State v. Monahan

• Decision Date: 09 December 1905
• Docket Number: 14,627
• Citation: 84 P. 130,72 Kan. 492
• Parties: THE STATE OF KANSAS, ex rel. JAMES S. GIBSON, as County Attorney, etc., v. P. J. MONAHAN et al
• Court: Kansas Supreme Court

84 P. 130

72 Kan. 492

THE STATE OF KANSAS, ex rel. JAMES S. GIBSON, as County Attorney, etc., v. P. J. MONAHAN et al

No. 14,627

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

CONSTITUTIONAL LAW -- Elections -- Property Qualifications -- Drainage Districts. The provision of the Kansas bill of rights that no property qualification shall be required for any office of public trust or for any vote at any election applies only to those offices and elections contemplated by the constitution, and does not prevent the legislature from authorizing the creation of drainage districts, the powers of which are to be exercised by directors who are required to be freeholders elected by the resident taxpayers.

C. C Coleman, attorney-general, and James S. Gibson, county attorney, for The State; W. R. Smith, Pratt, Dana & Black, and Waggener, Doster & Orr, of counsel; S.W. Moore, and Fred. H. Wood, as amici curiae.

Keplinger & Trickett, for defendants.

MASON J. All the Justices concurring.

OPINION

MASON, J.

The Kansas legislature at its last session enacted a law (Laws 1905, ch. 215) permitting the creation of public corporations known as drainage districts, having power to take certain measures for the protection of property within their boundaries against injury from the overflow of natural water-courses; this power to be exercised by a board of directors, chosen by the resident taxpayers, who are authorized to call elections to vote upon propositions to issue bonds to meet the cost of any improvements undertaken. This action is brought in the name of the state, upon the relation of the county attorney, against the persons selected as the first directors of such a drainage district, which has been organized in Wyandotte county, to oust them from the exercise of the duties attached by the statute to their office, upon the ground that the act referred to is wholly void because it conflicts with the Kansas constitution. The case is submitted on a demurrer to the petition.

The provisions of the act which are claimed to be in conflict with the fundamental law of the state are those prescribing the qualifications of directors and electors of the district. Section 13 provides:

"At all elections and meetings held under the provisions of this act, only persons twenty-one years of age who are taxpayers and residents of the district, regardless of sex, shall be entitled to vote."

Substantially the same language is also found in section 9. Section 8 reads:

"That all powers granted to drainage districts incorporated under the provisions of this act shall be exercised by a board of directors consisting of five persons, who shall be freeholders and actual residents of the district, who shall hold their offices for three years and until their successors are elected and qualified, and who shall be chosen at the time and in the manner hereinafter specified."

Section 7 of the bill of rights includes this restriction: "No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election." (Gen. Stat. 1901, § 89.)

In behalf of the plaintiff it is asserted that the statute, in requiring directors of the district to be free-holders, and voters to be taxpayers, attempts to impose a property qualification for an office of public trust, and for a vote at an election, within the letter and spirit of the constitutional limitation quoted. The defendants maintain: (1) That the words "election" and "office," as here used in the constitution, relate only to elections and offices provided for in that instrument, and have no application to elections held in, or officers chosen for, a public corporation created by statute, such as a drainage district; (2) that, even if the provisions attacked are invalid, they may be disregarded without impairing the effect of the remainder of the act. As the court agrees with the defendants in their first contention it will not be necessary to consider the second.

The question whether it is competent for the legislature to confine to taxpayers the right of voting at such elections as are provided by this act must be answered in the affirmative, upon the authority of Wheeler v. Brady, 15 Kan. 26. In that case this court upheld a statute giving women the right to participate in the election of school-district officers, notwithstanding the constitution in granting the general right of suffrage to male citizens only by necessary implication excluded females from its exercise. The decision was based upon the principle that the constitutional expressions concerning the privilege of voting were intended to apply only to those elections provided for by the constitution itself. In the opinion it was said:

"There is no school-district election or meeting provided for in the constitution; there is no provision as to how school-district officers shall be elected, appointed, or chosen; and we suppose no one will claim that they are, by the terms of the constitution, to be elected at either of the elections provided for in the constitution; hence it would seem that the legislature would have full and complete power in the matter; that the legislature might provide for the election or appointment of school-district officers as it should choose, when it should choose, in the manner it should choose, and by whom it should choose." (Page 32.)

