BURGESS, C. J.
This proceeding was begun ex-officio by the Attorney-General in the circuit court of Jackson county, Missouri, to oust respondent, Hans Lund from the office of city comptroller of Kansas City, Missouri. There was judgment for respondent from which plaintiff appeals.
Eespondent was on the seventeenth day of April, 1899, by and with the advice and consent of the Common Council of Kansas City, Missouri, appointed by its then mayor, J ames M. Jones, city comptroller for said city. The appointment was made under section 14, article 4, of the charter of the city which is as follows:
“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 [234]*234term of two years, unless sooner removed, and who shall perform such duties as may be prescribed by this charter or any ordinance 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.”
No one has ever been appointed and confirmed as the successor of respondent, and his contention is that having been appointed for a term of two years, he holds over until his successor is appointed and confirmed.
It was held in People v. Tieman, 30 Barb. 193, 8 Abb. Prac. 359, and later by the Supreme Court of the United States in the case of Badger v. United States ex rel. Bolles, 93 U. S. 599, that by the common law, and, in most of the States, when the term of office to which one is elected or appointed expires, his power to perform his duties ceases; that this is the general rule.
In this State, however, if the common-law rule be as stated in Badger v. Bolles, supra, it does not apply with the exceptions as to judicial officers and members of the legislature, and, in the absence of words indicating that the officer is to hold over until his successor is elected or appointed and qualified, “it is sometimes a matter, of doubt whether or not the incumbent can hold over.....Sometimes, however, where. words of holding-over import are omitted, it may remain doubtful whether such a right was intended to be conferred. In which case the prevalent rule of construction in this country appears to be that if no restrictive words be used, no terms expressly or impliedly prohibiting holding over, then such continuance in official power and life is permissible and valid, until a successor be chosen,” etc. [State ex rel. v. Perkins, 139 Mo. 106.]
The same rule is announced in Dillon on Municipal Corpprations (4 Ed.), secs. 219, 220; Tiedeman on Munic. Corp., [235]*235sec. 81; Mechem on Public Offices and Officers, sec. 397; and in Throop on Public Officers, secs. 323, 325.
In almost all of the States it is expressly declared in constitutional or by statutory provision, that all officers shall hold ever until their successors are elected, or appointed, and qualified, and, even when there is no such provision, as a rule they do so; but where there is a constitutional or statutory restriction expressed or implied to the contrary that rule does not obtain, and the term of office fixed by law expires at the end of the term, and, although the officer may hold over after the expiration of his term, he is thereafter de facto an officer (State ex rel. Stevenson v. Smith, 87 Mo. 158; Robb v. Carter, 65 Md. 321) and his acts can not be called in question in a collateral proceeding. Of the adjudications relied upon by defendant the following were proceedings in which the right of some officer to hold over was collaterally called in question: Wier v. Bush, 4 Littell (Ky.) 430; McCall v. Byram Mfg. Co., 6 Conn. 428; Tuley v. State, 1 Ind. 500; Bath v. Reed, 78 Me. 276; Stratton v. Oulton, 28 Cal. 44; Wheeling v. Black, 25 W. Va. 266. State ex rel. v. Harrison, 113 Ind. 434, is also relied upon by defendant, but in that case the organic law of that State upon which the decision is bottomed expressly provides, that, “whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be so construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified,” so that, it is perfectly apparent from that provision of the Constitution that there was no escape from the conclusion reached by the cortrt, that is, that all officers in that State hold over after the expiration of their terms until their successors are elected, or appointed, as the case may be, and are qualified.
The People v. Blair, 82 Ill. App. 570, 181 Ill. 460, is another case relied upon by defendant. That was a direct [236]*236proceeding by quo warranto against tbe defendant Blair to test his right to hold and execute the office of city marshal of the city of Marengo, which it was averred he had usurped without right, and it was held that municipal officers appointed or elected for a fixed term hold over' till the election or appointment and qualification of their successors, unless.a contrary legislative intent is manifest, and as no such contrary legislative intent appears in the general act for the incorporation of cities, the incumbent Dunwoody held over until his successor was elected, or appointed and qualified.
