Prouty v. Stover , 11 Kan. 235 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

This is a proceeding by mandamus, instituted in this court, to compel the Lieutenant-Governor of this state and the Speaker of the House of Representatives, to furnish the plaintiif, S. S. Prouty, with a certificate of his election as state printer of the state of Kansas, he claiming to be entitled to such certificate by virtue of the-proceedings had in the joint session of the legislature on the third Tuesday of January, 1873. Three questions are presented, two of which at least must be decided in favor of the plaintiff before he will be entitled to the relief sought. First, Could a majority of members present in the joint session and voting, elect, or did it require a majority of all the members elected to the two> houses? Second, Did the house of representatives consist of more than ninety members? Third, Can this court look back of the final declaration of the result by the joint convention, to see whether upon either of the votes any one other than the one declared elected, was in fact elected? These questions, as can readily be seen, are, so far as this court is concerned, of a delicate nature, for they concern the regularity of the proceedings of the legislative branch of the government; and they are also questions of great moment, for they involve the rightfulness of the organization of at least one body of the legislature. Our examination has been assisted by the efforts of able counsel, whose briefs are full and elaborate, and whose arguments were models of clearness and strength. We have given to the case the full consideration which its importance demands, giving to it a priority of attention in view of the public intereste affected by its result.

Statement of facts. 1. Joint conventions. Act of 1861 construed. There is no dispute as to the facts, and the questions are purely questions of law. On the first call, of the roll, as sb°wn by the journal of the proceedings of the joint convention, S. S. Prouty, the plaintiff, received 65 votes, and George W. Martin received 62 votes. No other votes were cast, so that the plaintiff received a majority of all the votes of all the members present and voting. Was he thereby elected? Art. 15, § 4, of the constitution, as amended in 1868, provided that a state printer should be “elected by the legislature in joint session.” This section is silent as to the manner of voting, or the number of votes necessary to elect; and if there be no limitation prescribed elsewhere it would seem that a majority of all the votes cast was sufficient. In 1861 the. legislature passed an act to regulate the proceedings of joint conventions which, at least in terms, has never been repealed. Sec. 6 of that act reads, “that to elect any person in said ioint convention a majority voting m the affirmative of all the members elected to the two houses shall be necessary.” (Gen. Stat., 547, ch. 57, § 6.) As there were 133 persons elected and admitted to the two houses, the plaintiff failed by two votes of bringing himself within the rule prescribed in this section. To avoid this plaintiff claims, first, that this act is inapplicable; second, that it was repealed by the constitutional amendment of 1868, and third, that it is unconstitutional. Was it inapplicable? The election of a state printer is not one of the things named in the act to be, or which may be, done in the joint convention. Such an officer was then unknown to our laws, and of course was not within the thought of the legislature when it passed that act. Yet the language is broad and comprehensive: “ The two houses shall meet in joint convention for the ele.ction of United States senators, or for the purpose of doing any other act that may be authorized by law.” It includes everything that a joint convention has power to do. It is prospective in its reach, and every act which a joint convention.may hereafter be required or authorized to do, must, while that statute remains unrepealed, be .done according to the rules and limitations therein prescribed. The legislator acts for the future, as the judge does for the past. He prescribes a rule of conduct, and everything which comes within the limits of that rule must be guided by it. And when an act comes within the plain limits of a legislative rule, it is no objection to the applicability of the rule, that the act was not thought of, or was even impossible, at the time the rule was established.

2. Repeals by implication.

3. Limitation on legislative power.

Application of MMtions.

