State ex rel. Little v. Mitchell

50 Kan. 289

• Court: Supreme Court of Kansas
• Decided: January 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

On the 25th day of March, 1891, William M. Mitchell was elected railroad commissioner of the state, as provided by § 2, chapter 124, Laws of 1883, for the term commencing April 1,1891. (Gen. Stat. of 1889, ¶ 1326.) Mitchell qualified and entered upon the duties of his office. On the 8th day of February, 1893, at a regular session of the executive council of the state, Mitchell was removed from the office as such commissioner, and John Hall was elected to fill the vacancy caused by the removal.

On the part of the plaintiff, the contention is, that the executive council, under the statute, has the power to remove the commissioners, or any of them, at its discretion, and elect others to fill their places. On the other hand, the defendant claims that his term of office has been declared by the statute to be three years; that his term has not expired; that he does not hold the office subject to the order of the executive council, and, therefore, under the provisions of the constitution, that he has not been legally removed. Section 1 of article 15 of the state constitution ordains that —

“All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.”

Section 2 ordains that—

“The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment; but the legislature shall not create any office the tenure of which shall be longer than four years.”

The office of railroad commissioner is created by the legislature, by the statute. It is not an office specifically provided for in the constitution. The legislature might have devolved the duties of such an office upon the executive council, or any member thereof. It is conceded that the legislature, in creating the office, had the right to declare the term or tenure thereof) and also that if the term or tenure of the office is not fixed by the statute, the office is held during the pleasure of the executive council, the authority making the appointment. Therefore the question in this case is over the construction of § 2, chapter 124, Laws of 1883. (Gen. Stat. of 1889, ¶ 1326.) The part we are called upon to consider reads:

“The executive council shall, before the first day of April next, elect three competent persons, who shall constitute a board of railroad commissioners, and who shall hold their offices from the date of their respective elections for the terms of one, two and three years from the first day of April next. The executive council shall, in like manner, before the first day of April in each year thereafter, elect a commissioner, to continue in office for the term of three years from said date; and in case any vacancy occurs in said board, by resignation or otherwise, shall, in the same manner, elect a commissioner to serve for the residue of the term. The executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy; and all votes cast by each member of the executive council for the election of any person to the office of railroad commissioner, or removal from the same, shall be recorded in a journal kept by them for that purpose, which journal shall be kept open at all times to public inspection.” (Gen. Stat. of 1889, ¶ 1326.)

We are not to pass upon the wisdom or folly of the statute, but to construe its language:

“It is only when all other means of ascertaining the legislative intention fail that a court may look to the effect of a law; then their interpretation becomes a sort of judicial legislation.” (Dudley v. Reynolds, 1 Kas. 285.)

A court may not refuse to language its ordinary import, when construing a statute:

1. Statutes-rule of construction. “ It is a uniform rule of construction that one part of a statute should be construed by other parts of the same statute, so that, if possible, no clause or part shall be treated as superfluous, and especially when the two are parts of the same section.” (Judd v. Driver, 1 Kas. 464.)

“A statute should be so construed that effect be given, if possible, to every clause and section of it.” (Bridge Co. v. K. P. Rly. Co., 12 Kas. 413.)

“Statutes must be so construed as to harmonize their various provisions, and, so far as possible, to give reasonable effect to all.” (Gardenhire v. Mitchell, 21 Kas. 88.)

With these rules of construction, we can no more strike from the statute the clause, “The executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy,” than we can eliminate the words “to continue in office for the term of three years.” If possible, we must give effect to all the language, and, if possible, the statute must be construed to harmonize. The statute, in our opinion, may be construed to read “as continuing in office the commissioners for the term of three years, unless sooner removed by the executive council.” If the statute be construed in this way, some operation is given to all of its provisions; that is, the term of office of railroad commissioner is for three years, unless removed before the expiration of the term by the executive council, but if there is no removal or resignation, the term expires in three years. (The State v. Stevenson, 46 N. J. L. 344; The State v. Hawkins, 44 Ohio St. 98; Ex parte Hemnen, 13 Pet. 258.) The legislature, in creating the office, it is conceded, had the right to provide that the office should be held during the pleasure of the authority making the appointment, and if the legislature, in creating the office, had not intended to permit the executive council to remove the commissioners at its discretion, the clause, “the executive council may at any time remove such commissioners or any of them,” would have been omitted. The provision concerning “the term of three years” is no more operative than the provision, “the executive council may at any time remove.”

