State v. Andrews

• Decision Date: 08 February 1902
• Docket Number: 13,000
• Citation: 64 Kan. 474,67 P. 870
• Parties: THE STATE OF KANSAS, ex rel. A. A. Godard, Attorney-general, v. JAMES E. ANDREWS
• Court: Kansas Supreme Court

67 P. 870

64 Kan. 474

THE STATE OF KANSAS, ex rel. A. A. Godard, Attorney-general, v. JAMES E. ANDREWS

No. 13,000

Supreme Court of Kansas

February 8, 1902

Decided January, 1902.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Enrolled Statute Imports Absolute Verify -- Title of Act. An enrolled statute imports absolute verity and is conclusive evidence of the passage of the act and of its validity, unless the journals of the legislature show affirmatively, clearly, conclusively and beyond all doubt that the act was not passed regularly and legally, and this rule applies to the title as well as to the body of the act. The cases of Homrighausen v Knoche, 58 Kan. 646, 50 P. 879, and In re Taylor, 60 id. 87, 55 P. 340, followed.

2. CONSTITUTIONAL LAW -- Biennial-election Law -- Judges of the District Court -- Appointment by Governor. By the enactment of chapter 176, Laws of 1901, the legislature sought to make elections less frequent and to secure uniformity in the commencement and, therefore, the ending of official terms, and, as a part of the general design, it provided for an interim between the time of the ending of the terms of the then incumbents of certain judicial offices therein specified and the beginning of the terms of the regularly elected successors, and ordained that during such interim said offices should be filled by appointees of the governor. The creation of such exceptional terms and the method adopted for filling the same must be regarded as a part of the general design, and, because such provisions are consonant with the aim and purpose, clearly deducible from the act, and within the general and specific powers conferred upon the legislature by the constitution, they may not be adjudged invalid for the reason that a court may regard them as unwise, or because, if no means of supplying such offices during the interregnum resulting from the postponement of certain elections had been designated, such incumbents would have continued to hold until their successors, chosen in the usual manner, were qualified. Wilson v. Clark, 63 Kan. 505, 65 P. 705, cited and followed.

A. A. Godard, attorney-general, and J. S. West, for plaintiff.

G. C. Clemens, Waggener, Horton & Orr, Overmyer & Mulvane, and Rossington, Smith & Histed, for defendant.

ELLIS J. JOHNSTON, SMITH, CUNNINGHAM, GREENE, POLLOCK, JJ., concurring. DOSTER, C. J., dissenting.

OPINION

ELLIS, J.:

This is an action in the nature of quo warranto to determine the respective claims to the office of judge of the thirty-fifth judicial district of Charles E. Lobdell, whose due appointment and qualification under chapter 176, Laws of 1901, is admitted, and James E. Andrews, who was elected judge of said district at the general election in November, 1897, duly qualified, has ever since been and is now in possession of said office. If sections 3 and 4 of said act were lawfully adopted and do not contravene the constitution of this state, the prayer of the plaintiff must be granted and the office awarded to Charles E. Lobdell.

At the threshold of inquiry, we are met with the contention that said sections are ineffective because the corresponding part of the title to the act was not adopted in a constitutional manner by the legislature, which fact, it is claimed, is shown by, or fairly inferable from, the history of the bill recounted in the legislative journals. As originally introduced, the title to house bill No. 532, which subsequently matured into said chapter 176, was:

"An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith."

The subject-matter of sections 3 and 4 of the act as passed was not referred to directly in either the title or body of the bill when introduced. The journals, of the contents of which, under prior decisions, we take judicial cognizance, show that the number of the bill was never changed. From that of the house, it appears that under its number and original title, the bill, after several postponements, was passed, and messaged to the senate. In the senate journal for the day following the receipt of the bill is the following unexplained entry:

"House bill No. 532, An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith."

It is assumed by counsel for defendant that the foregoing entry relates to one of the readings of the bill. That is mere conjecture, and nothing in the context serves to justify an opinion as to the reason why the allusion to the measure was made. The same journal shows that on the next succeeding day action was taken upon the bill as follows;

"House bill No. 532, 'An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith,' was read the third time. Senator Smith moved to amend, by inserting the following as sections 3 and 4:

"'SEC. 3. On or before the second Monday of January, 1902, the governor shall appoint a judge for each of the following judicial districts, to wit: The tenth, fourteenth, fifteenth, seventeenth, nineteenth, twentieth, twenty-first, thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, and thirty-fifth, who shall hold their offices from the second Monday in January, 1902, until the second Monday in January, 1903. At the general election in 1902 a judge shall be elected in each of said judicial districts, who shall hold his office for a term of four years from the second Monday in January, 1903, and there shall be a judge elected in each of said judicial districts at the general election every four years thereafter. No election for judge of the district court shall be held in said districts in the year 1901.

"'SEC. 4. On or before the second Monday in January, 1904, the governor shall appoint a judge for each of the following judicial districts, to wit: The sixth, seventh, eighth, ninth, eighteenth, twenty-ninth, and thirty-sixth, and of the court of common pleas of Wyandotte county, who shall hold their offices from the second Monday in January, 1904, until the second Monday in January, 1905. At the general election in 1904 a judge shall be elected in each of said judicial districts and in said Wyandotte county, who shall hold his office for a term of four years from the second Monday in January, 1905; and there shall be a judge elected in each of said judicial districts at the general election every four years thereafter. No election for judge of the district court shall be held in said districts in the year 1903.'

"The question being, Shall the bill pass? the roll was called, with the following result: Yeas 24, nays 6; absent or not voting, 10."

After giving the names of the senators voting, and those absent and not voting, the record proceeds: "A constitutional majority having voted in favor of the passage of the bill, the bill passed and the title was agreed to." On the same day the bill was messaged to the house, as follows:

"Also, passed house bill No. 532, 'An act to prescribe the time for holding elections of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith, with amendments.'"

Thereafter, and on the same day, the house journal shows that the following action was taken:

"Mr. Hallett moved that the house concur in the senate amendments to house bill No. 532, 'An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts in conflict therewith,' and the question being, Shall the house concur in the senate amendments to the bill? the roll was called, with the following result: Yeas 65, nays 31; absent or not voting, 29."

The result was immediately messaged to the senate, as follows:

"Mr. President: I am directed by the house to inform the senate that the house has concurred in senate amendments to house bill No. 532, 'An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith.'"

Two days later the house committee on enrolled bills made a report on this and several other bills which, so far as relevant, was as follows:

"Also house bill No. 532, 'An act to prescribe the time for holding elections for the election of all county officers except county commissioners, for the election of a clerk of the court of common pleas in Wyandotte county, and to repeal all acts and parts of acts in conflict therewith.' . . .

"Have compared the engrossed copies with the enrolled bills, and I am directed to report to the house that the same are correctly enrolled, that all have been properly signed by the president and secretary of the senate and the speaker and chief clerk of the house, and have been presented to the governor for his approval, this 1st day of March, 1901."

On the day of the receipt of the bill by the governor, he returned the same to the house with the following message:

"To the House...