State Ex Inf. Taylor v. Kiburz

ON MOTION FOR REHEARING We think it a sufficient answer to respondent's motion for a rehearing to point out with more particularity that there was a vacancy in the new office of county highway engineer and surveyor in St. Louis County, after the death of Jablonsky, which the Governor could fill by appointment for the following reasons: Although the terms of county surveyors and all provisions relating to the office of county surveyor were continued in force in all counties "unless otherwise provided by law", (H.C.S., H.B. 793, Sec. 13190a, Laws 1945, p. 1759) nevertheless, when Jablonsky died the old office of county surveyor (and ex officio county highway engineer in St. Louis County) terminated. This is true because it had been "otherwise provided by law" by H.C.S., H.B. 794 (Laws 1945, p. 1400) providing that "there is hereby created the office of county highway engineer and surveyor" to supersede it in class one counties. This new office was in existence before Jablonsky died because this law went into effect before he died. The old office continued as long as Jablonsky continued to hold it, because his tenure in it was protected, both by Sec. 3 of the Schedule in the 1945 Constitution and new Section 13190a. However, after his death the office he held (county surveyor and ex officio county highway engineer) no longer existed in St. Louis County, but there was a new office then in existence (the office of county highway engineer and surveyor) which no one occupied. Thereafter, there was a vacancy in this new office which the Governor could fill by appointment. It does not violate Section 8, Article VI of the 1945 Constitution to have this new office in operation in St. Louis County now, although the old one continues in Jackson County (the only other Class 1 county) during the term of office therein, which commenced prior to the adoption of the Constitution, because the Constitution itself provided for this situation, in Section 3 of the Schedule. The motion for rehearing is overruled. *Page 318