State ex rel. Goodin v. Thoman

10 Kan. 191

Opinion

The opinion of the court was delivered by

Brewer, J.:

This is an original proceeding in mandamus brought in this court .by the relator to compel the defendant as auditor of the state to issue to him scrip on the basis of a salary of two thousand dollars per annum. The appropriation made by the last legislature was fifteen hundred dollars, and upon the basis of that appropriation the auditor is acting. The relator claims that under the laws regulating judicial salaries he is entitled to two thousand dollars, and insists that he should be paid at that rate, until at least the appropriation is exhausted! Upon the facts as alleged there is no dispute, and the only question presented for our determination is one of law, and that is, the amount of salary which under the statutes the relator is entitled to receive. By the legislation of 1867 four additional judicial districts were created, and the governor was authorized to appoint judges who should hold their offices until their successors were elected and qualified. Sec. 15, of ch. 52, laws 1867, p. 89, reads:

“Sec. 15. There shall be elected 'at the next general election, judges of the district court for the sixth, seventh, eighth and ninth judicial districts; such elections tobe conducted in all respects in accordance with existing laws, and such judges to have and exercise all the powers and perform all the duties which are now or may be imposed by law for [upon] judges of the district courts of this state, and who shall hold their offices for the term of four years and until their successors are elected and qualified.”

i. District judges^teim of At the general election in 1867 the relator was elected judge of the seventh district, and re-elected at the general election of 1871. The salary of district judges ^ time 0p h}s election in 1867 was fifteen hundred dollars. In 1868, it was raised to two thousand dollars, and so remained until 1872, when it was again raised to twenty-five hundred dollars. Art. 3, § 13, of the constitution provides that “The justice of the supreme court and judges of the district court shall at stated times receive for their services such compensation as may be provided by law, which shall not be increased during their respective terms of office,” etc. Upon these facts alone, there would appear little question that the relator was entitled to two thousand dollars. As against these facts is this: There was no statute authorizing an election for district judges in 1871. Hence it is claimed that the attempted election was invalid, and conferred no title, and that the relator is still serving out the term to which he was elected in 1867, and entitled to only fifteen hundred dollars. Sec. 5, of art. 3, of the constitution provides that in each judicial district “there shall be elected, 7by the electors thereof, a district judge who shall hold his office for the term of four years.” Sections 3 and 5 of the election law, ch. 36, Gen. Stat., p. 428, reads:

“Sec. 3. On the Tuesday succeeding the first Monday in November 1868, and on the Tuesday succeeding the first Monday in November in every fourth-year thereafter, there shall be held a general election for the election in each judicial district of one judge of the district court,” etc.

“Sec. 5. The provisions of this act shall not apply when there are special provisions in any other statute fixing the time for the election of any of the officers above named.”

