Rogers v. Shanahan

• Citation: 565 P.2d 1384,221 Kan. 221
• Decision Date: 23 December 1976
• Docket Number: No. 48660,48660
• Parties: Larry ROGERS, Plaintiff, v. Elwill M. SHANAHAN, Secretary of State, Defendant.
• Court: Kansas Supreme Court

Page 1384

565 P.2d 1384

221 Kan. 221

Larry ROGERS, Plaintiff, v. Elwill M. SHANAHAN, Secretary of State, Defendant.

No. 48660.

Supreme Court of Kansas.

Dec. 23, 1976. ^*

Syllabus by the Court

In an original action in mandamus, it is held, as more fully set forth in the opinion, that judgment be entered for the plaintiff as announced by order of this court on December 6, 1976, wherein the Secretary of State was directed to comply with the provisions of K.S.A.1975 Supp. 46-142.

J. F. Steineger, Kansas City, and Robert E. Tilton, Topeka, argued the cause for plaintiff.

John R. Martin, First Asst. Atty. Gen., Topeka, argued the cause for defendant.

FATZER, Chief Justice:

This is an original action in mandamus brought by petitioner Larry Rogers, Senator-elect for the 21st Senatorial District, against respondent, Elwill M. Shanahan, Secretary of State, to compel her to perform the duties of her office as set forth in K.S.A.1975 Supp. 46-142(b ).

The facts are not in dispute. At the general election held on November 2, 1976, petitioner Rogers was elected to the office of Senator for the 21st Senatorial District of the State of Kansas. Subsequent to the general election, the State Board of Canvassers made the final canvass of the election and determined petitioner had been duly elected. In accordance with this determination, the respondent, Secretary of State Elwill M. Shanahan, issued to petitioner a certificate of election dated November 24, 1976, and transmitted to petitioner that certificate and a letter of the same date notifying petitioner of the preorganizational meeting of the Kansas Senate to be held in the Senate Chambers at 10:00 a. m., Monday, December 6, 1976.

On Thursday, December 2, 1976, the incumbent senator for the 21st Senatorial District, Leslie A. Droge, filed a statement of his intention to contest the election of petitioner Rogers. Such notification of intent to contest petitioner's election, under respondent's interpretation of K.S.A.1975 Supp. 46-143, rendered petitioner ineligible to attend the preorganizational meeting of the Senate. On December 4, 1976, petitioner filed in the Supreme Court a petition for writ of mandamus to compel the Secretary of State to read his name at the preorganizational meeting among the roll of members-elect to the Kansas Senate certified by the State Board of Canvassers. Respondent answered, and both parties filed supporting memorandums.

Because of the pressing public importance of this question, hearing on the matter was set for December 6, 1976, at 8:30 a. m. Oral arguments were heard and the court thereupon issued an order directing the respondent, the Secretary of State Elwill M. Shanahan, to read the name of petitioner Rogers from the roll of members-elect to the Senate at the preorganizational meeting on December 6, 1976, at 10:00 a. m. as required by K.S.A.1975 Supp. 46-142(b ). This opinion supplements that order.

K.S.A.1975 Supp. 46-142 and 143 govern preorganizational meetings of members-elect to the Senate. K.S.A.1975 Supp. 46-142(b ) provides:

"Persons elected to the senate in 1976 for terms to commence in 1977 shall meet at the state capitol in Topeka on the first Monday in December in 1976, and such members-elect shall convene at 10 o'clock a. m. in the senate chamber. The secretary of state or an assistant or deputy assistant designated by the secretary of state shall call the meeting to order, and shall call the roll of the members-elect from the list certified by the state board of canvassers and shall thereupon appoint one of the members-elect to be temporary chairperson of the meeting. Upon adjournment, on the same day, the members-elect of the majority and minority parties of the senate shall caucus and nominate their candidates, respectively, for president and vice-president of the senate for the next ensuing four years and select, respectively, their majority leader, minority leader, and other caucus or party officers. Such bodies of members-elect may determine such other matters as their parties shall deem necessary and proper and as will aid the legislature in organizing and performing its functions as soon as possible after the legislature is convened. In each fourth year after 1976, the members-elect of the senate shall meet and caucus in the same manner and take such actions as hereinbefore indicated."

