Wilson v. Clark

• Decision Date: 06 July 1901
• Docket Number: 12,681. 12,690
• Citation: 63 Kan. 505,65 P. 705
• Parties: ALBERT H. WILSON v. GEORGE A. CLARK, as Secretary of State, etc. E. H. HEWINS v. JOHN M. WRIGHT, as County Clerk, etc
• Court: Kansas Supreme Court

65 P. 705

63 Kan. 505

ALBERT H. WILSON v. GEORGE A. CLARK, as Secretary of State, etc. E. H. HEWINS v. JOHN M. WRIGHT, as County Clerk, etc

No. 12,681. No. 12,690

Supreme Court of Kansas

July 6, 1901

Decided July, 1901.

Original proceeding in mandamus.

Judgment for defendant.

SYLLABUS

SYLLABUS BY THE COURT.

1. ELECTIONS -- Biennial Act of 1901 Constitutional. Chapter 176, Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), which provides for postponing the election of certain county and judicial officers for periods of a year, with a view to securing uniformity in the commencement of official terms and dispensing with frequent and unnecessary elections, does not conflict with section 2, article 4, of the constitution, providing for annual elections.

2. ELECTIONS -- Power of Readjustment of Official Terms. For the purposes named the legislature has constitutional power to readjust the commencement of official terms by postponing elections for a reasonable time, and provisions for the filling of the offices during the interval between the end of one regular term and the commencement of another are not invalid.

3. ELECTIONS -- Postponement of One Year Not Unreasonable. While the legislature cannot extend or abridge the terms of office fixed by the constitution, nor postpone elections so long a time as to deprive the offices of their elective character, the postponement for one year for the purposes stated is not deemed to be an unreasonable or unnecessary time, or to indicate a legislative design to make the offices appointive rather than elective.

G. Polk Cline, H. S. Rogers, and A. M. Harvey, for plaintiffs in error.

A. A. Godard, attorney-general, J. S. West, W. F. Schoch, and D. M. Valentine, for defendants in error.

OPINION

JOHNSTON, J.:

By these proceedings two candidates for office seek to compel the acceptance and filing of their nomination papers. Albert H. Wilson was nominated by the political party to which he belongs as judge of the district court of the thirty-third judicial district; but when he presented his certificate of nomination to the secretary of state for acceptance and filing it was refused, not because of defects in form or matter, but on the theory that no election for that office is to be held this year.

E. H. Hewins, who was nominated by petition for sheriff of Shawnee county, presented his nomination papers to John M. Wright, the county clerk, who declined to receive and file them, because an election to that office does not occur this year.

In these cases the secretary and county clerk acted in obedience to chapter 176, Laws of 1901 (Gen. Stat. 1901, §§ 2751-2755), which, among other things, provides that no election shall be held for judicial and county offices until the general election of 1902. If this act, the validity of which is challenged, is constitutional, the refusal to accept and file the nomination papers of the candidates named was justified; but if it is void, judicial and county officers are to be elected at the ensuing November election, and the relators are, therefore, entitled to recognition as candidates and to the relief which they ask.

The measure, which seems to have met with general favor and to have been enacted with unanimity, is designed to dispense with the frequency and irregularity of elections, and also to avoid the agitation and expense which attend them. Under former statutes, some of the district judges and several of the county officers were chosen at the general election of every year. The act in question undertakes to revise the electoral system and readjust the beginning of terms, by providing that all county officers, except county commissioners, shall be chosen at the same general election, and that judicial officers shall only be elected every two years, when state and county officers are elected. To accomplish this purpose and introduce uniformity, the election of county officers who would, under the old order of things, have been chosen at the election in 1901, was postponed until the election in 1902, and judicial elections which would have occurred in certain districts in the odd years were postponed for one year, and required to be held in the even years. This action necessarily left an interregnum of one year between the end of one regular term and the commencement of another, and as to the judicial officers, the act provided that the interval should be filled by appointment of the governor, leaving the interregnum, so far as the county offices are concerned, to be supplied under the general provisions of the law.

It is contended by the relators, who desire to have an election held this year, that the act conflicts with several provisions of the constitution. Indirectly, it is said to conflict with the provision that "general elections shall be held annually on the Tuesday succeeding the first Monday in November." (Art. 4, § 2.) It is also said to contravene the general policy of this state that officers shall be elected by the people, except to fill vacancies, and that vacancies can only occur where the incumbent resigns, dies, or forfeits his office, and that the governor cannot appoint officers except to fill such vacancies. There is a further contention that the act, in effect, extends the terms of certain officers beyond the periods limited by the constitution. As to the first proposition, we are clear that the act in no way violates the provision for annual elections. Manifestly there was no purpose to destroy or interfere with that regulation. The constitution does not provide how many nor what particular officers shall be chosen at any election. It certainly was never the intention that each officer should be elected at each annual election, because the official tenure of some of the offices named in the constitution is two years, that of some of the others is three years, and for still others it is four years. The provision simply declares that annual elections shall be held on the Tuesday succeeding the first Monday in November, and was obviously intended to fix the time for general elections, and also to provide an annual opportunity for the election of officers who, under the law, are to be chosen annually, or are to be elected in any year.

When the constitution was framed, and for many years afterward, members of the house of representatives were elected annually, and hence annual elections were necessary. An annual election is still necessary for the election of county commissioners, and under the statute township officers are now chosen at the annual November elections. It is clear that there was no attempt by this act to abrogate the annual election provided for in the constitution. It still remains for the election of such officers as are to be chosen at that time under either the constitution or the statutes. It has been held that the November election provided for in the constitution "is the general election, and that, whether few or many offices are to be filled." It has also been said "that the phrase 'general election' has a constitutional, defined, fixed and uniform meaning, and is independent of the terms of the offices or the number of officers to be elected." (Morgan v. Comm'rs of Pratt Co., 24 Kan. 71; The State, ex rel., v. Foster, 36 id. 504, 13 P. 841.)

It is next contended that the postponement of the election of certain officers for a year is against the constitutional policy that officers shall be chosen by election, and also contravenes the provision fixing the terms of such officers. No constitutional provision has been found which expressly or by implication limits the legislature in fixing the terms of district judges and county officers. A limit to the duration of terms is prescribed, but when the terms shall begin and end is fairly within the authority and discretion of the legislature. That body possesses full legislative power, except such as is expressly or impliedly withheld by the state constitution or by the constitution and laws of the United States. Aside from the general grant lodging all legislative power in the house and senate (art. 2, § 1), it is expressly provided that the legislature shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution." (Art. 2, § 19.)

It is true, as was held in The State, ex rel. Goodin, v. Thoman, 10 Kan. 191, and Peters v. Board of State Canvassers, 17 Kan. 365, that when the constitution fixes the duration of a term it is not in the power of the legislature either to extend or abridge it. An examination of the act challenged, however, shows that no attempt has been made either to lengthen or shorten official terms, or to alter or affect the tenure of the incumbents of any of the offices named in the act. The policy of the statute, as we have seen, is to secure uniformity in the beginning of official terms, and also to avoid the expense, agitation and other disadvantages of frequent elections. The postponement of elections for one year is a reasonable and, in fact, the only practicable method of accomplishing the beneficial purpose of the legislature. If the legislature had postponed elections an unreasonable length of time, longer than was necessary to effect the avowed purpose, and so long as to betray an intention to make the offices appointive by preventing the people from choosing their officers at stated intervals and for regular terms, or, if it appeared that it was done merely to extend official terms and as a favor to incumbents of offices, there might be occasion for judicial interference and condemnation.

In Minnesota an election was postponed when the judicial term was extended from four to six years, and it was claimed that...