72 P. 869 | Kan. | 1903
The opinion of the court was delivered by
his is an original proceeding in quo warranto to determine who is entitled to the office of mayor of Kansas City, a city of the first class having more than 50,000 inhabitants. The plaintiff was a candidate for that office at an election held April 7, ■1903, and, out of 12,986 votes cast, he received 7735, a majority of 2484. The defendant was elected mayor in April, 1901, and has served since that time. He now claims that he is entitled to continue in office because there was no warrant of law for the election of a mayor in April, 1903 ; that in the newly revised charter act of cities of the first class, adopted by the 1 gislature at its session of 1903 (Laws 1903, ch. 122),
“Sec. 12. All elections for city officers shall be held on the first Tuesday in April of each year.”
“ Sec. 16. In each odd-numbered year there shall, in all cities having less than fifty thousand inhabitants, be elected a mayor, city attorney, city clerk, city' treasurer, police judge, and one councilman from each ward, who shall hold their offices for two years and until their successors are elected and qualified. In all cities containing more than fifty thousand inhabitants, the mayor shall appoint a city counselor, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said city counselor may be removed at any time by the mayor .without cause, and whose authority shall be superior to and whose duties shall be coextensive with those of the city attorney, together with such other duties as the mayor and council shall prescribe. . . . The mayor shall also appoint a police judge, who shall be confirmed by the council, and who shall hold his office for a period of two years, unless sooner removed, and said police judge may be removed at any time by the mayor without cause. . . . City clerk, city treasurer and city attorney shall be elected as herein provided for other cities of the first class. . . . The mayor may appoint such other officers as are created by ordinance, who shall hold their offices for a period of two years unless sooner removed, and such officers may be removed at any time by the mayor without cause.”
“Sec. 19. The term of all elective or appointive officers shall be two years and until jbheir successors are elected and qualified.”
Article 4 enjoins many and varied dutiss upon the
“When any vacancy shall happen in the office of mayor by death, resignation, absence from the city, removal from office, refusal to qualify, or otherwise, the president of the council for the time being "shall exercise the duties of the office of mayor, with all the rights, privileges and jurisdiction of the mayor, until such vacancy is filled or such disability is removed, or, in case of temporary absence, until the mayor shall return; and in case of such vacancy, other than temporary absence or disability, the .person exercising the office of mayor shall forthwith cause a new election to be held, giving ten days’ notice by proclamation.”
Now it is claimed by the defendant that because the word “mayor” is left out of the third paragraph of section 16, which provides for the election of city clerk, city treasurer and city attorney in cities of the first class having more than 50,000 inhabitants, and because there is not elsewhere in the act found any provision explicitly providing for the election of mayor in such cities, there was no authority under the law for the people to elect a mayor on the 7th day of April, 1903, and therefore the defendant, who is the incumbent of the office by reason of his election in 1901, is entitled to hold over indefinitely. The question put concisely then is, By the omission of the word “mayor” from the list of officers to be elected as indicated in the third clause of section 16, did the legislature intend that that officer should no longer be regularly elected by the people, and that the mayor found in office upon the taking effect of this act should hold over indefinitely — for life, maybe — or is there authority, express or implied, to be found in the act, or elsewhere
By the charter act of cities of the first class passed in 1868, the legislature provided that, commencing with the first Tuesday in April, 1869, and each alternate year thereafter, “an election shall be holden by the authorities of each city governed by this act, for mayor, . . . who shall be elected for the term of two years, and shall hold their respective offices until their successors are elected and qualified.” Here is found specific authority for the election of a mayor by the people. In 1874 the legislature passed an act, probably designed to cover the entire field concerning the government of cities of the first class, which specifically provided the manner for the election of councilmen but made no such provision in the case of mayor. It did, however, direct that all existing laws not inconsistent with this act should remain in full force. Thereby the law for the election of mayor found in the statute of 1868 remained in force. In 1875 an amendment to the act of 1874 was adopted, whereby provision was made for the election of a mayor on the first Tuesday of April, 1877. This act, however, contained no direction for such election in any subsequent year. The repealing clause again went only to such acts or parts of acts as were inconsistent with its provisions. In 1881 the legislature again undertook to enact a complete charter for cities of the first class, which provided for an election of mayor on the first Tuesday in April, 1881, but made
It was under the provisions of the law of 1895 that the defendant was elected mayor of Kansas City in 1901, and if his election was legal and his holding now is justified under the law it must be either by concluding that the-specific direction for continuing the election of mayor of cities of the first class on the first Tuesday in each alternate year after 1869, as contained in the law of 1868, authorized it, or, that under the act of 1895, which was in force in 1901, and in which no more specific provision is found on this subject than in the law of 1903, was implied authority
We think there are very cogent reasons for the conclusion that the provision for the election of mayor found in the act of 1868 is yet in force. Certain it is that it has never been specifically repealed. If repealed at all, it is by implication. But such repeals are not favored by the courts, and to be permitted they must be plainly so intended, and if by an act concerning the same subject-matter, the entire subject must be covered. Clearly in this case the later acts did not cover the entire subject, as one of the most important matters — according to defendant’s contention — to wit, the election of mayor, was omitted.
