Commonwealth Co. v. Brown

28 Kan. 83

• Court: Supreme Court of Kansas
• Decided: January 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This is an action of mandamus, brought originally in this court by the Commonwealth company, for the purpose of compelling the defendant, C. J. Brown, as clerk of the supreme court of the state of Kansas, to deliver to the plaintiff for publication in the Daily Commonwealth, a daily newspaper published at Topeka, Kansas, the official syllabi of the decisions of the supreme court. The facts of the case are such that the only substantial question involved in the case is, which of the two newspapers, the Daily Commonwealth, or the Daily Capital, is the “ official state paper ” of the state of Kansas. The statutes of Kansas provide among other things as follows:

“Sec. 89. An executive council is hereby created, consisting of the governor, secretary'of state, auditor, treasurer, attorney general and superintendent of public instruction, a majority of whom shall constitute a quorum for the transaction of business; but no question shall be decided without the concurrence of at least four members. The governor, or in his absence the attorney general, shall preside over the meetings of such council; the secretary of state shall be the secretary of the executive council, and shall keep a journal of its proceedings.

“Sec. 90. The executive council shall hold their meetings in the office of the secretary of state, and shall meet in regular session on the last Wednesday in every month, and in special session at such other times as occasion may require, at the request of any two members: Provided, That any official bond required of any state officer who is a member of the executive council shall be approved by the governor.”

“Sec. 104. The executive council shall, at their regular meeting in March of each year, designate some newspaper, printed and published at Topeka, as the‘official state paper/ and shall certify such designation to the secretary of state, who shall file and record the same. The paper so designated shall be the official state paper for and during one year from the first day of April next ensuing, and until its successor shall in like manner be designated; but if such newspaper be discontinued, or shall not be promptly and regularly issued and published, the executive council may appoint or designate some other newspaper, published at the capital, as the official state paper for the unexpired year.” (Comp. Laws 1879, pp. 904, 908.)

The statutes also provide that the clerk of the supreme court shall publish the official syllabi of the decisions of the supreme court in the official state paper. (Comp. Laws of 1879, p. 316, §10; p.908, §105.)

Among the admitted facts of the case are the following:

At the regular meeting of the executive council, on March 30, 1881, such council .duly designated the Daily Commonwealth as the official state paper for the ensuing year. The Daily Commonwealth was at that time owned and published by F. P. Baker & Sons. On April 1, 1881, the present plaintiff, the Commonwealth company, a corporation of which P. P. Baker and sons are members, purchased such newspaper from F. P. Baker & Sons, and have published the same ever since; and from the 1st day of April, 1881, to April 5th, 1882, the Daily Commonwealth was the official state paper of the state of Kansas. On March 29, 1882, the same being the last Wednesday in March of such year, and being the time for holding the regular meeting of the executive council in that month, the executive council met in regular session, a quorum of four members being present; and thereupon the council adjourned to meet again on April 5, following. On April 5, the council met pursuant to adjournment, and designated the Daily Capital as the official state paper for the year ending March 31,1883. This last-named designation, as well as the first, was duly certified to the secretary of state, and the publishers of the Daily Capital accepted such designation. Both of these newspapers are now, and have been for a long time, promptly and regularly printed, issued and published in the city of Topeka.

These are substantially all the facts in the case; and upon these facts the plaintiff claims that there has been no valid designation of any official state paper since the Daily Commonwealth was so designated, on March 30,1881; and there-, fore that the Daily Commonwealth still remains the official state paper, under that clause of said § 104 which provides-that the official state paper shall remain such until its successor shall be duly designated.

The plaintiff insists that the action of the executive council in designating the Daily Capital as the official state paper was utterly null and void. This is claimed upon the following grounds, to wit:

First. That the executive council has no power to adjourn its meetings, except from day to day, and then only when the amount of its business and the exigencies of the occasion require such an adjournment; and that there was really no-necessity for any adjournment of its meeting held on March 29, 1882.

Second. That even if the executive council has the power to adjourn its meetings to some future time, still, that it cannot so adjourn its power or authority to designate the official state paper as to make such a designation at some future time valid; and that any such designation made at any time after the first day of the regular meeting of the executive council in March, and while the previously-designated official state paper is still properly performing its duties, is utterly null and void.

Third. That even if the executive council could designate an official state paper after the first day of the regular meeting of such council in March, still, that such designation could not take place after the first day of April following, unless in fact there was no official state paper in existence at the time of such designation, or unless such official state paper was not promptly and regularly issued and published.