The soundness of this decision is questioned by counsel for the plaintiff, who allege that it is out of harmony with the view prevailing elsewhere. It has, however, been frequently cited with approval in other jurisdictions. (See State v. Cones, 15 Neb. 444, 19 N.W. 682; Plummer et al. v. Yost et al., 144 Ill. 68, 33 N.E. 191, 19 L. R. A. 110; State, ex rel. Attorney-general, v. Dillon et al., 32 Fla. 545, 14 So. 383, 22 L. R. A. 124; Harris v. Burr, 32 Ore. 348, 52 P. 17, 39 L.R.A. 768; State, ex rel. Mills, v. Board of Elections of City of Columbus et al., 9 Ohio C.C. 134.)

The cases of Matter of Gage, 141 N.Y. 112, 35 N.E. 1094, 25 L. R. A. 781, The People, ex rel., v. English et al., 139 Ill. 622, 29 N.E. 678, 15 L. R. A. 131, and Coffin v. Election Comm'rs, 97 Mich. 188, 56 N.W. 567, 21 L. R. A. 662, turned upon different aspects of the question, but cited the Kansas case with approval, and in distinguishing it emphasized the force of the reasoning by which it was sustained.

While the following cases did not in terms refer to Wheeler v. Brady, 15 Kan. 26, they involved substantially the same question and decided it in the same way: Buckner, &c., v. Gordon, &c., 81 Ky. 665; Belles v. Burr, 76 Mich. 1, 43 N.W. 24; Mayor, etc., v. Shattuck, 19 Colo. 104, 34 P. 947, 41 Am. St. Rep. 208; Hanna v. Young, 84 Md. 179, 35 A. 674, 57 Am. St. Rep. 396, 34 L. R. A. 55; Spitzer v. Village of Fulton, 172 N.Y. 285, 64 N.E. 957, 92 Am. St. Rep. 736; Leflore County v. State, ex rel., etc., 70 Miss. 769, 12 So. 904.

It is true that there are cases which announce a contrary doctrine, but they are neither of so large a number nor of such cogency of reasoning as to shake the authority of the Kansas decision. (See St. Jo. & Denv. City R. R. Co. v. Buchanan Co. Ct., 39 Mo. 485; State v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833; Black v. Trower & als., 79 Va. 123; Allison v. Blake, 57 N.J.L. 6, 29 A. 417, 25 L. R. A. 480.)

The present case cannot be distinguished from the earlier one upon the ground that here the limitation invoked is express while there it was merely implied, or upon the ground that here the right of suffrage is restricted while there it was enlarged. It is universally held that the enumeration in a state constitution of the classes of citizens who shall be permitted to vote is to be taken as to all matters within the purview of the provision as a complete and final test of the right to the exercise of that privilege, and that the legislature can neither take from nor add to the qualifications there set out. (15 Cyc. 281, 282, 298; 10 A. & E. Encycl. of L. 573, 576, 577.) The case of Wheeler v. Brady, 15 Kan. 26, was not decided upon the theory that the legislature might extend to women the right to vote for school officers because the constitution did not forbid such enlargement of the voting privilege there granted. On the contrary, the court assumed that the constitutional provision defining qualified electors as male persons of stated attributes operated to bar females from the exercise of the right there referred to as completely as though there had been an express prohibition to that effect, and that the legislature could no more enlarge any right of suffrage conferred by the constitution than it could restrict it. The determination reached was, therefore, necessarily based upon the doctrine that the constitutional rules concerning the right to vote have application only to such elections as are provided for in the constitution itself.

Nor can the present case be withdrawn from the operation of this doctrine by reason of the broad and unqualified language of the prohibition relied upon by plaintiff: "No property qualification shall be required . . . for any vote at any election." Manifestly it is not necessary to construe this literally as applying to every election whatsoever. It doubtless would not be contended that the sentence relates to the election of the officers of a private corporation, although that is a matter over which the legislature exercises some control. (Gen. Stat. 1901, § 1288.) It would be superfluous to cite instances in which general language of this character has been given a restricted meaning. A typical example is presented in Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183, where the...