATIVE INTENT: New Office. The courts indulge in a strong presumption against a legislative intent to create a condition which might result in a vacancy in a public office.
4. RECORDER OF DEEDS: Decrease in Population. The statutes provide that in a county of twenty thousand or more population the office of recorder of deeds shall not be filled until the next general election where there is a decrease in population below twenty thousand.
5. RECORDER OF DEEDS: Increase in Population. The statute, Section 13155, Revised Statutes 1939, did not expressly provide that a circuit clerk, on the increase in population beyond twenty thousand, should continue as ex officio recorder of deeds until the end of his term.
But the change in population does not affect his term as circuit clerk and by clear implication as recorder of deeds until the end of his term.
It follows that the Legislature intended the question of population to be determined as of the date of the election of circuit clerks and recorders of deeds rather than determined at the time the census bureau notified the Secretary of State of the change in population.
WRIT DENIED.
Henry C.M. Lamkin and Baker Baker for relator.
(1) On February 11, 1941, there was a vacancy in the office of Recorder of Deeds of Callaway County, Missouri, justifying appointment of relator by the Governor. Art. I, Chap. 89, R.S. 1939; Sec. 11509, R.S. 1939; Art. V, Sec. 2, Mo. Const. (2) The word "shall" used in a statute is mandatory unless context shows contrary. K.C. Interurban v. Davis, 197 Mo. 669, 95 S.W. 881; State ex rel. v. Wurdeman, 295 Mo. 566, 246 S.W. 194. (3) When a statute provides for changes in the status of county officers when there is a change in population according to United States decennial census, such change of status occurs whenever the information as to population change is available. Kay v. Moniteau County, 134 S.W.2d 81.
W.B. Whitlow and T.A. Faucelt for respondent.
(1) A vacancy in office exists only where there is no person authorized by law to discharge the duties of the office. Therefore, there is no vacancy in the office where there is a " de jure" incumbent of such office actually in possession of it. 29 Cyclopedia of Law Prac., p. 1400, sec. 3; State v. Ralls County, 45 Mo. 58; People v. Rodgers, 118 Cal. 393; State v. Harrison, 113 Ind. 434; Monroe v. Wells, 83 Md. 505; Thomas v. Burruss, 23 Miss. 550; People v. McAdoo, 110 N.Y. App. Div. 432; State v. Compson, 34 Or. 25, 54 P.2d 349; State v. Henderson, 4 Wyo. 535, 35 P. 817. (2) A " de jure" officer is one who is regularly and lawfully elected or appointed and inducted into office, and exercises the duties as his right. People v. Staton, 73 N.C. 550; Cyclopedie Law Dictionary defines "De Jure" as follows: Rightful: of right; lawfully; by legal title. (3) An office is not vacant so long as it is supplied in the manner prescribed by the Constitution or law with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it. 22 R.C.L., p. 438, sec. 91; State v. Harrison, 113 Ind. 434, 16 N.E. 384.
Original action in quo warranto. Relator seeks to have respondent, the circuit clerk of Callaway County, ousted as ex officio recorder of deeds of said county. At the time of the general election in 1938 the population of Callaway County was less than twenty thousand. (Census of 1930.) At said election respondent was elected circuit clerk. Under the statute he became ex officio recorder of deeds. In 1940 the county had a population of 23,094, which fact was duly certified by the census bureau to the Secretary of State. On February 11, 1941, the Governor, assuming that a vacancy existed, appointed relator recorder of deeds of said county. It is admitted that he was duly commissioned; that he subscribed to the oath of office required by law, and that he tendered to the county court a statutory bond as recorder of deeds. The county court refused to approve the bond on the theory that a vacancy did not exist in the office. Relator made demand on respondent for the office, which was refused. The sections of the statute (R.S. Mo. 1939) for consideration follow:
"Sec. 13147 — Office of recorder of deeds. — There shall be an office of recorder in each county in the state containing 20,000 inhabitants or more, to be styled, `The office of the Recorder of Deeds.'"
"Sec. 13149 — Circuit clerks to serve in certain counties. — The clerks of the circuit courts shall be ex officio recorders in their respective counties, except in counties containing 20,000 inhabitants or more."
