State v. 1

• Decision Date: 09 March 1918
• Docket Number: 21,339
• Citation: 102 Kan. 575,171 P. 634
• Parties: THE STATE OF KANSAS, ex rel. J. B. WILSON, as County Attorney, etc., Plaintiff, v. BISMARCK DRAINAGE DISTRICT No. 1, OF DOUGLAS COUNTY, Defendant
• Court: Kansas Supreme Court

171 P. 634

102 Kan. 575

THE STATE OF KANSAS, ex rel. J. B. WILSON, as County Attorney, etc., Plaintiff, v. BISMARCK DRAINAGE DISTRICT No. 1, OF DOUGLAS COUNTY, Defendant

No. 21,339

Supreme Court of Kansas

March 9, 1918

Decided January, 1918.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

QUO WARRANTO--Drainage District Supervisors--Tenure of Office--Constitutional Law. The provision in chapter 168 of the Laws of 1911 fixing the tenure of office of the supervisors of a drainage district at five years is violative of section 2 of article 15 of the constitution; but as the term of office named in the act is void, the tenure is not in fact fixed, and the office is held subject to the appointing power, and therefore the invalid part does not render the whole act void.

S. D Bishop, J. B. Wilson, Mina P. Dias, L. H. Menger, R. E. Melvin, Charles Gilmore, E. T. Riling, and John J. Riling, all of Lawrence, for the plaintiff.

Thomas Harley, of Lawrence, for the defendant.

OPINION

JOHNSTON, C. J.:

This is an action of quo warranto, in which the plaintiff is challenging the existence of the Bismarck drainage district No. 1 of Douglas county, which was incorporated under the provisions of chapter 168 of the Laws of 1911. The organization of the district was effected on June 15, 1916 and at an election held on July 6, 1916, five supervisors of the district were chosen, who, as the statute provides, determined by lot that their respective terms of office should be for one, two, three, four and five years, and until their successors were elected and qualified. It is provided that after the first election those chosen for supervisors shall hold their offices for a term of five years. (Laws 1911, ch. 168, § 6, Gen. Stat. 1915, § 3997.) The validity of the act is assailed on the ground that it violates section 2 of article 15 of the state constitution, which among other things provides that "the legislature shall not create any office the tenure of which shall be longer than four years." The drainage districts provided for in the act are municipal corporations, and their officers are vested with many important functions, including the condemnation of private property for a public purpose and the levy of taxes on the property within the district. The offices of the district were certainly created by the legislature and necessarily fall within the constitutional limitation which...