Gilbert v. Craddock

• Decision Date: 06 June 1903
• Docket Number: 13,558
• Citation: 67 Kan. 346,72 P. 869
• Parties: T. B. GILBERT v. W. H. CRADDOCK
• Court: Kansas Supreme Court

72 P. 869

67 Kan. 346

T. B. GILBERT v. W. H. CRADDOCK

No. 13,558

Supreme Court of Kansas

June 6, 1903

Decided January, 1903.

Original proceedings in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTORY CONSTRUCTION--Repeal by Implication. In order that a specific provision of a legislative act be repealed by the implication arising from the passage of a subsequent act, such subsequent act must contain that which was clearly intended to take the place of such specific provision.

2. STATUTORY CONSTRUCTION--Cities and City Officers. A specific direction requiring the election of an officer of a city contained in a general charter act is not repealed by implication by the passage of a subsequent general charter act which recognizes the existence of such office but says nothing as to how he shall be elected.

3. STATUTORY CONSTRUCTION--Authority for Election of Mayor. Authority for the election of a mayor may be found in the necessary implication from an act of the legislature, as well as in its express terms.

4. STATUTORY CONSTRUCTION--"Necessary Implication" Defined. A necessary implication does not shut out every other possible or imaginary conclusion, but is such an one as under all the circumstances a reasonable view impels us to take, the contrary of which would be improbable and absurd.

5. STATUTORY CONSTRUCTION--Power of Courts. In drawing such implication, courts may read the entire act as well as past acts in pari materia, take into consideration the purposes and scope of the act, the inconveniences inconsistencies and absurdities of a contrary view, and the general policy and character of our institutions.

6. STATUTORY CONSTRUCTION--City Charter Act of 1903 Construed. Although no express provision is found in the charter act of cities of the first class passed in 1903 (Laws 1903, ch. 122) for the election of mayors in such cities containing more than 50,000 inhabitants, there is found therein implied authority for such election.

7. ELECTIONS--Oath and Bond Unnecessary Before Quo Warranto. Until the canvassing board, whose duty it is to canvass the votes cast at an election, to declare the result thereof, and to issue a certificate of election to the one found to have been elected, has done so, or something equivalent, so that the claimant has some authoritative evidence of his election, he is not required to qualify himself to hold such office by taking the oath of office and filing his bond; he may maintain an action in quo warranto to determine whether he is elected without having done so.

8. OFFICE AND OFFICERS--Mayor and Councilman-- Incompatibility of Offices. One holding the office of councilman may be elected to the office of mayor of the same city, and upon being qualified may take such office without first resigning the office of councilman. The two offices being incompatible, the acceptance of the latter vacates the former, and this without the prior consent of the mayor and councilmen.

J. W. Dana, Nathan Cree, and Silas Porter, for plaintiff.

Frank Doster, T. A. Pollock, C. F. Hutchings, and L. W. Keplinger, for defendant.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

This is an original proceeding in quo warranto to determine who is entitled to the office of mayor of Kansas City, a city of the first class having more than 50,000 inhabitants. The plaintiff was a candidate for that office at an election held April 7, 1903, and, out of 12,986 votes cast, he received 7735, a majority of 2484. The defendant was elected mayor in April, 1901, and has served since that time. He now claims that he is entitled to continue in office because there was no warrant of law for the election of a mayor in April, 1903; that in the newly revised charter act of cities of the first class, adopted by the legislature at its session of 1903 (Laws 1903, ch. 122), there is no provision for the election of a mayor in such cities having more than 50,000 inhabitants. This calls for an examination of the law and the provisions of the charter act and an inquiry into the proper construction of the same relative to this matter. The sections of the new act bearing most immediately upon the question involved read as follows:

"SEC. 12. All elections for city officers shall be held on the first Tuesday in April of each year."

"SEC. 16. In each odd-numbered year there shall, in all cities having less than fifty thousand inhabitants, be elected a mayor, city attorney, city clerk, city treasurer, police judge, and one councilman from each ward, who shall hold their offices for two years and until their successors are elected and qualified. In all cities containing more than fifty thousand inhabitants, the mayor shall appoint a city counselor, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said city counselor may be removed at any time by the mayor without cause, and whose authority shall be superior to and whose duties shall be coextensive with those of the city attorney, together with such other duties as the mayor and council shall prescribe. . . . The mayor shall also appoint a police judge, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said police judge may be removed at any time by the mayor without cause. . . . City clerk, city treasurer and city attorney shall be elected as herein provided for other cities of the first class. . . . The mayor may appoint such other officers as are created by ordinance, who shall hold their offices for a period of two years unless sooner removed, and such officers may be removed at any time by the mayor without cause."

"SEC. 19. The term of all elective or appointive officers shall be two years and until their successors are elected and qualified."

Article 4 enjoins many and varied duties upon the mayor, and makes him, in connection with the council, the legislative department of the city, while article 5 defines the duties of the mayor in connection with the executive department. Section 77, being one of the sections of article 5, is:

"When any vacancy shall happen in the office of mayor by death, resignation, absence from the city, removal from office, refusal to qualify, or otherwise, the president of the council for the time being shall exercise the duties of the office of mayor, with all the rights, privileges and jurisdiction of the mayor, until such vacancy is filled or such disability is removed, or, in case of temporary absence, until the mayor shall return; and in case of such vacancy, other than temporary absence or disability, the person exercising the office of mayor shall forthwith cause a new election to be held, giving ten days' notice by proclamation."

Now it is claimed by the defendant that because the word "mayor" is left out of the third paragraph of section 16, which provides for the election of city clerk, city treasurer and city attorney in cities of the first class having more than 50,000 inhabitants, and because there is not elsewhere in the act found any provision explicitly providing for the election of mayor in such cities, there was no authority under the law for the people to elect a mayor on the 7th day of April, 1903, and therefore the defendant, who is the incumbent of the office by reason of his election in 1901, is entitled to hold over indefinitely. The question put concisely then is, By the omission of the word "mayor" from the list of officers to be elected as indicated in the third clause of section 16, did the legislature intend that that officer should no longer be regularly elected by the people, and that the mayor found in office upon the taking effect of this act should hold over indefinitely -- for life, maybe -- or is there authority, express or implied, to be found in the act, or elsewhere in the law, for the election of mayor in cities of the first class having over 50,000 inhabitants, at stated intervals? Plaintiff claims, first, that there is express authority in the statute, elsewhere than in the new charter act, for holding the election; and second, that implied authority for holding such election is found in the express provisions of that act.

By the charter act of cities of the first class passed in 1868, the legislature provided that, commencing with the first Tuesday in April, 1869, and each alternate year thereafter, "an election shall be holden by the authorities of each city governed by this act, for mayor, . . . who shall be elected for the term of two years, and shall hold their respective offices until their successors are elected and qualified." Here is found specific authority for the election of a mayor by the people. In 1874 the legislature passed an act, probably designed to cover the entire field concerning the government of cities of the first class, which specifically provided the manner for the election of councilmen but made no such provision in the case of mayor. It did, however, direct that all existing laws not inconsistent with this act should remain in full force. Thereby the law for the election of mayor found in the statute of 1868 remained in force. In 1875 an amendment to the act of 1874 was adopted, whereby provision was made for the election of a mayor on the first Tuesday of April, 1877. This act, however, contained no direction for such election in any subsequent year. The repealing clause again went only to such acts or parts of acts as were inconsistent with its provisions. In 1881 the legislature again undertook to enact a complete charter for cities of the first class, which provided for an election of mayor on the first Tuesday in April, 1881, but made no provision for his election in any year...