Now, it is expressly provided by the section of the charter quoted that the city clerk, assessor, counselor, comptroller and city physician, “shall hold their respective offices for the term of two years, unless sooner removed; .. . provided, 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.” Thus, by restrictive words fixing the tenure of the office at two years, and at a definite and fixed time. But even if not so expressed it is clearly implied from the language used, that the officers named shall hold their offices for two years only from the date of their appointments, and, “that which is implied in a statute is as much a part of it as what is expressed.” [Sutherland on Statutory Construction, sec. 334.]
By section 14 of the charter of Nansas City all officers of the city including the mayor are required to be elected at an election to be held for that purpose on the first Tuesday after the first Monday in April, every two years; while the appointment of all officers first made under the charter after the general city election of 1890 was for one year only, and the appointments made thereafter were required to be made at the beginning of the second year of the mayor’s term. [Sec. 14, supra.] The object of having the elective officers elected at one time, and the appointment of the appointive officers at another [237]*237time, evidently was that the city administration might not be embarrassed in the conduct and management of its affairs, by too many inexperienced officers. Besides, if the terms of the appointive officers do not expire at the expiration of two years from the time of their appointments, why is it that the charter does not provide that they shall hold over until their
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BURGESS, C. J.
This proceeding was begun ex-officio by the Attorney-General in the circuit court of Jackson county, Missouri, to oust respondent, Hans Lund from the office of city comptroller of Kansas City, Missouri. There was judgment for respondent from which plaintiff appeals.
Eespondent was on the seventeenth day of April, 1899, by and with the advice and consent of the Common Council of Kansas City, Missouri, appointed by its then mayor, J ames M. Jones, city comptroller for said city. The appointment was made under section 14, article 4, of the charter of the city which is as follows:
“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 [234]*234term of two years, unless sooner removed, and who shall perform such duties as may be prescribed by this charter or any ordinance 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.”
No one has ever been appointed and confirmed as the successor of respondent, and his contention is that having been appointed for a term of two years, he holds over until his successor is appointed and confirmed.
It was held in People v. Tieman, 30 Barb. 193, 8 Abb. Prac. 359, and later by the Supreme Court of the United States in the case of Badger v. United States ex rel. Bolles, 93 U. S. 599, that by the common law, and, in most of the States, when the term of office to which one is elected or appointed expires, his power to perform his duties ceases; that this is the general rule.
In this State, however, if the common-law rule be as stated in Badger v. Bolles, supra, it does not apply with the exceptions as to judicial officers and members of the legislature, and, in the absence of words indicating that the officer is to hold over until his successor is elected or appointed and qualified, “it is sometimes a matter, of doubt whether or not the incumbent can hold over.....Sometimes, however, where. words of holding-over import are omitted, it may remain doubtful whether such a right was intended to be conferred. In which case the prevalent rule of construction in this country appears to be that if no restrictive words be used, no terms expressly or impliedly prohibiting holding over, then such continuance in official power and life is permissible and valid, until a successor be chosen,” etc. [State ex rel. v. Perkins, 139 Mo. 106.]
The same rule is announced in Dillon on Municipal Corpprations (4 Ed.), secs. 219, 220; Tiedeman on Munic. Corp., [235]*235sec. 81; Mechem on Public Offices and Officers, sec. 397; and in Throop on Public Officers, secs. 323, 325.