We think the plaintiff is mistaken in every particular. • In the absence of statutory or constitutional provisions, limiting or restricting the right of adjournment, every body of men, whether public or private, has the right to adjourn from day to day, or from time to time, and for any number of days at any time, as it thinks proper and expedient; and the validity of its adjournment cannot be inquired into by any other tribunal. This is not only the general understanding of all classes of men, but the universal custom of all classes and bodies of men with reference to adjournments corresponds to this general understanding. With reference to corporations, Mr. Field, in his work on Corporations, says that “It is a general rule that corporate meetings may be adjourned; and if a corporate meeting is regularly called, any business that might have been legally transacted at the original meeting ■may also at the adjourned meeting. This is also in accordance with the general rule of parliamentary proceedings. . . . In the absence of particular regulations on this subject, the power to adjourn corporate meetings is an incidental common-law right, and adjournments may be made in the usual way to any future time the same day or any other day, and even to another place than the one where it originally met, if within the territory of its creation.” It is also said in the case of Warner v. Mower, 11 Vt. 385, 391, that “It is too well settled to require comment, that all corporations, whether municipal or private, may transact any business at an adjourned meeting which they could have done at the original meeting. It is but a continuation of the same meeting. Whether the meeting is continued without interruption for many days, or by adjournment from day to day, or from time to time, many days intervening, it is evident it must be considered the same meeting without any loss or accumulation of powers.” Also, upon the same subject, see 1 Abbott’s Digest of Corporations, p. 460, No. 51, et seq.; 1 Dillon on Municipal Corporations, 3d ed., §§ 269, 287. With reference.to elections, see McCrary on Elections, pp. 109, 110, §§ 91, 92; and with reference to courts, see Jacobs’s Law Dict., title, “Adjournment;” Revel v. The State, 26 Ga. 275; Smith v. The State, 4 Neb. 277, 284. In the case last cited, it is said that “There can be no doubt that, in the absence of a prohibitory statute, the district court, when in actual session, may be adjourned by the judge to any time he may see fit, not beyond the next regular term for that county; provided it do not interfere with a regular term in any other county in his district. We regard this as one of the inherent powers of the court, to be exercised at the pleasure of the judge.” And as before intimated, the reasons for adjournment cannot be inquired into. It will be presumed that they are sufficient. In the present case, under said §89 of the statute, it required four members of the executive council to designate the official state paper. Now as there were only four members present at the original meeting on the 29th of March, it is possible that no designation of any paper could have been made, because it is possible that the four could not agree upon any particular paper. Each separate member of the council may have desired to designate a different paper. Besides, the council may have desired to obtain further information with respect to the circulation of the different papers published in Topeka; or it may have desired to know whether they were all of a permanent character and likely to be published during the year. At least the executive council may have had ample reasons for adjourning over to April 5; but whether it had or not, it is not for this court to inquire. And if the executive council had the power to adjourn then, as is shown by the authorities already cited, it had the power to transact any business at the adjourned meeting which it could have transacted at the original meeting. But it is contended that even if the executive council has the right to adjourn, and has the right to designate the official state paper at an adjourned meeting, still that the designation cannot be had at an adjourned meeting held after the first day of April, for the reason that the statute provides that the designation shall be at the regular meeting in March, and shall be for one year from the first day of April next ensuing. Now the statute does so provide; but by using the words “regular meeting in March,” it evidently means the regular March meeting. It means that the designation must take place at the regular March meeting, and not that it must take place in March. And if the designation does take place at an adjourned meeting of the regular meeting in March, it in legal contemplation takes place, as we have already seen from the authorities, at the regular March meeting. All lawyers are familiar with a similar use of language; judgments are- often rendered at the March term, which are in fact rendered in April. In this court, all judgments rendered from January till July are said to be rendered at the January term; and all judgments rendered from July till January are said to be. rendered at the July term. And further, the statute does not say in terms that the paper designated shall be the official state paper for one year from the first day of April next ensuing the designation; but it does say in substance that it shall be the official state paper “for and during one year,” that is, for the period or term of one year from the first day of April next ensuing the regular meeting; that is, next ensuing the time when the regular meeting commences. This clause of the statute is simply intended to fix the term or the period for which the newspaper shall be the official state paper, and is not intended to fix a limitation upon the appointing power or designating power of the executive council. It means that the term of the official paper shall be one year, and that the term in the abstract shall commence on the first day of April of each year. But it does not require that the actual term of any particular official state paper shall commence on the first day of April, or not at all. It is seldom, if ever, necessary that an officer shall qualify and take possession of his office on the very day on which his term, in the abstract, commences; but he may allow, if he chooses, his predecessor to fill a portion of his term; and he may then take possession of the office and hold the same for the remainder of his term. A few days at the beginning of a term is a very unimportant matter. It makes but little difference to the state or to any one else, whether the term of a particular paper should commence on the first day of its term, or on some subsequent day; whether it should commence on the first day of April, or on the fifth day of April. The legislature, in passing the statutes above ■quoted, intended that the term for which a paper should be the official state paper should be just one year, and not two years or a lo.nger period of time. But suppose, from some insuperable difficulty in the designation of an official state paper, that the one designated cannot commence its term on the first day of April, but must commence the same four or five days afterward, and therefore that it cannot'take the term for the full year, but must necessarily take it for a period of time four or five days less than a year: is that a sufficient ground for holding that such paper shall not be the official state paper at all, but that another paper, which has been the ■official state paper for the preceding year, shall continue to be the official state paper for still another year, and thereby be the official state paper for a term of at least two years? Which is the less irregularity, which is the less violation of ■.the will and intention of the legislature, and which is the less violation of the spirit of the law? Is it less in harmony with the will and intention of the legislature, that an official state paper should be such for five days less than a year, than it is that an official state paper should be such for a term of ■two full years? Evidently the object of the law would be 'better subserved, both in letter and spirit, by holding that if the executive council cannot or does not, for any reason, ■designate the official state paper on the first day of its regular meeting in March, then that it may designate such paper on some other day of such meeting, although it may be. on some day in the month of April. Of course, that provision of § 104 which says that the official state paper shall continue to be such until its successor is duly designated, must have some room for operation; but is it ■not more reasonable to say that' it shall have room for operation, (where the executive council has failed for a few days to makefile designation,) by its (the provision) continuing the old official state paper in its official position for such few days only, than it is to say that upon such a contingency -the old official state paper shall be continued in its official position for still another year? Suppose that, when the executive council met at its regular meeting on March 29, 1882, three of the members present were in favor of designating some particular paper as the official state paper for the ensuing year and that the other member present was opposed, and that it was impossible to obtain the presence of the two absent members .on that day, or on any day prior to April 5, 1882, and that for these reasons it was impossible for the executive council to designate the official state paper for the ensuing year earlier than April 5, 1882: then should it be held that the executive council was powerless for that year, and for the whole of the ensuing year, to elect or designate an official state paper for such year, and thereby allow the old official state paper to hold the position for still another year, although all the members of the executive council except one may have been in favor of designating another official state paper, and of designating one and the same paper as the official state paper? It must be remembered that it takes four members of the executive council to designate the official state paper. Three cannot do it, although four only of the members may be present. See said § 89.

