Hagerty v. Arnold , 13 Kan. 367 ( 1874 )

The opinion of the court was delivered by

Kingman, C. J.:

On the 10th of April 1872 the governor, having received the requisite papers preparatory to the organization of the county of Harvey, appointed commissioners and county clerk for that purpose, as the statute requires. On the 20th of May thei’eafter a special election was held, at which a full set of county officers was elected, and immediately thereafter qualified. At the general election in November 1872 all the county officers were elected, among which C. A. Tracy was elected sheriff. At the general election in November 1873 the plaintiff was elected sheriff. But the defendants, the county commissioners and county clerk of said county, refused to canvass the votes therefor. The real question raised on these facts, and the only one necessary to decide is this, Was Tracy elected for a full term of two years? If he was, it would bé an idle thing to direct the canvass of the votes for the plaintiff. If he was not, then certainly the plaintiff is entitled to the office and to have the votes canvassed and the result declaimed, so that he may enter upon the discharge of his duties.

1. Officers of new countries; term of office. 2. county officers; term. 3. Power of legislator in regard to new counties. The statutory provisions bearing upon this question are these: Chapter 24 of the General Statutes (page 249,) provides for the organization of new counties, and after directing how the county offcers shall be elected at a special election fixes their term of office, in §8, (page 251,) directing that they shall hold their respective offices until the next general election and until their successors shall be elected and qualified. Sec. 2, page 428, Gen. Stat., provides for the election of sheriff and certain other county officers at the general election in 1869 and at the general election in every second year thereafter. Sec. 57 of ch. 36 provides for filling vacancies in county offices as well as others by appointment until the next general election; section 58 fixes the time when the regular term of office begins, on the second Monday of January next after the election; section 59 regulates the term of officers appointed or elected to fill vacancies, and therein declares that they shall hold during the unexpired term for which they are elected and until their successors are elected and qualified. These are the material statutory provisions on the question, and from them we think it clear that it was the purpose of the legislature to fix a uniform time for the commencement of the regular term of officers, one class to be elected in the odd years and one class in the even years, and the term of each class to commence on the second Monday in January after their election, and wherever vacancies occurred then the person elected to fill the same was only elected for the unexpired term, so that all officers of any one class should, throughout the state, be elected at the same time, thus avoiding confusion and the necessity for a great multiplicity of laws. If the statutory provisions upon the subject were alone to be consulted, we should have no doubt that Tracy’s election as sheriff in November 1872 was only for an unexpired term, and that his successor would be elected at the general election in 1873. "We think this is the fair construction of the statutory provisions on the subject; and had the question rested on these provisions it is not likely that any litigation would have ever grown out of them. The constitutional provision on this subject, and not the statutes, has given rise to the difficulties in this case. Sec. 3 of art. 9 prescribes the term of county officers in these words: “All county officers shall hold their office for the term of two years, and until their successors shall be qualified.” It is contended that this section attaches to every county officer immediately upon the election or appointment of such officer. Taken in its hardest literal terms, and the clause seems to bear this construction, and would apply alike to all county officers, upon their accession to office, whether elected to fill a vacancy or for a full term, for it applies to all county officers, making no distinction between those appointed or elected to fill a vacancy, and those to fill a full term. Such a construction would be productive of great confusion, as in the course of time, from removals, resignations, death, and other causes, it would come to pass that the commencement of the term of office would be different as to each office in a county, and in each county in the state. From other constitutional provisions it is apparent that but two elections are contemplated in a year, a township election, and a general election, so that to add to the confusion, it would happen that a great number of county officers would hold by appointment while others might be elected. It is the general policy of the constitution that the people elect the officers, and this policy is the one adopted by the legislature. But as to county officers, the constitution is silent. It prescribes the length of their term, but as to how they shall be selected, or when the term shall begin, there is no provision. The conduct of public business, under circumstances such as above suggested, would be so difficult as to be nearly impracticable. We cannot think the framers of the constitution intended any such result. Nor do we think it necessary to give such a construction to the clause. It was undoubtedly intended to fix the regular term of county officers at a uniform period of two years. The constitution furnishes general rules for the government of the state; it rarely comes down to details; and in this provision we understand the purpose to be to furnish a general rule fixing the duration of a regular term, and not provisions for a vacancy, or an exceptional case. We cannot give it the literal interpretation claimed by the defendants, without making it absurd from its impracticable workings. We must therefore give it a construction that is neither violent nor unreasonable. The provisions of the constitution as to some of the officers are explicit — that they are to be elected; that in case of vacancy it shall be filled by appointment; and the appointment runs only until the next general election that shall occur more than thirty days r after such vacancy shall have happened; (§14, art. 1; §11, art. 3;) while as to county officers the entire discretion is vested in the legislature as to how many there shall be, (with some possible exceptions,) how they shall be selected, when their terms shall begin, and what shall be their duties. The sole restriction is as to length of term. By giving this restrictive clause the fair construction of applying to the regular term of county offices, and not to vacancies or exceptional cases, we conform to the almost uniform practice of the counties of the state, to the construction placed upon it by the legislature in the statutes above referred to, and to the construction this court has heretofore given it in the case of Bond v. White, 8 Kas., 333. Does this case form one of the exceptional ones? We think so. The legislature is given the power to provide for the organization of new counties: this includes the right to prescribe the terms and conditions prerequisite thereto, and all the steps necessary to secure that result. Such regulations are prescribed, and among others it is provided that their organization may be effected at any time when the prescribed conditions exist; that the first commissioners and clerk are to be appointed by the governor; at the first election the county officers are only to hold until the next general election, when another election is to be held. If sec, 3 of art. 9 is to have any other construction than the one we have given it, then it applies with full force to the officers elected at the first election, and they must hold for a full term, and then each new county might and probably would have its political year beginning at a different period from that of any other county. It is not contended that the constitutional provisions applies to these, nor is it consistent with the position of defendants that they should so hold, for then the first officers, and not themselves, would be entitled to hold the offices. This is not said by way of estoppel on the defendants, but as a suggestion of the consequences of giving to the section the construction claimed, and applying it to the organization of new counties. We think that under the power to organize new counties the legislature had the power to designate how the offices shall be filled until the commencement of the regular term, and that the fact of its having provided for two elections, does not derogate from their power. And we think that there is no doubt that the legislature may determine when a regular term shall commence, and that they have so determined in the election law; that certain of the county officers are elected in the odd years and their terms commence in January of the even years, and that certain other county officers are elected in the even years, and their terms commence in January of the odd years. The term of all these offices is two years. The legislature cannot make them more nor less; but for vacancies, and for exceptional cases, such as the organization of new counties, we think they have the power to say how the office shall be filled up to the time when the regular term commences, even if it requires two elections in one year. With these views it follows that a peremptory writ must be awarded against the defendants, com-man ding them to canvass the votes for plaintiff for sheriff of Harvey county.

Mandamus; plaintiff. While it is the duty of defendants to canvass the votes for the other officers mentioned in the alternative writ, we cannot command them so to do on the application of plaintiff. The application must be in the name of the proper public officer, or of the real party in interest) to authorize the court to act in the premises.

Awarding costs, in certain cases. As the defendant A. G. Richardson, one of the board of commissioners, by his answer has shown his willingness to canvass the vote at the time prescribed by law, and his attendance at the proper place and time for that , A _ _ _ „ _ purpose, and was only prevented by the refusal of the other commissioners, and has also shown by his attendance at the time and place commanded in the alternative writ for the canvass of the vote, and by his request to the other commissioners to canvass the vote then and there, the peremptory writ will go at the costs of the other defendants.

All the Justices concurring.