In almost all of the States it is expressly declared in constitutional or by statutory provision, that all officers shall hold ever until their successors are elected, or appointed, and qualified, and, even when there is no such provision, as a rule they do so; but where there is a constitutional or statutory restriction expressed or implied to the contrary that rule does not obtain, and the term of office fixed by law expires at the end of the term, and, although the officer may hold over after the expiration of his term, he is thereafter de facto an officer (State ex rel. Stevenson v. Smith, 87 Mo. 158; Robb v. Carter, 65 Md. 321) and his acts can not be called in question in a collateral proceeding. Of the adjudications relied upon by defendant the following were proceedings in which the right of some officer to hold over was collaterally called in question: Wier v. Bush, 4 Littell (Ky.) 430; McCall v. Byram Mfg. Co., 6 Conn. 428; Tuley v. State, 1 Ind. 500; Bath v. Reed, 78 Me. 276; Stratton v. Oulton, 28 Cal. 44; Wheeling v. Black, 25 W. Va. 266. State ex rel. v. Harrison, 113 Ind. 434, is also relied upon by defendant, but in that case the organic law of that State upon which the decision is bottomed expressly provides, that, “whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be so construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified,” so that, it is perfectly apparent from that provision of the Constitution that there was no escape from the conclusion reached by the cortrt, that is, that all officers in that State hold over after the expiration of their terms until their successors are elected, or appointed, as the case may be, and are qualified.
The People v. Blair, 82 Ill. App. 570, 181 Ill. 460, is another case relied upon by defendant. That was a direct [236]*236proceeding by quo warranto against tbe defendant Blair to test his right to hold and execute the office of city marshal of the city of Marengo, which it was averred he had usurped without right, and it was held that municipal officers appointed or elected for a fixed term hold over' till the election or appointment and qualification of their successors, unless.a contrary legislative intent is manifest, and as no such contrary legislative intent appears in the general act for the incorporation of cities, the incumbent Dunwoody held over until his successor was elected, or appointed and qualified.
Now, it is expressly provided by the section of the charter quoted that the city clerk, assessor, counselor, comptroller and city physician, “shall hold their respective offices for the term of two years, unless sooner removed; .. . provided, 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.” Thus, by restrictive words fixing the tenure of the office at two years, and at a definite and fixed time. But even if not so expressed it is clearly implied from the language used, that the officers named shall hold their offices for two years only from the date of their appointments, and, “that which is implied in a statute is as much a part of it as what is expressed.” [Sutherland on Statutory Construction, sec. 334.]
By section 14 of the charter of Nansas City all officers of the city including the mayor are required to be elected at an election to be held for that purpose on the first Tuesday after the first Monday in April, every two years; while the appointment of all officers first made under the charter after the general city election of 1890 was for one year only, and the appointments made thereafter were required to be made at the beginning of the second year of the mayor’s term. [Sec. 14, supra.] The object of having the elective officers elected at one time, and the appointment of the appointive officers at another [237]*237time, evidently was that the city administration might not be embarrassed in the conduct and management of its affairs, by too many inexperienced officers. Besides, if the terms of the appointive officers do not expire at the expiration of two years from the time of their appointments, why is it that the charter does not provide that they shall hold over until their successors are appointed and qualified, as it does with respect to elective officers ? It is too plain for argument that the object indicated was the intention of the framers of the charter, otherwise they would have made, the same provision with respect to both classes of officers. It therefore seems obvious that the framers of the charter purposely omitted any provision that the appointive officers should continue to hold over until their successors-should be appointed and qualified; and that they intended that those offices should be immediately filled by tjie mayor upon the expiration of their terms.
In the case, of the State ex rel. Weber v. Beardsley, 13 Utah 502, the law provided that elective officers of a city should hold their respective offices for two years, and until their successors were elected and qualified. It also provided that the appointive officers of the city should hold their respective offices for two years, unless sooner removed by the city council. The court said: “The first section declares that elective officers shall hold for two years and until their successors are elected and qualified, while the latter section declares that appointive officers shall hold for two years unless sooner removed. The defendant is an appointive officer, and his legal title to the office terminated on the twelfth day of February, last, unless appointive officers, as well as elective, also hold until their successors are elected and qualified. Does the language of the two sections with respect to the term express the same idea ? They are found in the same act. The first declares in express terms that elective officers shall hold for two years and until their successors are elected and qualified; the latter for two years, unless' sooner removed. The language [238]*238differs. The language of the first section in express terms extends the incumbent’s term until his successor is elected and qualified, while the language of the other in express terms extends the incumbent’s term two years from its commencement. The legislators may have believed that the inconvenience, expense, and delay of filling an elective office would be greater than that of filling an appointive office. The first section continues in office an incumbent selected by the people, while the latter supersedes one appointive officer with another. We have been referred to a number of cases under constitutions or statutes providing that public officers should hold over until their successors should be elected and qualified. Others were mandamus cases, or cases involving collaterally acts of officers holding over — de fado officers. This is a direct proceeding to try the title to an office, not the validity of the act of the officer. In a direct proceeding, the incumbent must show a legal title to the office as against the State. A colorable title will not do. In a collateral attack, it would be sufficient to prove that Beardsley was in office exercising its functions when the act was done; but in a direct procedure like this one, he must show a perfect title: If he fails in any particular judgment must be given against him. [High, Extr. Rem. (2 Ed.), sec. 712; People v. Bartlett, 6 Wend. 422.]”
