(dissenting). — As stated in the majority opinion of the court, this is a proceeding by quo warranto instituted by the Attorney-General ex-officio, in the circuit court of Jackson county, Missouri, to oust respondent Hans Lund from the office of city comptroller of Kansas City.
Upon a trial of the issues made therein, the circuit court found in favor of respondent, and against relator, and by relator the case was brought here on appeal; and in an opinion written by Burgess, C. J., in which all the members of this court concur, except myself, the judgment of the circuit court has been reversed and the cause remanded with directions to that court to enter up a judgment of ouster against respondent, thus leaving the office of city comptroller of Kansas City vacant and without any incumbent, or any one claiming or asserting the right to exercise the functions and duties of the office. The sole question for solution then is as to the right of an appointive charter officer of Kansas City to hold over until his successor had been duly appointed, confirmed and qualified, there being no express provision in the charter providing that they shall so hold over or continue in office until their successors are appointed and qualified. Section 14 of article 4 of the charter of Kansas City, prescribing the terms of its appointive officers, and the manner of their appointment, reads:
“There shall be a city clerk, city assessor, city counselor, city comptroller and city physician, who shall be appointed by the mayor, by and with the advice and consent of the upper house of the common council, and shall hold their office for the term of two years, unless sooner removed, and who shall perform such duties as may be prescribed by this charter or any *245ordinance of the city; provided, however, that the appointments first made under this charter after the general city election of 1890 shall be for one year only, so that the appointments made thereafter shall be made at the beginning of the second year of the mayor’s term.”
If we ignore for the present the consideration of the effect of the direct statutory and constitutional provision in this State, in determining the question of the official tenure of all officers in the State, whether appointive or elective, and look alone to general rules for guidance, we must conclude from the overwhelming weight of authority, that in this country, at least, all municipal officers, whether appointive or elective, will hold over after the expiration of their fixed terms, and until their successors are elected or appointed and qualified, unless restrained by express provision to the contrary. That unless restrained by the authority under which he is elected or appointed, the right of the officer to exercise the function of his office will continue until his successor has been inducted, although the period for which he was elected or appointed may have expired, and this upon the plainest principle of reason and under the imperative demand of necessity, that the public, for whose benefit such office has been created, may at all times have an incumbent to discharge the duties incident thereto, and that the public interest may not suffer from the neglect of these duties, which must result from the want of an incumbent.
Thus the rule is announced in Tiedeman on Municipal Corporations, sec. 81:
“It is an almost universal rule in the United States that municipal officers, particularly those of a high grade, as the mayor and the officers or commissioners, who are placed at the head of the various municipal departments, shall be elected or appointed for a fixed and definite term. But, in the absence of any express constitutional or statutory prohibition, it is nevertheless the law, that all public officers, whose terms are fixed as to duration by law, are entitled to continue in office *246until a successor is legally chosen and qualified. To prevent unavoidable lapses, and to give certainty and permanence to this reasonable rule of. the American common law, it has in most of the States been incorporated into a statute.”
To the same effect Mechera on Public Offices and Officers, at section, 397, states the rule:
“It is usually provided by law ■ that officers elected or appointed for a fixed term shall hold not only for that term but until their successors are elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is then no successor elected and qualified to assume it, but the present incumbent will hold until his successor is elected and qualified, even though it be beyond the term fixed by law. Where, however, no such provision is made, the question of the right of the incumbent to hold over is not so clear, but the prevailing opinion in this country seems to be that unless such holding over be expressly or impliedly prohibited, the incumbent may continue to hold until someone else is elected and qualified to assume the office. Such a rule seems to be demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.”
In commenting upon the same subject, Dillon, in his work on Municipal Corporations, vol. 1 (4 Ed.), sec. 219, says:
“In this country, however, a public office is not considered as being in the nature of a grant or contract, and the officer, as against the public, has no freehold or property in the office; and it is almost an invariable provision of law that all officers shall be elected or appointed for a fixed and definite period. To guard against lapses, sometimes unavoidable, the provision is almost always made in terms that the officer shall hold until his successor is elected and qualified. But even without such. a provision, the American courts have not adopted the strict *247rule of the English corporations which disables the mayor or chief officer from holding beyond the charter or election day, but rather the analogy of the other corporate officers, who hold over until their successors are elected, unless the legislative intent to the contrary be manifested. Thus in Yermont it is held — there being no statute to the contrary, and such having been the practice — that school officers elected at the annual meeting hold over until others are elected at another annual meeting, whether more or less than a year from the time of their election.”
