(dissenting).
I respectfully dissent. In my opinion there is no statutory authority for a county of the second class to elect a prosecuting attorney for a two-year term nor is there any authority found in section 56.010 that authorizes a county of the second class to elect a prosecuting attorney in any years other than 1974 and at four-year intervals thereafter.
The counties involved in this case were third-class counties at the time of the 1974 general election. Pursuant to 56.010, a prosecuting attorney was elected in each of these counties to “hold . . . office for two years, and until his successor is elected, commissioned and qualified; . . . .” In State ex rel. Hulen v. Brown, 274 S.W. 965 (Mo.App.1925), the court held at 967: “The law is well settled that, where a public officer is elected or appointed to hold office for a definite period, and until his successor is appointed or elected and qualified, failure to appoint or elect a successor at the end of such period does not work a vacancy. State ex rel. Lusk, 18 Mo. 333; State ex rel. Stevenson v. Smith, 87 Mo. 158. It follows that the incumbent properly holds until his successor is elected or appointed and qualified, and it is then only that his term expires. State ex rel. Robinson v. Thompson, 38 Mo. 192; State ex rel. v. Ranson, 73 Mo. 78.”
It is, therefore, my opinion that the prosecuting attorneys that were elected in 1974 in the counties involved in this ease were elected for a term of two years but that such prosecutors would continue in that office until their successors were elected or the incumbent prosecutor died, resigned, or was ousted, for it would only be in those circumstances that a vacancy would exist. In my opinion, the next election authorized by statute for prosecuting attorneys in the counties involved in this case are the primary and general elections of 1978.
I would quash the writ of mandamus in this case and, therefore, I dissent.