K.S.A.1975 Supp. 46-143 provides:

"When the secretary of state transmits the certificate of election to each of the members-elect to the legislature, there shall be enclosed therewith a notice of the preorganizational session. No candidate involved in an election contest shall be notified of any such meeting, nor shall any such candidate be eligible to attend."

As previously noted, respondent reads 46-143 as making petitioner ineligible to attend the preorganizational meeting. The petitioner argues that K.S.A.1975 Supp. 46-143 has the effect of barring him from the rights and privileges of a senator-elect and denies him and his electorate due process of law as guaranteed by Section 18 of the Bill of Rights of the Kansas Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States, and equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. Petitioner further argues the language of 46-143 is ambiguous and in conflict with 46-142.

When the constitutionality of a statute is challenged, this court is guided in its consideration by certain principles which were recently noted in Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304, 312-13:

"Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State ex rel. v. Fadely, 180 Kan. 652, 658, 659, 308 P.2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506; and 16 Am.Jur.2d, Constitutional Law, § 175, pp. 399-401.)"

Both petitioner and respondent read K.S.A.1975 Supp. 46-143 as making petitioner ineligible to attend the preorganizational meeting provided for in K.S.A.1975 Supp. 46-142 because his election has been contested. Petitioner contends the statute is therefore void because it denies him certain constitutionally guaranteed rights. Respondent argues no constitutional rights are involved or violated. From our reading of the statute, we find it unnecessary to reach the constitutional questions raised. We believe neither of the parties have correctly interpreted K.S.A.1975 Supp. 46-143.

When, as here, the resolution of a question requires construing a statute, the court is guided by certain presumptions. It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute. See 82 C.J.S. Statutes § 316b (1953); See also, Rausch v. Hill, 164 Kan. 505, 190 P.2d 357.

In Hessell v. Lateral Sewer District, 202 Kan. 499, 502, 449 P.2d 496, 500, it was said:

"Appellants' contention depends upon a construction of the statute. In construing a statute words and phrases should be construed according to the context and the approved usage of the language. (K.S.A. 77-201, Second.) Words in common use are to be given their natural and ordinary meaning in arriving at the proper construction of a statute. (Roda v. Williams, 195 Kan. 507, 407 P.2d 471.)"

In arriving at the meaning of K.S.A.1975 Supp. 46-143, the terms "member-elect" and "candidate" appear to be the key. The statute reads:

"When the secretary of state transmits the certificate of election to each of the members-elect to the legislature, there shall be enclosed therewith a notice of the preorganizational session. No candidate involved in an election contest shall be notified of any such meeting, nor shall any such candidate be eligible to attend." (emphasis supplied)

The terms "candidate" and "member-elect" are not synonymous. A "candidate" is one who seeks an office. Black's Law Dictionary 260 (4th ed. 1951); 29 C.J.S. Elections § 1(10)a (1965). In Tucker v. Raney, 145 Kan. 256, 258, 65 P.2d 329, 331, it was said:

"The word 'elect' when applied to an office is frequently used in the sense of one chosen, or properly chosen, or chosen as provided by law." (emphasis supplied)

The term "elect" used as an adjective is defined as being chosen for an office, but not yet installed; it is usually used after a noun (as president-elect). Webster's Third New International Dictionary 731 (1961). "Member-elect" is not defined in the Kansas Statutes Annotated. Neither definition of "candidate" given either adds to or detracts from what has been said above. See, K.S.A.1975 Supp. 46-221(b ); K.S.A.1975 Supp. 25-4102(a ).

The Supreme Court of South Dakota long ago distinguished between a person declared to be elected and a person who is simply a candidate. The words of that court in Bowler v. Eisenhood, 1 S.D. 577, 48 N.W. 136 (1891), are appropriate to the case at bar:

"(S)ection 1489 provides that the notice of contest shall be given 'in writing to the person whose election he intends to contest.' What is the meaning of the term 'election,' as used in this section? Do the law-makers refer to the candidacy of a person for an office, one who simply claims that he has received the highest number of legal votes for the office? Or do they mean the person who has been in some manner decided or declared to be elected? We think the...