There is no statute in force in this state prohibiting the executive council from adjourning from day to day or from time to time, and for any length of time which it may choose; and hence,, upon general principles of law and in accordance with universal custom, it must have such power. Of course it cannot adjourn beyond the next regular meeting, but that is probably the only limitation upon its .power to adjourn. Section 90, above quoted, provides when the executive council shall meet and where it shall hold its- regular sessions, but there is no law providing when its sessions shall terminate. Said § 90 provides that “ the executive council shall hold their meetings in the office of the secretary of state, and shall meet in regular session on the last Wednesday in every month.” Now if the legislature had intended that the executive council should hold its sessions only on the last Wednesday in each month, instead of using the language that it did use it would have used language in substance as follows: “The executive council shall hold its meetings in the office of the-secretary of state, and its regular sessions on the last Wednesday and on the last Wednesday only, in every month.” Taking this section of the statute together with all the other-sections of the statute, and in connection with the general principles of law and the universal custom, we think the executive council, when it met on the last Wednesday of March,. 1882, had the right to adjourn as it did to April 5, 1882;. and then had the right as it did to designate the official state paper for the ensuing year, the term of such official state paper to be considered as commencing on April 1st, of that year.

It is probably unnecessary in this case to mention the doctrine of relation; and yet, we might say that when a designation of an official state paper is had at an adjourned meeting-of the regular March meeting, such designation will probably relate back, so far as it is necessary for the purpose of rendering everything regular and legal and valid, to the first day of the regular meeting begun and held in March. All lawyers are familiar with the doctrine of relation. At common law, a judgment rendered at any time during the term relates back and has force and effect as from the first day of the term; and all orders and judgments made or rendered nunc pro iunc relate back to some previous time; and all sheriff’s deeds relate back to the time when the plaintiff first procured his lien upon the property conveyed by the sheriff’s deed. These are mere illustrations of the doctrine of relation, and are sufficient for the present purpose.

We think the action of the executive council on April 5,. 1882, in designating an official state paper, was legal and valid, and therefore that the judgment in this case must be rendered in favor of the defendant and against the plaintiff;, and it is so rendered.

All the Justices' concurring.