The charter of Kansas City having limited the time of appointive officers to two years from the date of their appointments, and defendant having been appointed on the seventeenth day of April, 1899, his term of office expired at the end of two years thereafter, and since the expiration of his term of office he has been simply an officer de facto, unless by reason of section five, article fourteen of the Constitution of this State he is continued in office until his successors shall be appointed and qualified. That section reads as follows: “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 [239]*239shall be duly elected or appointed and qualified.” Plaintiff contends that this provision of the Constitution does not apply to municipalities, but we are unable to concur in this view, for the following reasons: First, it is broad and comprehensive enough in its terms to include all officers whether they be state, county, township or municipal, and, there is nothing in it which is indicative of anything to the contrary, or which leaves any doubt as to its true meaning. Second, if there existed a doubt as to whether or not it embraces municipalities, that doubt can but be dispelled, when that section is taken into consideration with the various-provisions of the Constitution which in some way have reference to municipalities.
For instance:
Section 18 of the Bill of Eights, provides: “That no person elected or appointed to any office or employment of trust or profit under the laws of this State, or any ordinance of any municipality in this State, shall hold such office without personally devoting his time to the performance of the duties to the same belonging.”
Section 19 provides: “That no person who is now or may hereafter become a collector or receiver of public money, or assistant or deputy of such collector or receiver, shall be eligible to .any office of trust or profit in the State of Missouri under the laws thereof, or of any municipality therein, until he shall have accounted for and paid over all the public money .for which he may be accountable.”
Section 12 of article 4 provides that, “No senator or representative shall, during the term for which he shall have been elected, be appointed to any office under this State, or any municipality thereof; and no member of Congress or person holding any lucrative office under the United States, or this State, or any municipality thereof (militia officers, justices of the peace and notaries public excepted) shall be eligible to either house of the General Assembly, or remain a member [240]*240thereof, after having accepted any such office or seat in either house of Congress.”
Section 48 of article 4 is: “The General Assembly shall have no power to grant, ‘or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into and performed in whole or in part, nor pay nor authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”
Section 13 of article 9 provides: “The fees of no executive or ministerial officer of any county or municipality, exclusive of the salaries actually paid to his necessary deputies, shall exceed the sum of ten thousand dollars for any one year. Every such officer shall make return, quarterly, to the county court, of all fees by him received, and of the salaries by him actually paid to his deputies or assistants, stating the same in detail, and verifying the same by his affidavit; and for any statement or omission in such return, contrary to truth, such officer shall be liable to the penalties of willful and corrupt perjury.”
Section 18 of article 9 provides: “In cities or counties having more than two hundred thousand inhabitants, no person shall, at the same time, be a State officer and an officer of any county, city or other municipality; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities; but this section shall not apply to notaries public, justices of the peace or officers of the militia.”
Section 17 of article 10 provides: “The making of profit out of state, county, city, town or school district money, or using the same for any purpose not authorized by law by any [241]*241public officer, shall be deemed a felony, and shall be punished as provided by law.”
Section 24 of article 12 provides: “No railroad or other transportation company shall grant free passes or tickets, or passes or tickets at a discount, to members of the General Assembly, or members of the Board of Equalization, or any State, or county, or municipal officers; and the acceptance of such pass or ticket, by a member of the General Assembly, or any such officer, shall be a forfeiture of his office.”
