Section 2.6 Vacancies—Filled by Appointment or Election

• Library: Local Government Deskbook (2017 Ed.)

C. (§2.6) Vacancies—Filled by Appointment or Election

An office is generally vacant when it is first created or after the death, resignation, or removal of an incumbent. State ex rel. Brown v. McMillan, 18 S.W. 784, 786 (Mo. 1891). An office is not vacant when someone may legally claim title to the office. See State ex rel. McCune v. Ralls Cnty. Court, 45 Mo. 58 (1869) (there is no vacancy when judgment of an ouster is obtained against the incumbent of an office on ground that the relator has superior title; a vacancy exists only when no one has title to the office).

When a vacancy occurs, it is statute or charter that dictates how the vacant office is filled. See State ex inf. Braun v. Kellar, 871 S.W.2d 463, 464 (Mo. App. E.D. 1994). Accordingly, it is possible that an office—vacant in a colloquial sense—is not legally vacant (ready to be filled) until a precondition is satisfied. In Kellar, for example, the Board of Directors of the Cottleville Community Fire Protection District had voted to increase their size from three to five members in accordance with Missouri statute. The three-member board (actually two, as one of the members was not present at the time) then attempted to directly appoint...