State ex rel. Bailey v. Brookhart

• Citation: 84 N.W. 1064,113 Iowa 250
• Parties: STATE EX REL. BAILEY v. BROOKHART.
• Decision Date: 01 February 1901
• Court: United States State Supreme Court of Iowa

113 Iowa 250

84 N.W. 1064

STATE EX REL. BAILEY

v.BROOKHART.

Supreme Court of Iowa.

Feb. 1, 1901.

Appeal from district court, Washington county; A. R. Dewey, Judge.

On application to the lower court, relator was granted leave to bring an action in the name of the state to test his right to the office of county attorney, to which he claimed to have been duly chosen at the general election on November 6, 1900, and to oust defendant therefrom, alleging that the defendant, who was the lawful incumbent of said office prior and up to the first Monday (the 7th) of January, 1901, claimed the right to continue to hold said office under the provisions of an alleged amendment to the constitution of the state. Defendant's demurrer to plaintiff's petition was overruled, and from this ruling defendant appeals. Affirmed.S. W. Brookhart, pro se.

Marsh W. Bailey, for appellee.

By permission of the court arguments were filed by attorneys not of record in the case, as follows: George C. Scott, C. A. Irwin, G. W. Lafferty, W. R. Lewis, G. M. Titus, and A. B. Cummins. Oral arguments, in addition to those of the attorneys of record, were made by A. B. Cummins, Milton Remley, and C. A. Irwin.

PER CURIAM.

The controversy in this case arises under the provisions of what purports to be an amendment to the constitution of the state, designated as “section 16 of article 12,” which reads as follows: “Sec. 16. The first general election after the adoption of this amendment shall be held on the Tuesday next after the first Monday in November in the year one thousand nine hundred and two, and general elections shall be held biennially thereafter. In the year one thousand nine hundred and two there shall be elected a governor, lieutenant-governor, secretary of state, auditor of state, treasurer of state, attorney general, two judges of the supreme court, the successors of the judges of the district court whose terms of office expire December thirty-first, one thousand nine hundred and two, state senators who would otherwise be chosen in the year one thousand nine hundred and one, and members of the house of representatives. The terms of office of the judges of the supreme court which would otherwise expire in odd-numbered years, and all other elective state, county and township officers whose terms of office would otherwise expire in the year one thousand nine hundred and one, and members of the general assembly whose successors would otherwise be chosen at the general election in the year one thousand nine hundred and one, are hereby extended one year and until their successors are elected and qualified. The terms of office of senators whose successors would otherwise be chosen in the year one thousand nine hundred and three, are hereby extended one year and until their successors are elected and qualified. The general assembly shall make such changes in the law governing the time of election and terms of office of all other elective officers as shall be necessary to make the time of their election and terms of office conform to this amendment, and shall provide which of the judges of the supreme court shall serve as chief justice. The general assembly shall meet in regular session on the second Monday in January, one thousand nine hundred and three, and biennially thereafter.” Such amendment was proposed in the senate of the 27th general assembly (1898) by a joint resolution named and entitled “Substitute for substitute for joint resolution No. 1. Joint resolution proposing to amend the constitution of the state of Iowa so as to provide for biennial elections”; which resolution was entered in full on the senate journal, the yeas and nays being duly recorded in said journal, and then (as claimed) was transmitted to the house, where something under the same name and title, referred to by name and title only, appears to have been passed, the yeas and nays being duly recorded on said journal. The same resolution was agreed to by the senate and house of the 28th general assembly (1900), and the proposed amendment was duly submitted to the people at the general election of 1900 (November 6th), and received the affirmative votes of a majority of the voters voting thereon. The foregoing account of the proceedings relating to the proposal and adoption of the alleged amendment is sufficiently full to serve as a basis for the consideration of the questions herein to be discussed. Objection was made in the lower court and is insisted upon in this court that the record in the house journal of the 27th general assembly relating to the transmission to the house of the senate resolution does not correctly describe that resolution. It is there referred to as “Substitute for joint resolution No. 1,” whereas in fact, as it passed the senate, and was entered in full on its journal, it was a “Substitute for a substitute for joint resolution No. 1,” but the subsequent entries on the house journal with reference to the action of the committee reporting it for passage and as to its final passage by the house correctly describe it, and we shall treat the proposed amendment as having been entered in full on the senate journal and entered by title on the house journal, there being no claim that it was at any time entered in full on the journal of the house. Under these facts two questions are presented for our consideration: First. Was the amendment proposed and adopted in conformity with the requirements of our constitution? Second. Does such amendment, if it is a part of the constitution, extend the term of office of defendant?

To a correct understanding of the difficulties involved in the second question it is proper to say that, without the amendment, the statutes of the state provide for annual general elections, at each of which some state, county, and other officers are chosen, and that, in view of the proposal in the amendment to omit any general election in 1901, and each second year thereafter, it was proper to provide for the occupancy of the offices which would otherwise have been filled by elections held in those years, and the method adopted seems to have been to extend the terms of office of certain judges of the supreme and district courts, certain senators, and all the members of the lower house of the general assembly, and certain state, county, and other officers that need not be here specifically named. By constitutional provision (article 5, § 11), the terms of office of the judges of the supreme and district courts commence on the 1st day of January, and terminate, therefore, on the last day of December, and as to these there is no difficulty in applying the amendment; but by the provisions of Code, § 1060, the terms of state, county, and other officers chosen at the general election commence on the first Monday in January after their election (except in case of the governor and lieutenant governor, as to which see article 4, § 15), and by various constitutional and statutory provisions, which need not be specifically cited, all these officers hold office until their successors are duly elected and qualified. If the defendant, and other officers whose terms would otherwise expire on January 6, 1901, are the officers whose terms would be extended by the provisions of the amendment, then relator and other state, county, and minor officers chosen at the general election in November, 1900, will not be entitled to hold office during the year 1901. Relator contends for a construction of the amendment which will make the extension of terms of office therein contemplated...