"Sec. 13150 — Clerk to furnish bond. — Every clerk, before entering upon the duties of his office as recorder, shall enter into bond to the state, in the sum not less than one thousand dollars ($1000) nor more than five thousand dollars ($5000) at the discretion of the county court, with sufficient sureties, to be approved by said court, conditioned for the faithful performance of the duties enjoined on him by law as recorder, and for the delivering up of the records, books, papers, writings, seals, furniture and apparatus belonging to the office, whole, safe and undefaced, to his successor."
"Sec. 13154 — Recorders to serve term for which elected. — That in the event any person has been elected or may hereafter be elected to the office of recorder of deeds in a county in which the office is a separate office at the time of such election, such office shall remain a separate office for the entire term for which such person has been or may be elected."
"Sec. 13155 — Election of recorder — when — bond. On the first Tuesday after the first Monday in November, 1934, and every four years thereafter, an election shall be held for said officer of recorder, in each county of the state where the office of clerk of the circuit court and recorder of deeds are separate, and the person so chosen at said election shall, on the first day of January next following, enter upon the duties of his office, first giving bond in the sum of not less than one thousand dollars ($1000) or more than five thousand dollars ($5000), at the discretion of the county court, conditioned for the faithful performance of the duties of his office, with at least two sufficient sureties, to be approved by the county court."
Relator contends that "when it was definitely ascertained that the population of Callaway County was more than twenty thousand inhabitants, a new office was immediately created."
[1, 2] The statute expressly creates the office of recorder of deeds in counties of twenty thousand or more population. [Sec. 13147.] It does not expressly create the office in counties of less than twenty thousand population. However, it provides that circuit clerks shall be ex officio recorder of deeds in such counties. [Sec. 13149.] It also provides that the circuit clerk in such counties, in addition to giving a bond as circuit clerk (Sec. 13285) shall also give a bond conditioned for the faithful performance of the duties of his office as recorder of deeds. [Sec. 13150.] Of course, a circuit clerk could not perform the duties of an office that did not exist. It follows that the change in the population of said county created no new office.
Relator also contends that the absence of legislation expressly providing the time of separation of the offices of circuit clerk and recorder of deeds, on a statutory change in population, shows that the Legislature intended an instant separation of the offices on official notice of said change.
In this connection it should be noted that the courts indulge a strong presumption against a legislative intent to create a condition that might result in a vacancy in public office. [46 C.J., pp. 971, 972.] It also should be noted that circuit clerks and recorders of deeds are elected at the same general election and each serve for a term of four years.
The statute under consideration became effective June 24, 1933. On that date the offices of recorder of deeds and circuit clerk, ex officio recorder of deeds, came into existence. Even so, the Legislature expressly provided that the office of recorder of deeds in counties of twenty thousand or more population, should not be filled until the general election in November, 1934, and every four years thereafter. [Sec. 13155.] It further expressly provided that a recorder of deeds in said counties shall continue in office until the end of the term, regardless of a change in population. [Sec. 13154.] These sections of the statute show that the Legislature intended the question of a decrease in population to be determined as of the date of the election of recorder of deeds rather than determined at the time the census bureau notified the Secretary of State of a change in population.
The Legislature did not expressly provide that, on a statutory increase in population, a circuit clerk should continue as ex officio recorder of deeds to the end of his term. However, a change in population does not affect the term of a circuit clerk. He continues as such until the end of his term. In this situation it must be ruled that, by clear implication, the Legislature, on a statutory increase in population, must have intended the circuit clerk to continue as ex officio recorder of deeds until the end of his term. It is not conceivable that the Legislature intended to avoid a vacancy on a statutory decrease in population, and, by the same enactment, to create a condition that might cause a vacancy on a statutory increase in population. It follows that the Legislature intended the question of population to be determined as of the date of the election of circuit clerks and recorders of deeds rather than determined at the time the census bureau notified the Secretary of State of the change in population.
There is no vacancy in the office of recorder of deeds of Callaway County, and the writ should be denied. It is so ordered. All concur.