4. Elections by join convention. Act of 1861 sustained and construed. Was said act of 1861 repealed by the constitutional amendment of 1868? The amendment created the office of state printer, and gave to the legislature the power of election. It was s^enf as t° the manner and requisites of electi0n. These are prescribed in the act. The amendment did. not in terms, repeal the act. It could operate as a repeal only by implication. But to repeal by implication, there must be an inconsistency, a conflict between the two. The manner and requisites of election as prescribed in the act must amount to a limitation on the power granted by the amendment, or the two can stand together, and there is no repeal. Prima facie there is no inconsistency, no conflict between the grant of a power and the regulations under which that power may be exercised. Judicial power is vested in certain courts. Prescribing the method of procedure in those courts is per se no limitation on that power. Power to enact laws is vested in the legislature. The rules and orders for transacting business work no abridgment of that power. But it is claimed that under the name of a regulation this section really works a limitation, because, by § 8 of art. 2 of the constitution a majority of each house constitutes a quorum; that when a quorum is present the house is present; that a quorum can transact any business except such as by specific sections of the constitution require the concurrence of a larger number; that a majority of the quorum binds the quorum; that its act is the act of the quorum, and therefore the act of the house; that this amendment grants the power of election to the legislature in joint convention, that is, to a convention composed of a quorum of-each house; that the majority of that convention, thus organized, binds the convention, its act is the act of the convention, and executes the power granted to the convention. The propositions thus stated bring up the third inquiry presented concerning this section: Is it constitutional? The claim made is really two-fold: first, that in the absence of express limitations the majority of a quorum of a deliberative assembly can do any act and exercise any power of that assembly, and second, that because the constitution has expressly declared that a given proportion of one or both houses shall be requisite for certain specified acts, it impliedly inhibits any limitation upon the power of a quorum in all other cases. The limitations on the power of that quorum are in this case expx’essed, expressed in the act of the legislature. All legislative power is vested in the legislature. Prescribing the rules, manner, and requisites of elections, is a legislative act. Thex’e is no express constitutional inhibition. Implied inhibitions are, it is true, equally potent; but their existence must be equally evident. Good illustrations of implied inhibitions are found in the cases cited by counsel front Pennsylvania. The constitution of that state prescribed certain qualifications for voters. The legislature by statute attempted to impose additional ones. This the court decided could not be done. The constitution, they say, by imposing certain qualifications upon voters impliedly authorized every one possessing those qualifications to vote, and forbade the requirement of anything more. ^* “Ex-pressio wnius, exelusio alterius.” Page v. Allen, 58 Penn. St., 338; McCafferty v. Guyer, 59 Penn. St., 109. To sustain an implied inhibition there must be some express affirmative provision. The mere silence of the constitution on any subject cannot be turned into a prohibition. Take the illustrations cited. Were the constitution silent as to the qualifications of voters, that silence would not by implication or otherwise restrain the legislature from prescribing them. The power of the legislature to prescribe them would be unquestioned. Again, to sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision. Pursuing the same illustration, a mere registry law will not come within the implied inhibition, even though it require the voter to do some acts to establish his right to vote, and though it frequently operate to deprive a legal voter of his vote. Such.a law is concerning the general subject of voting, and elections, but it does not reach to the exact matter of qualification; and on the other hand full force can be given to the- constitutional provision without interfering with the law. To declare a law void as conflicting with an express provision of the constitution, the conflict must be clear. So say all the authorities. None the less clear must the conflict be, when it is conceded that no express provision has been violated, and only claimed that some negation must be implied from the affirmative language of the constitution which is irreconcilable with the law. Now there are some sections of our constitution which require for specific acts the concurrence of a certain proportion of the members elected to either house: Art. 2, §13, §14, and §27; art. 3; §15; art. 11, §5; art. 14, § 1, and § 2. But these sections all refer to the action of the two houses meeting in separate session. They prescribe the number of votes in each house which shall be necessary for certain purposes. They nowhere and in no manner refer to the action of the two houses meeting as one body in joint session. The joint convention is a body as different, and with as distinct powers and functions from those of the two separate houses, as a’partnership is from the individuals composing it. Even if it were conceded that these sections cited operated as an implied prohibition on any statutory limitation of the power of a majority of a quorum in the separate houses, still they would not bear upon the powers of a majority of the quorum of a joint convention. A joint convention is a body not recognized by the constitution prior to the amendment of 1868, unless it be by the use of the phrase “the legislature shall by joint ballot,” in § 2 of art. 1. And the use of this phrase, if it refers to a joint convention, suggests this inquiry: The candidate at a popular election receiving the highest vote for any office, state, county, or city, is declared elected. This has always been the rule in this state, established by statute, and questioned by no one. Sec. 2 above referred to provides that in case two or more candidates for any state office receive an equal and the highest number of votes the legislature shall choose by joint-ballot one of such candidates. At such a legislative election must a candidate have a majority of a quorum, that is, a majority of all the votes cast, or will a plurality elect, as at the popular election? Is this question settled by the AX.. . t . . - constitution, or may the legislature determine it ( And if the legislature can say that less than a majority of a quorum shall elect, may they not also say that more than such majority shall be requisite ? But again, the act of voting is not a legislative act. Giving the election of printer to the legislature in joint convention, simply creates an electoral college composed of the members of the two houses. The powers of the college thus created are no greater than if the college had been composed of the probate judges of the several counties convened for that purpose. Shall it be said that limitations placed upon the action of the several houses, when performing their appropriate legislative functions, or certain limited judicial duties, apply either directly or by implication to the powers of an electoral college composed of the members of those houses ? It seems to us therefore that the act of 1861 is applicable; that it was not repealed by the amendment of 1868, and that it is constitutional.

B , 5. Apportionment. Representative and Senatorial districts.