■2. General eiectutionai and visions. ^ 3. jwi^s for the hgiitii ana ’ toteiieot™’ iwlfeÉc!870’ 4.Arts,asand stitution.G°objeot and purp°se- ' The only special statutory provision in any way pointing to an election at another time is §15 of ch. 52 of laws 1867, heretofore quoted. Was the election in 1871 a valid election? On the one hand it is claimed that the constitutional term of office is four years ; that the constitutional provision is restricting, and prevents the legislature from increasing that term either directly or indirectly, and that it is self-executing, and authorizes an election at the expiration of four years, whether there be any legislation therefor or not. On the other hand it is insisted, that the constitution is not self-executing, and that some legislation authorizing an election, prescribing place and manner, and establishing rules and regulations, must be had before any valid election can be held. It is unnecessary for us to inquire how far the absence of all legislation would affect an attempted election, for the legislature has by the election law .of 1868 (ch. 36, Gen. Stat., p. 403-428,) established all necessary rules and regulations, and provided all requisite machinery for conducting elections, ascertaining their results, and contesting the same. The constitution, art. 4, § 2, fixes the time for general elections on the Tuesday succeeding the first Monday in November of each year, so that time and place, manner and machinery, are all provided. Indeed, the only thing wanting, if anything be wanting, to make valid this election is express statutory authority therefor. The term of office is,*as we have seen, four years. This being a constitutional provision is beyond legislative change. It is a fixed quantity: Comm’rs of Leavenworth v. The State, ex rel. Latta, 5 Kas., 688. The relator’s term of office to which he was elected in 1867 commenced on the second Monday of January 1868, and terminated on the second Monday of January 1872. The constitution does not fix the day of the year for the commencement of a judicial term, but the statute does: Gen. Stat., 418, ch. 36, §58; and where the constitution is silent, we conceive the legislature has the power; People v. Weller, 11 Cal., 87; State v. Mebling, 6 Ohio St., 43. Besides, the allegation is, that relator’s term commenced in January 1868, so that even if the legislature were powerless, and the term commenced with the qualification of the party elected, the pleadings have placed the commencement in January 1868, and the constitution places the end in January 1872. Since that time the relator holds his office either by virtue of the election of 1871, or by virtue of § 12, art. 3, of the constitution, which declares that “all judicial officers shall hold their offices until their successors shall have been qualified.” If this latter view be correct, the surplus time over the four years, during which he has been holding office, is no part of the term to which he was elected. He either fills an interregnum, as it were, is a sort of temporary supply, or else is occupying a portion of some other person’s term. As the constitutional restriction on increase of salary is operative only during the term, we might stop here, for the relator’s term expired in January 1872, and from that time on, under either view, he would be entitled to $2,000 per annum. But inasmuch as an election might be held this fall (1872) if the question were left open as to the validity of that held in 1871, and unpleasant controversies arise, we deem it not inappropriate to consider the validity of that election, and place our decision of the case upon that ground. And the result of that consideration has been favorable to the validity of such election. To hold otherwise would give to the legislature power to continue any officer (save one of its own members) in office for an indefinite period. For the constitutional provision extends to all state, judicial, county, and township officers, •giving them possession of their respective offices until their successors are qualified. At the expiration of a term there arises no vacancy which can be filled by appointment. An •election must be had, or the then incumbent continues: Borton v. Buck, 8 Kas., 302. A simple omission of the legislature to act might thus give to an incumbent a life-lease of his office. While the possible abuse of a power is no ground for questioning its existence, (for power must be lodged somewhere, and there is always possibility of its abuse,) yet where grave doubts exist as to the meaning and effect of a certain constitutional provision, the balance may sometimes properly be turned by a consideration oí results. The constitution is the paramount law. It is above legislatures, and courts. It was intended as a paramount rule, to be changed only by the peo- .... . . / J r pie m their sovereign capacity. By it they have expressed their purpose, a purpose not to be thwarted by their representatives. As between the will of the people expressed in the constitution, and that expressed in the 'statute, the former always prevails. As between two constructions of the former, that which gives stability and force is preferred to that which makes it simply an expression of desire, subject to the omissions or caprices of each succeeding legislature. The manifest purpose of the constitutional provisions is to secure not merely a fixed term of office to judges, but also to the people at stated intervals the opportunity of ■changing the incumbents. Now, if the constitutional term has no force till re-enacted in the statute, the latter would seem the paramount authority; and all constructions which make the former dependent on the latter tend to belittle the permanent law. The constitutional provision is, that in each district “there shall be elected by the electors thei'eof, a district judge, who shall hold his office for‘the term of four years.” This does not apply to the first district judges alone, but establishes a permanent rule. It would seem a fair implication that such election should be held at the last general ■election prior to the commencement of such term. That would be consonant with the general rule governing all elections everywhere, and a constitution, as well as the statutes,, must be construed in the light of settled and general usage,Of course, where it speaks its words declare its meaning; but it is impossible, in the general terms in which it is couched,, to provide expressly for all possible contingencies. It must be so construed as to give force to and uphold its several provisions ; and in so construing it, it not unfrequently happens that something must be implied to give force to that which is expressed. It says the people shall elect the judges; that the term of office of district judges shall be four years; that general elections shall be held on the Tuesday succeeding the first Monday in November. Is it not a fair implication that it authorizes an election at the general election last prior to the commencement of each term ? Implied authority similar to' this is spoken of approvingly in the cases of The State, ex rel. Crawford, v. Robinson, 1 Kas., 26, and The State, ex rel. Watson, v. Cobb, 2 Kas., 54. We are aware of the difficulties attendant upon this construction, and that in some respects it savors of judicial legislation, something which all courts should be careful to avoid. But in no other way can we uphold the various provisions of the constitution, and carry into effect the will of the people clearly expressed therein. Our conclusion therefore is, that the election of 1871 for district judge was valid; that in January 1872 the relator entered upon a full term of four years, and is entitled to compensation at the rate of $2,000 per annum. The peremptory writ will therefore issue as prayed for.

Kingman, C. J., concurring.