Without further references to,, or the citation of other authorities, and without stopping to consider what is or may have been the common-law rule of England on the subject, or the reason that led to its adoption there, we think the American common-law rule may be said to be, that in the absence of a charter provision to the contrary, the officers of a municipal corporation, appointed or elective, shall hold over after the expiration of their fixed terms until their successors are elected and qualified.
So much for the authority upon which respondent may have placed full reliance, in holding to and discharging the duties of his office, after the dates of the expiration of his official term in the absence of an express declared policy in his own State on that subject, as manifest in section 8847, Revised Statutes 1899, which reads: “All other officers elected or appointed by the authority of the laws of this State shall hold their offices until their successors are elected or appointed, commissioned and qualified,” as well as by the constitutional mandate of section 5 of article 14 of the Constitution (defining the official tenure of all officers in the State), which provides: “In the absence of any contrary provision all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified.”
*248In the briefs filed by relator, the correctness of what has been designated the American common-law rule, of the right of all public officers to hold over after the expiration of their terms, and until their successors are elected or appointed and qualified, unless restrained by Constitution or statutory prohibition, is challenged and denied, as is also the application of the provision of section 5, article 14 of our State Constitution, to the municipal officers of the State. But as the error of relator’s contention on these two propositions has been declared in the majority opinion of the court, we will make no further comments upon them, but address our remarks to what we consider the errors of the majority opinion, made after its recognition of the general rule above announced, and after holding that the provisions of section 5 of article 14 of the Constitution applied as well to municipal officers as to state and county officers.
If section 5 of article 14 of the Constitution is applicable i.o municipal officers, and so the majority opinion asserts, what effect must it have upon the official tenure of the respondent herein who holds his office under section 14 of article 4 of' the city charter of Kansas City, which fixes the term at two years from the time of his appointment and qualification unless sooner removed ? Read into that section the provision of section 5 of article 14 of the Constitution, and the officials therein designated, shall hold their office, during their official term of two years, and until their successors shall be appointed and qualified ; and this must certainly be done, unless in said section 14 or in some other section of the charter a contrary provision be found for terminating their official tenure before their successors are appointed and qualified. And this, in our opinion, does not exist.
But, says the majority opinion in this case, there is found in the charter provision of section 14 of article 4, what is properly considered “a contrary provision” within the meaning of section 5 of article 14 of the Constitution, wheréby the *249intent of its framers to provide against the appointive officer, named therein, holding over is made most manifest; and this is discovered in what the court designates “the restrictive words,” “for the term of two years unless sooner removed,” found in said section defining the official tenure of said appointive officers.
It may be that in a sense the words “for the term of two years” can be said to be “restrictive,” in this, that the period for the expiration of the term of office provided for in the section, is for two years from the appointment and qualification of the officer, rather than for three years or four years or for any greater period of time; but certainly there is nothing in the words themselves that can be said to exclude the idea of the right of the officers whose term is thus designated, to hold over after the expiration of the prescribed term and until a successor has been appointed and qualified, in order to prevent a vacancy in the office; or that would indicate that the framers of the charter, in the use of these words, “and shall hold their office for the term of two years,” meant to subject their city, at some time, to the almost certain embarrassment of being without the five appointive officers named in said section of the charter, resulting from a conflict between its mayor and the upper house of the common council, such as the city has witnessed for the past year.
If the words, “for the term of two years, unless sooner removed” can be said to be restrictive in the sense of indicating that the appointive officers named in section 14 of article 4 of the charter, can not hold over after the expiration of their official term of two years, then we are at a loss to imagine to what officer or officers, the provision of section 5 of article 14 of the Constitution, could possibly apply. Less could not have been written, in the charter, and have defined the official terms of the office named, and to be appointed. Section 5 of article 14 of the Constitution was intended to apply, and can only apply to officers who have a fixed and defined term of office, and of *250them it says “they shall hold during their official terms, and until their successors shall be duly elected or appointed and qualified,” in the absence of a provision to the contrary appearing in the act creating and providing for such officers. To provide that an officer shall hold his office “for the term of two years, unless sooner removed,” is no more indicative of an intention on the part of the framers of the charter of Kansas City, to have respondent’s office immediately vacant after the expiration of two years from his appointment; or that he may not hold over to perform the functions and duties of the office until a successor is appointed and qualified to supersede him, than does the legislative provision of 1891, which provides that, the officers therein designated “shall he elected on the general election day A. D. 1894, and every four years thereafter,” indicate that the Legislature intended that the offices of justice of the peace and constable for the four districts of St. Louis therein provided for, should at the end of four years after the general election of 1894, become vacant in the event of failure to elect a successor in 1898.
