(1) During a vacancy in the office of the clerk of the circuit court and pending the appointment of a successor by the Governor and qualification of such officer, the circuit court may appoint a temporary circuit clerk; (2) Such an appointment where the offices of circuit clerk and recorder are combined, also constitutes the person appointed by the court ex officio recorder as a matter of law; (3) Such clerk appointed by the circuit judge is entitled to the emoluments of the office during the period he serves as circuit clerk and recorder of deeds; (4) The person appointed by the Governor to fill such a vacancy is not entitled to any emoluments of office until such time as he duly qualifies for such office.

CIRCUIT COURT: {1) During a vacancy in the office CIRCUIT CLERKS: of the clerk of the circuit court CIRCUIT COURT CLERKS AND RECORDER OF DEEDS: and pending the appointment of a successor by the Governor and qualification of such officer, the circuit court may appoint a temporary circuit clerk; (2) Such an appoint- RECORDER OF DEEDS: VACANCIES: ment where the offices of circuit clerk and recorder are combined, also constitutes the person appointed by the court ex officio recorder as a matter of law; (3) Such clerk appointed by the circuit judge is entitled to the emoluments of the office during the period he serves as circuit clerk and recorder of deeds; (4) The person appointed by the Governor to fill such a vacancy is not entitled to any emoluments of office until such time as he duly qualifies for such office. ornfiON tfO. 23 November 6, 1969 Honorable Haskell Hol~n Auditor of the State of Missouri Capitol B~ilding Jefferson Oity, Missouri 65101 Dear Mr. KolJne.n: F 1 LED ~3 This opinion is in re•ponae to your questions concerning the office of the circuit clerk of a county in which a vacancy was caused by death, to wit: " ... the reeordt reveal that the succes- sor to the office of circuit clerk, and ex-officio recorder waa appointe4 by the Governor on July 21, 1967, but aid not take the oath of office until July 27, 1967. "The questions arising as a result of the circuit court order [that upon the death of the elected otticial, the deputy circuit clerk and ex officio recorder ot deeds re- main in office until a succetsor is appointed) and the variance between the date of appoint- ment and the date the appointee took the oath of office are aa follows: "1. Would the individual appointed as deputy circuit clerk and ex-officio recorder be authorized to act and en- titled to receive compensation from the county during the period the office was vacant, namely July 3 to July 26, inclusive, 1967? Honorable Haskell Holman 112. Would the individual appointed to fill the vacancy be entitled to receive compensation beginning on the date of appointment, July 21, or beginning on the date that the oath of office was taken, July 27, 1967?" Section 483.020, RSMo, provides for the filling of a vacancy created by the death of an elected circuit clerk in the following manner: "When any vacancy shall occur in the office of any clerk of a court of record so elected, by death, resignation, removal, refusal to act or otherwise, it shall be the duty of the governor to fill such vacancy by appointing some eligible person to said office, ... " Although the statutory power to fill the vacancy is vested exclusively in the Governor, courts possess broad power to act in the interest of self-preservation. The Missouri Supreme Court, in the case of Pogue vs. Swink, 284 S.W.2d 868, 872 (1955), held: " ... Even in the absence of specific statutes upon the subject, courts of general jurisdiction have the inherent power to do all things reasonably necessary to preserve their existence and function as a court ... and have the power to appoint necessary attendants, including clerks and janitors .. II The intent of the order by the circuit judge was clearly to appoint a temporary clerk of his court so that the court's business should not be interrupted pending action by the Governor. It is our opinion that the order was sufficient to effect this intent and authorize the appointee to act as the clerk of the circuit court even though the language of the order speaks of continuing to act in the capacity of deputy circuit clerk. The offices of circuit clerk and recorder have been combined in such county pursuant to Section 59.040, RSMo 1959. Accordingly the individual lawfully occupying the office of clerk also has the authority to act as ex-officio recorder of deeds. Thus, such a person is de jure circuit clerk and ex-officio recorder and entitled to the emoluments of the office until a successor is duly appointed or elected and qualified. Finally, with regard to your question concerning whether or - 2 - Honorable Haskell Holman not the individual appointed by the Governor to fill the vacancy would be entitled to receive compensation beginning on the date of the appointment, or beginning on the date that the oath of office was taken, it is our opinion that such individual is not duly qualified until he takes the oath of office; and therefore, he is not entitled to any emoluments of the office until he quali- fies. In this respect, we refer to you our Opinion No. 93, dated May 13, 1963, issued to the Honorable Joe R. Ellis, copy enclosed, in which we held that the statutory amount established for the office merely fixes the rate of pay per annum and does not entitle the holder of that office to a full year's pay when he serves less than a year . In this instance the clerk who was duly appointed by the court held the office until the governor ' s appointee was duly appointed and qualified. Coates vs. Parthman, 334 S.W. 2d 417 {1960); State vs. Brown, 274 S.W. 965, 220 Mo. App. 468 {1925). Therefore, it is clear that the appointee of the Governor is not entitled to any of the emoluments of the office until he qualifies, and that the oath of office is a condition to qualification under Section 483.035, RSMo 1959. CONCLUSION It is therefore the opinion of this office that: {1) During a vacancy in the office of the clerk of the cir- cuit court and pending the appointment of a successor by the Governor and qualification of such officer, the circuit court may appoint a temporary circuit clerk; (2) Such an appointment where the offices of circuit clerk and recorder are combined also constitutes the person appointed by the court ex officio recorder as a matter of law; (3) Such clerk appointed by the circuit judge is entitled to the emoluments of the office during the period he serves as circuit clerk and recorder of deeds; (4) The person appointed by the Governor to fill such a vacancy is not entitled to any emoluments of office until such time as he duly qualifies for such office . The foregoing opinion, which I hereby approve, was prepared by my assistant, John C. Klaffenbach. Enc: Opinion No. 93 Ellis, 5/13/63 Yours very truly, ~eJ-f'.J2 JOHN C. DANFORTH Attorney General - 3 -