Jansky v. Baldwin

• Citation: 120 Kan. 332,243 P. 302
• Decision Date: 06 February 1926
• Docket Number: 26,643
• Parties: MARY JANSKY, Plaintiff, v. CLARE BALDWIN, Defendant
• Court: United States State Supreme Court of Kansas

243 P. 302

120 Kan. 332

MARY JANSKY, Plaintiff, v. CLARE BALDWIN, Defendant

No. 26,643

Supreme Court of Kansas

February 6, 1926

Decided January, 1926.

Original proceedings in quo warranto.

Judgment entered.

SYLLABUS

SYLLABUS BY THE COURT.

SCHOOLS -- County Superintendent -- Eligibility -- Constitutionality of Statute. R. S. 72-202, providing conditions of eligibility for the office of county superintendent of public instruction, is not unconstitutional.

D. M. McCarthy, L. E. Weltmer, both of Mankato, and J. M. Livingood, of Belleville, for the plaintiff.

W. D. Vance, R. E. McTaggart, both of Belleville, Charles L. Hunt, Frank C. Baldwin and C. J. Putt, all of Concordia, for the defendant.

OPINION

HARVEY, J.:

This is an original action in quo warranto to try the title to the office of county superintendent of public instruction of Republic county. Plaintiff, possessing the statutory qualifications, was duly elected to that office at the November election in 1922 for a term of two years. She assumed the duties of the office in July, 1923, and performed such duties during the term. At the November election, 1924, plaintiff was a candidate for reelection. Defendant was the opposing candidate and received 720 votes more than plaintiff. Plaintiff contends that on July 6, 1925, the time fixed by statute for the beginning of the term, defendant was ineligible to hold the office, in that he did not possess the statutory qualifications therefor; hence, that the election was a nullity, by virtue of which she held over until her successor is elected and qualified. The statute provides:

"That a person to be eligible to the office of county superintendent of public instruction must hold a first-grade certificate, or a state certificate, or be a graduate of an accredited college or normal school, and must have taught at least eighteen months." (R. S. 72-202.)

The case is presented upon an agreed statement of facts, in which it is stipulated that defendant has taught but seventeen months; he has the other statutory requisites of eligibility. The principal question arises over the validity of the statute; if the statute is valid, defendant is ineligible to hold the office and plaintiff's contentions are correct.

Defendant argues that the statute is unconstitutional and void; that the office is created by the constitution; that the constitution fixes the qualifications; that it is not within the power of the legislature to increase or to decrease the constitutional qualifications, and that defendant is eligible as measured by the requirements of the constitution. This contention cannot be sustained. The constitution does make the following provision:

"A superintendent of public instruction shall be elected in each county, whose term of office shall be two years, and whose duties and compensation shall be prescribed by law." (Art. 6, § 1.)

This section of the constitution is silent as to requirements of eligibility. It is the rule that when the constitution of a state creates an office, and names the requirements of eligibility therefor, the legislature has no authority to make additional requirements, nor to provide that one may hold the office who does not have the constitutional requirements. When an office is created by an act of the legislature, that body has authority to name the terms of eligibility, and modify them at will. (State, ex rel., v. Goldthait, 172 Ind. 210, 87 N.E. 133; State, ex rel. Bloomer, v. Canavan, 155 Wis. 398, 145 N.W. 44; Dapper v. Smith, 138 Mich. 104, 101 N.W. 60; Wright v. Noell, 16 Kan. 601; Snow v. Hudson, 56 Kan. 378, 43 P. 260.)

Defendant calls attention to article 5, §§ 2, 5 and 6, of the constitution providing certain general disqualifications of electors and office holders, and contends these are the only disqualifications which may be named for an office created by the constitution, unless the constitution itself be amended. This view is sustained in The People v. McCormick, 261 Ill. 413, 103 N.E. 1053, while the opposite conclusion is reached in Ohio, ex rel. Atty.-Gen., v. Covington et al., 29 Ohio St. 102; Darrow v. The People, 8 Colo. 417, 8 P. 661; in Opinion of Justices, 240 Mass. 611, 135 N.E. 305, citing with approval Hanson v. Grattan, 84 Kan. 843, 115 P. 646.

Perhaps this analysis will clarify the situation: Under our form of government all governmental power is inherent in the people. Some governmental powers are delegated to congress, or to the federal government, by our federal constitution; those not so delegated are retained...