This court in the case of State ex inf. Atty.-Gen. v. Smith, 152 Mo. 512, disposing of the contention there made, that a justice of the peace elected under the provision of the Act of 1891, held for the fixed term of four years only, and not until his successor was elected and qualified, in an opinion by Marshall, J., used this language: “There is no merit in defendant’s contention that under the Act of 1891, justices of the peace in St. Louis hold for a fixed term of four years, and not until their successors are elected and qualified. True the first section of that act requires an election at the general election in 1894 and every four years thereafter, and does not prescribe that the person so elected shall hold until his successor is elected, but such a provision was not necessary in the statutes to accomplish this result, for section 5 of article 14 of the Constitution of Missouri provides: ‘In the absence of any contrary provision, all officers now or hereafter elected or ap*251pointed, subject to tbe right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified.’ There is no contrary provision in the Act of 1891, hence Haughton’s term continued until the regular election in 1898, and also until his successor should be duly elected and qualified, and such a continuance after the election in 1898, was as much a part of his term as that which preceded that election. [State ex rel. v. Ranson, 73 Mo. l. c. 92.] The appointment of defendant by the judges named was expressly predicated upon the theory that a failure to elect a successor to Haughton at the regular election in 1898, ipso fado, created a vacancy in that office. This is a misapprehension of the law in this State. Whatever may be the rule in other States, under their constitutions and statutes, it has been the settled law in this State ever since the decision in State ex rel. v. Lusk, 18 Mo. 333, that the failure to elect a successor to an office at the regular time for holding an election for .that office, does not create a vacancy in such office.”
Thus it will be seen that this court, in the above case not only held that the justice of the peace, holding office undfr the Act of 1891, which fixed his term at four years, could continue in office until a successor was elected and qualified, and that such continuance in office after the expiration of the four years for which he was originally elected, was as much a part of his term as that for which he was originally elected to fill; but went to the further extent of holding that there was no vacancy in the office (caused by the failure to elect a successor in 1898) such as to authorize the appointment of a successor, to the then holding over incumbent, for the ensuing four years. In this last position of the court, however, I did not concur. While in that case I recognized the right of the incumbent Haughton to hold over after the expiration of his four-year term, and to exercise the duties of the office, that the public might not suffer from the want of an incumbent, as provided in section 5 of article 14 of the Constitution, he should do so until a successor *252was elected or appointed and qualified to take his place, I still thought, there was in contemplation of law a vacancy in the office, in the sense, and to the extent, that a successor might be named, by the appointing power authorized to fill vacancies in that office, as was attempted to be done, and, as I thought, effectually accomplished. In this position I stood alone, the majority of the court holding, as said before, not only that the incumbent Haughton was entitled to hold over after the four years for which he was elected by reason of the provision of section 5, article 14 of the Constitution, but that he was entitled to hold over and exercise the duties of the office until the next general election in 1902, and that his office at no time became vacant in the sense that a successor might be appointed or for any other purpose, and further that the respondent Smith, who was appointed to fill the supposed vacancy in the office, in the attempt to exercise the function thereof was an intruder, and the court’s writ of ouster went against him.
In the present majority opinion the entire doctrine of the Smith case is now to be abandoned unless it can be asserted that the words found in the charter “shall hold this office for the term of two years unless sooner removed” defining respondent’s tenure of office, are more restrictive in character than the words “shall be elected on the general election day A. D. 1894, and every four weeks thereafter,” found in the Act of 1891, designating the official terms of the officers therein named. As read by me, the difference in the language employed in the two acts before the court, in the Smith case, and in this case, appears to be one of phraseology only, and not of substance or meaning, and I think that it was due to the court and to the profession (who must read and consider these two cases for the future guidance of its action) that the difference in meaning of the language used in the two acts construed should have been pointed out in the present majority opinion, as such opposite and irreconcilable results followed their consideration. Wherein lies hidden the difference in meaning of the language *253of the two provisions construed, other than that, under the charter provision in question, the officers appointed axe to hold for a term of two years unless sooner removed, wliije the officers named in the Act of 1891 are given the longer term of four years ? It is not sufficient merely to say that the provision of section 5 of article 14 of the Constitution applies to the officer named in the Act of 1891, but not to those designated in section 14 of article 4 of the charter in question, or merely to announce arbitrarily, that the charter provision “and shall hold their office for the term of two years unless sooner removed,” is more restrictive than the language of the Act of 1891, construed in the Smith case “shall be elected on .the general election day A. D. 1891, and every four years thereafter
This court-discovered difference in the meaning of the language of the two acts should have been pointed out and made clear in the majority opinion, in order that the bar and the office-holding citizens of the State may know, not only how the present case and the Smith case were decided, but to what class and character of offices in the State the provision of section 5 of article 14 of the Constitution is to apply, and from what particular class its provisions are to be withheld, and why.