Section 7 of article 14 provides: “The General Assembly shall, in addition to other penalties, provide for the removal from office, of county, city, town and township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty.”
Section 8 of article 14 provides: “The compensation or fees of no State, county or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed.”
These frequent references to municipalities are very persuasive at least, that they were intended by the framers of the Constitution to be embraced within section five, article fourteen, supra, and we are of the opinion that they are. Therefore, unless the words “in the absence of any contrary provision” in that section, refer to and mean a contrary provision in the Constitution, and not in the charter by which the office of city comptroller is created, its tenure fixed and its duties prescribed, it must follow from what has been said that the term of office of the defendant expired at the termination of two years from the date of his appointment. To hold that these words mean, in the absence of any contrary provision in the Constitution, would be to say that legislative bodies can not pass any law by which the term of any particular office is [242]*242to expire at a definite time, however important that may be or however urgent the circumstances may demand.
This would be giving it a forced and unnatural construction, and one not warranted by the language used. This position finds support in tire fact that the charter provides that “the appointments first made 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.” No one will contend that that provision of the charter is in conflict with the Constitution, and if it is valid and the term of office of those officers who were appointed under that provision expired at the expiration of one year from the time of their appointments, it must logically follow that those who were thereafter appointed for two years, in the absence of a provision in the charter that they are to hold until their successors are appointed and qualified, held for two years only from the time of their appointments, for if the word “only” is a word of exclusion, as was held in the Perkins case, it is clear that the words “for the term of two years,” are restrictive in character and meaning, for the word “only” simply serves to emphasize those words, and does not add to their meaning.
If the law had provided that the term of all appointive offices should be “for one year only,” there can be no question but that their term would have expired at the end of the year whether their successors had been appointed or not (State ex rel. v. Perkins, supra, and authorities cited), and those words are not more restrictive than the words, “and shall hold their office for the term of two years, unless sooner removed,” which simply means for two years only — nothing more, nothing less.
Moreover, applying to the construction of this provision of the charter the maxim, "Expressio unius esi exclusio alter'vas ” it is apparent that the- term of the appointive offices can not’be extended beyond the term fixed by the charter. The limit of the tenure of these offices is as clearly fixed by the [243]*243charter at two years as though it read “only for two years,” or “two years and no longer.” But if this position be correct, there is no escape from the conclusion that it is so implied by the charter, which is just the same as if expressed.
The fact that it may Have been the custom in regard to these appointive offices for the incumbent to hold over until his successor be appointed and qualified, is no defense to this proceeding by the State in the nature of a quo warranto through her representative, the Attorney-General, ex informatione, in which the burden is upon defendant to show title to the office (State ex rel. Harris v. McCann, 88 Mo. 386; State ex rel. v. Meek, 129 Mo. 431; State ex rel. v. Powles, 136 Mo. 376; Ex. Legal Rem. (2 Ed.), sec. 629) ; and the fact that he may hold it by custom, does not confer upon him any legal title to it. Nor is the fact that, if the term of the comptroller’s office expire at the end of two years from the time of appointment, it may lead to inconvenient results, any defense thereto, for the same reason. As said in the case of State ex rel. Atty.-Gen. v. Seay, 64 Mo. l. c. 105, “where, as in this case, there is a casus omissus resulting from giving the language of the law the only .construction of which it is fairly susceptible, the courts must leave it to the lawmaking power to make provisions to avoid such a consequence.” But no such result need follow if defendant be ousted and the office declared vacant in this case for no such vacancy need, under any circumstances, continue for more than five days, as under the charter the mayor can not hold up a nomination for more than five days, and, if he does his duty in making the appointment, and the upper house do theirs in confirming it, as it must be presumed they will do, there can be no ground for apprehending disastrous results or serious consequences.
Our conclusion is that the term of defendant Lund as an officer in fact by the law expired at the expiration of the term of two years from the time of his appointment. We therefore [244]*244reverse the judgment of the court below and enter up judgment of ouster against the defendant.
All concur, except Robinson, J., who dissents and expresses his views in a separate opinion.