It is contended that there was a fixed intention upon the part of the legislature to declare the term of office of a railroad commissioner to be for three years, and nothing less, and no removal before that time. A strained and unusual construction will be given to the words of the statute to carry out such a meaning, because, to do so, a part thereof must be eliminated. If it be suggested that in giving operation to the clause, “the executive council may at any time remove such commissioners,” it will limit or qualify the prior clause in the statute, “to continue in office for the term of three years,” we answer that these words exist in the same statute, and not only in the same statute but in the same section. Therefore they must not be overlooked. Such a construction ought to be given to these later words of the section of the statute referred to as will not suffer their operation to be defeated. (Reyburn v. Brackett, 2 Kas. 227.) These later words in the section of the statute ought and must prevail as much as the other words, and therefore the necessity of harmonizing the language or clauses of the statute. That the clause, “ the executive council may at any time remove such commissioners, or any of them,” was fully considered and intended to have effect, is apparent from an examination of the journals of the senate and house of the session of the legislature of 1883. Upon the first day of the session of that legislature, bills were introduced relating to the subject of state control of railroads. The senate and house had their separate bills and each included a separate measure. Day after day, for several weeks, the committee of the whole consulted upon this subject. Upon the disagreement of the two houses, a conference committee was appointed and the bill containing the power of removal “for. good cause shown” was defeated upon the disagreement of the two houses and the report of a conference committee. Subsequently, a second conference committee was appointed and its members reported a substitute for 10 different bills, which was finally adopted in the closing days of the session, and is the statute referred to. The second conference report, which was accepted, provided that “ the executive council may at any time remove such commissioners, or any of them,” and the words, “for good cause shown,” were omitted. It is clearly evident, therefore, that the words, “for good cause shown,” after being fully considered, were intentionally rejected from the proposed act, and the statute as passed, purposely and after much contention, included the clause permitting the removal of the commissioners at the discretion of the executive council. The proceedings of the two houses of the legislature upon this subject as reported in the journals are very significant in support of the conclusion reached by this court. (House Journal, 1883, pp. 805-984, et seq.; Senate Journal, 1883, pp. 628-776.)

„ „ . 2. Railroad com-term-power to remove. If it be insisted that the clause, “the executive council may at any time remove such commissioners,” refers to the removal after a trial and conviction for misfeasance or malfeasance in office by a competent legal tribunal, then the words in this clause have no operation, as the tribunal would remove, not the executive council. If it be urged that this clause must be construed to mean a removal for cause, or upon charges after notice, then, to give such a construction, we must judicially interpolate into the statute words to change its meaning; and, to do so, we must add language expressly rejected by the legislature, after great deliberation upon the subject. The statute, as we think it must be construed, makes the term of office of a railroad commissioner three years, subject to the discretion of the executive council, who may remove the commissioners at any time: and when the council, in j ) i its discretion, determine to remove a commissionerj the courts, under the statute, cannot prevent or interfere. “The office was created by the legislature, and that body might abridge its-term by express words, or specify an event upon the happening of which it should end.” (People v. Whitlock, 92 N. Y. 191; Conner v. Mayor, etc., 5 id. 285; Long v. Mayor, etc., 81 id. 425.) In this case, the event specified by the legislature is removal by the executive council.

In New York, a law has recently been enacted by the legislature, the fifty-fifth section of which reads: “The term of office of each county engineer shall be three years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge.” (N. Y. Session Laws, 1893.) Section 3, article 10, of the constitution of New York, is similar to the provisions of the constitution of this state under consideration. (See ¶ 123, p. 646, vol. 1, Rev. Stat. of New York [Birdseye], 1889; 46 N. Y. 61; 34 id. 398; 94 id. 591; 30 Hun, 438.) The lawmakers of that state evidently did not suppose that, in providing that the term of office of county engineer “ shall be three years, unless sooner removed,” they were declaring the term of such office to be definitely for three years without the power of removal. That statute is very similar to § 2, chapter 124, Laws of 1883.

In the course of the argument, it was suggested that the question before the court was somewhat tinged with a political aspect. The political significance to this case, if any, is slight—merely transitory. The rule declared will apply to the newly-appointed commissioners as well as to the defendant ; hence, if the present executive council should desire, it may remove the newly-appointed commissioners at any time; or, if this council shall be succeeded by other members at the next election for state officers, such new executive council may remove at any time the railroad commissioners appointed by the present council. But even if the question raised in this case has a political significance, that will not prevent this court from a prompt and just discharge of its duty. Interests growing out of personal or party polities are frequently involved in the courts, and although the court rendering a decision in such a case can hardly escape having its judgment criticised or its motives impugned, nevertheless, a duty imposed by the statute, however delicate or responsible, cannot be declined. Official obligation and fealty to the constitution, with an upright judge, are above and beyond personal friendships or party interests. (The State v. Kennon, 7 Ohio St. 546.) “The courts are for the people, not for a party, and every person should confidently apply to them with the assurance that his rights, and not his politics, will be considered and adjudicated. A free government is best subserved when based upon equitable and just laws, with fair and impartial courts, open and ready, as far as possible, to redress all grievances.” (The State v. Christy, S. C. Neb. [MSS.])

A judgment of ouster against the defendant, Mitchell, will be entered, with costs.

All the Justices concurring.