But, further says the court in the majority opinion, the “contrary provision” mentioned in the Constitution, need not be found in the charter in express words, but may be sought out and discovered by implication drawn from the charter provision taken as a whole, and from this premise has been evolved the conclusion, that as other sections of the charter, providing for the office of mayor and the other elective officers of the city, have fixed their term of office for two years and until their successors have been duly elected and qualified, and that as section 14 of the charter relating to the five appointive offices above indicated (of which respondent holds one) is silent upon the subject of holding over after the term of two years, the plain inference is that they are not to hold over after the two years for which they were appointed, and until their successors are *254elected and qualified, that such, implications constitute a “contrary provision,” within the meaning of those words, as they appear in section 5 of article 14 of the Constitution.
By such a process of reasoning the solemn language of the Constitution is robbed of all significance and meaning. Certain it is that the plain and unambiguous language of section 5 of article 14 of the Constitution, “in the absence of a contrary provision,” should not, by any process of construction or misconstruction, be reduced to mean, “in the absence of a possible inference to the contrary,” which courts may find by comparing the section of the charter in question, to which the constitutional provision can, and is sought to be applied, with other sections of the charter to which it has no application and can not apply. The logic of the majority opinion in this regard, as I understand it, may be thus stated: the provision of section 5 of article 14 of the Constitution applies alike to municipal and to state and county officers; that it would apply to the five appointive officers named in section 14.of the charter provision in question, but for the fact, that by other sections of the charter, it is provided that the elective officers of the city, shall hold, not only during their official term, but until their successors have been elected and qualified, and, therefore, the inference must be, that it was the intention-of the framers of the charter, that the five appointive officers (named in section 14 of the charter) were not to hold over after the expiration of their fixed term of office and until their successors are appointed and qualified, because they did not so express themselves in direct words in said section 14. This court has no right to presume that the framers of our Constitution or the people who adopted it, did not understand the full force and import of the language employed therein, as we are not authorized-to presume that the framers of the Kansas City charter did not understand the full significance of its charter provision, and also those of our Constitution, and appreciating the application, of the Constitution to the *255provisions of section 14 of article 4 of the charter, that they did not know that its provisions render unnecessary in said section 14 of the charter, the repetition of the words, “and until their successors are appointed and qualified,” used in previous sections of the charter (defining the official tenure of the city’s elective officers). The words found in section 15 of article 4 of the charter, “until their successors are elected and qualified,” gave it no meaning not found in the words of section 14 of article 4, where those words are omitted, if the provision of section 5 of article 14 of the Constitution is not ignored; and we should not presume that the framers of the Kansas City charter did not know and realize that fact.
In our view, it was the plain duty of the courts, in construing both the charter and the constitutional provisions in question, to give to the words employed therein their ordinary and common significance, and as said in State ex rel. v. Johnson, 132 Mo. 109, “not to search for occult and strained construction.” Considered from this point of view, what then, is the meaning to be given the phrase “contrary provision” as found in the constitutional provision in question? The natural and ordinary import of the phrase, the one which is promptly suggested to the mind on being first seen or heard, is a negative declaration expressed in words. Every one upon seeing or hearing the words, “in the absence of a contrary provision” whether learned or unlearned, instantly, without effort, naturally attaches this meaning to them, because it is according to the general ordinary and common use thereof. As applied to legislation the word “provision” has this well-understood meaning, “actual expression in language” ; the clothing of legislative 'ideas in words, which can be pointed out upon the page and read with the eye; not a conjecture, or a supposition, or an inference drawn from other language referring to a different subject or matter.
The language of section 14 of article 4 of the Kansas City *256charter, defining the term of respondent’s office, itself needed no construction from the hand of this court. It is clear, specific and definite as it is possible for language to have been written (“shall hold their office for the term of two years, unless sooner removed”). To meet the necessity of just such language, anticipated in charters, ordinances and statutes, the provision of section 5 of article 14 of the Constitution was inspired, adopted and intended to apply, and when so applied, we have a constitutional construction as to the effect of such language used in defining the official tenure of all officers in this State, and to that construction the courts and the officer alike should acknowledge obedience (“shall hold their offices for the term of two years, and until their successors are appointed and qualified”).
Eor the foregoing reasons, I think the judgment of the circuit court, denying the ouster and dismissing the writ, should have been affirmed.