Cherokee County Com'rs v. Chew

• Decision Date: 07 June 1890
• Citation: 44 Kan. 162,24 P. 62
• Parties: THE BOARD OF COMMISSIONERS OF CHEROKEE COUNTY v. W. H. CHEW et al
• Court: Kansas Supreme Court

24 P. 62

44 Kan. 162

THE BOARD OF COMMISSIONERS OF CHEROKEE COUNTY v. W. H. CHEW et al

Supreme Court of Kansas

June 7, 1890

Error from Cherokee District Court.

THE case is stated in the opinion.

Judgment affirmed.

C. D Ashley, county attorney, for plaintiff in error.

R. M Cheshire, and Case & Glasse, for defendants in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This case was tried in the district court of Cherokee county, on May 16, 1888, by the court without a jury, on the following agreed statement of facts:

"It is agreed that upon the trial of this cause the following facts shall be taken as true:

"1. That W. H. Chew, one of the defendants above named, is the duly elected, qualified and acting register of deeds of said county; that his term as such commenced January 10, 1888, and that said other defendants G. G. Gregg, Z. H. Loudermilk, and James Murphy are the sureties on the official bond of said defendant Chew, as register of deeds as aforesaid, for the term commencing as above stated, and that said defendant executed and delivered the official bond, a copy of which is given as an exhibit to the plaintiff's petition herein.

"2. That said defendant W. H. Chew kept an accurate account of all fees charged by him as such register of deeds for the first quarter of the year 1888, to wit, from January 10, 1888, to March 31, 1888, which amounted in the aggregate to the sum of $ 1,017.70, and that he has refused to turn over to the treasurer of said county one-half of the excess of said sum above six hundred dollars, and claims that he is entitled to the whole of said fees for his services as such register of deeds for the term above specified, and claims the act of the legislature of the state of Kansas entitled 'An act regulating the fees and salaries of the county treasurers, county clerks, county attorneys, probate judge, county auditors and register of deeds of Cherokee and Labette counties, Kansas, approved March 5, 1887,' the same being chapter 159 of the Laws of 1887, is unconstitutional and void, and of no force or effect.

"3. That the term of the county auditor of Labette county, who was duly appointed and qualified, commenced March 4, 1886, and ended March 4, 1888, and that the term of the present county auditor of Cherokee county, who was duly appointed and qualified, commenced October 8, 1887, and will expire October 8, 1889."

The court found for the defendants, and rendered judgment against the plaintiff for costs; whereupon the plaintiff filed a motion for a new trial, which was overruled. The plaintiff excepted to such ruling, and brings the case here for review.

The first question in the case, and the one upon which the court below based its finding and judgment in favor of the defendants, is, was the cause in the district court prematurely brought? The determination of this question involves a construction of § 8 of chapter 159 of the Laws of 1887, which reads as follows: "This act shall take effect and be in force from and after its publication in the statute book, and after the present term of the officers hereinbefore named shall have expired." The constitutional provision touching this subject is as follows Article 2, § 19: "The legislature shall prescribe the time when its acts shall be in force, and shall provide for the speedy publication of the same; and no law of a general nature shall be in force until the same shall be published." The plaintiff in error contends that the act of 1887, chapter 159 of the laws of that year, took effect after its publication in the statute book, and was in force, or became operative as to the offices named therein, upon the expiration of the terms of the respective occupants thereof. If this construction is adopted, the act takes effect in part at one time and in part at other and different times, and may on that account be obnoxious to the constitutional provision above quoted, which requires the legislature to fix a time when its enactments shall take effect and be in force. If another construction can be placed upon § 8 of the Laws of 1887, above quoted, which frees it from any objection under the constitutional provision, and such construction is equally consistent with the language of said § 8 and with the intention of the legislature in enacting the law of which § 8 is a part, such construction should be adopted. If we construe the words, "and after the present term of the officers hereinbefore named shall have expired," to mean after the terms of all the officers named shall have expired, ...