6. Qualifications of members. Powers of each, house.

7. The number of sa®tof3^aoxai inquiry. The second question presented is, did the house of representatives consist of more than ninety members? It is claimed by plaintiff that the senate consisted of J 1 thirty-three, and the house of ninety members; and that these ninety were the representatives of the districts specified in § 3 of the apportionment law of 1871. (Laws of 1871, pp. 33 to 37.) ' It appears from the journals that of these 123 persons claimed to be the duly legal members of the legislature 62 voted for plaintiff. This being a clear majority, plaintiff insists that he comes within the rule prescribed in § 6 of the act of 1861, heretofore quoted, and was therefore elected. It is conceded that one hundred persons were present in the house of representatives, claiming to be members, recognized and admitted as members, and discharging equally the duties of members. Ninety of these represented the districts specified in said § 3, and ten were from counties organized subsequently to the apportionment act of 1871. Defendants claim that this court cannot look beyond the action of the house to inquire whether persons admitted as members were legally entitled to seats. Art. 2, § 8, declares that each house “shall be judge of the elections, returns and qualifications of its own members.” Its determination is not the subject 'of appeal or review. It is final, and concludes every one. But what is included in this power ? Does the power to judge of the qualifications of its members, include the power to increase such' membership? Can it enlarge its members without limit? Is it like an academy of science, or a lodge of odd-fellows, capable of indefinite expansion? If the law fixed the number of senators at twenty-five, could those twenty-five admit twenty-five more on pretense of judging “of the elections and qualifications of its own members,” and thus create a senate of fifty members? If this power exists, how easily could a partisan majority secure to itself a two-thirds vote by simply admitting new members. To create a representative or senatorial district requires a law, the consent of both houses. Neither house by itself can create a district, and then admit some one to represent it. The district must exist before it can be represented. Otherwise one house could usurp the functions of both. And if one house can admit members above the limit prescribed by law, why may it. not above the constitutional limit? But when the district exists, then the decision of the house as to who shall represent that district is conclusive and final. It determines who was elected; whether the returns are sufficient, and also whether the party elected has the proper qualifications. Over all these matters its jurisdiction is ample, its determination final. How far an inquiry could be pursued into the particular persons voting for any law,.so as to attack its validity on the ground that it received its majority only by the votes of those not legally members, we need not now decide. Many considerations other than those appropriate to this may affect that (Question. Here the plaintiff challenges certain voters. He contests an election, and ; claims that of the legal voters he received a majority. In such an issue we think he may show that certain persons were allowed to vote as representa* tives of districts which had no existence, and the judgment of a single house that there were such districts does not conclude him. Commonwealth v. Meeser, 44 Penn. St., 341. Had these ten districts (counties organized subsequently to the passage of the apportionment act of 1871) a legal existence? The first two sections of art. 10 of the constitution are as follows:

“Section 1. In the future apportionments of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.

“Section 2. It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the ■ territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.”

In pursuance of these sections the legislature of 1871 passed an apportionment act. (Laws 1871, p. 32.) The first section of that act is as follows:

“Sec. 1. That the senate shall consist of thirty-three members, and the house of representatives of ninety members; but the number of representatives may be increased by the organization of new counties to not more than one hundred i Provided, That no county not now organized shall be entitled to more than- one representative until the next apportionment.”

8. Apportionment Law. Naming and number of districts. New counties. 9. Basis of representation; inequality of districts. Section two defines the boundaries of the senatorial, and section three those of the ninety representative districts. To create a district requires a law — a law, the con-~ ii i sen* both houses. Conceded. But does not this law create the ten disputed districts ? Is not the language equivalent to this — that the house shall consist of 100 members, of whom ninety shall be from the following districts, and ten from the first ten counties that may hereafter be organized. Nothing further is to be done by either or both houses. The organization of both houses identifies the districts, and entitles to representation. The law is as complete as the law for the government of cities of the first class. No cities are named, but as soon as it is established that a city has over 15,000 inhabitants, it becomes subject to the provisions of the law.- No further legislation is required. No counties are named as constituting these ten districts; but as soon as the fact is established of their organization they become entitled to representation. But it is claimed that such a construction places the law at variance with the constitutional provisions just quoted; that they require an apportionment every five years, and impliedly forbid any changes intermediate the apportionment; that an apportionment implies a distribution -of the full representation among the population according to its present numbers and location, and that there is a new apportionment, a reassignment of representation every time a new representative is added, as much so as if there were a change in the boundaries of the old districts. There is great force in this argument; and if the section stopped with the creation of a house of ninety members, and a subsequent .legislature by law attempted to create a new. district, we should be brought squarely to the question of the power of the legislature to change the representation intermediate the apportionment. But this apportionment is, as we think, of the full house, of 100 members. It distributes ninety among the organized and ten among the unorganized counties. It names the boundaries of the ninety districts, and leaves the ten to be determined by the priority of county organization. It is providing for a legislature which is to be elected and to meet in the future, and it may rightfully assume that in a new and growing state like this the changes of a summer will add many tbe list of organized counties. But it may be said such an apportionment is based not upon the census of the preceding, but the expectations of the coming year. An apportionment cannot be overthrown because the representatives are not distributed with mathematical accuracy, according to the population. Something must be left to the discretion of the legislature, and it may without invalidating the apportionment make one district of a larger population than another. It may rightfully consider the compactness of territory, the density of popula-" tion, and also we think the probable changes of the future in making the distribution of representatives. It seems to us therefore that the ten disputed districts legally existed; and therefore this question must be determined against the plaintiff. The determination of these question's compel a judgment for defendants. Peremptory mandamus refused.

Kingman, C. .J., concurring.

* [* And see The State, ex rel., v. Williams, 5 Wis., 308, 315, 316.]