Assuming, however, that the effect of the passage of the subsequent charter acts was entirely to wipe out the provisions of the law of 1868, we will pass to the inquiry whether there is found in the express provisions of the present act. read in the light of the former acts, which are in pari materia, sufficient implied authority for the election of mayors of cities of
“This doctrine does not empower the courts to go to the length of supplying things which were intentionally omitted from the act. But it authorizes them to draw inferences, from the general meaning and purpose of the legislature, and from the necessity of making the act operative and effectual, as to those minor or more specific things which are included in the more broad or general terms of the law, or as to those consequences of the enactment .which the legislature must be understood to have foreseen and intended. This is not the making of lat? by the judges. It is educing the will of the legislature by the logical process of inference. ‘It is a rule of construction that that which is implied in a statute is as much a part of it as what is expressed.’ And as a statute must al*354 ways be construed with reference to the preexisting law, it will often happen that- many details are to be inferred from the general language of the act, which are understood as necessarily involved in it though not enumerated.”
On the same subject it is said in Sutherland on Statutory Construction, section 336
“A necessary implication means not natural necessity, but so strong a probability of an intention that one contrary to that which is imputed to the party using the language cannot be supposed.”
Let us then turn to a consideration of the general scope and some of the particular terms of the act in question. Nowhere in the act is the office of mayor specifically created^. That it exists is recognized in numerous instances. The functions and duties of the mayor in his various relationships are specified and-defined. The clear implication exists that the office of mayor is created by the act. If the office is created and duties imposed upon the one occupying it, it follows of course that the legislature intended that such officer should be selected in some manner. There are but three suggested ways in which this could be done : (1) By appointment; (2) by electioii; (3) by the continuance in office of the one holding it at the time of the taking effect of the act — for life, or until he should resign or be removed. As no provision is found in the act by the remotest implication for the appointment of mayor, we are shut out of the conclusion that he^is to be appointed. It must therefore be that he is either to be elected at the time of the election provided for by the statute to hold for the term indicated, or that the one holding the office at the time of the taking effect of the act was to hold over in that office for an indefinite length of time, terminated only by death, resignation, or removal from
Now let us see what we find in the act implying a purpose that the office should be filled by election. In section 77 it is provided that when a vacancy shall happe'n in the office of mayor, by death or resignation, a new election shall be held for the purpose of filling such vacancy. This is a clear implication that a former election had been held. No new election could be held unless an old one had been had. A new election in this connection means another election and presupposes a prior election. That this implication arises from this language is admitted by the defendant, but he limits it to elections which are elsewhere in the act especially provided for; that is to say, that when section 77 speaks of a vacancy in the office of mayor and provides a new election to fill such vacancy it means a vacancy occurring in the office of mayor in cities of the first class containing less than 50,000 inhabitants, because elections in such cities are only provided .for. To our minds this is
Again, section 12 provides when elections, that is, general elections, shall be held — on the first Tuesday in April of each year. Section 16 directs that the election of general officers be held in the odd-numbered years. Section 19 limits the term of office of all elective or appointive officers. Reading all these sections and provisions together, and we discover, by inference, that the office of mayor is thereby created (by inference from section 77); which office shall be filled by election (section 12) at the regular election held on the first Tuesday in April (section 12) in each odd-numbered year (section 16) ; that he shall hold his office for the term of two years and until his successor is elected and qualified (section 19). ‘ ‘ When any vacancy shall happen in the office of mayor by death, . . . the person exercising the office of mayor shall forthwith cause a new election to be held " (section 77). -Implications much similar to the ones here made were invoked to give coherency and effect to statutory and constitutional provisions in The State of Kansas, ex rel. Crawford, v. Robinson and others, 1 Kan. 17; The State, ex rel. Watson, v. Cobb, 2 id. 32 ; The State, ex rel. Goodin, v. Thoman, 10 id. 191.
Section 16 specifically provides that councilmen in office at the time of the taking effect of the act shall continue to hold until their terms expire. Had the legislature designed to continue the incumbent mayor in office, would not some similar language appropriate to that end have been used ? No such language was used. Defendant's contention rests upon.
■ The fact remains that since 1874, with the exception of the elections in 1877 and 1895, the law has been as questionable as now, yet all this time the legislature, by its various revisions, and the people, by a quarter of a century of elections held under it, have given a construction such as we deduce therefrom, a construction never before questioned, and upon the correctness of which rests, not only the validity of the defendant’s de jure title now and 'during his entire term, but even his claim to hold over; for, under section 19, which is the only section, upon which such a claim can be made, it is only as an elective officer that he can claim that right.
We are of the opinion then that warrant for'holding the election of April 7, 1903, is found in the express terms of the unrepealed provisions of the law of 1868, and also in the implied provisions of the new charter act of 1903. We find no inconsistency in thus holding as to both. Indeed, beyond doubt the implications found in the later act are such because of the existence of the former. The various acts coming on down from 1868 recognize that one, and are based upon and referable to it, and the last is explained and made efficient by it.
“. . . Was the latter bound, before he could maintain this proceeding, to test the right to the office, to tender his bond, or to take or offer to take the oath of office ? This is the only remaining question. We think the statute requiring the oath and bond must be construed to apply only to persons holding the certificate of election, those whose rights are admitted by the person holding it, and those’who, with*360 out having the certificate, have obtained a judicial determination establishing their right to the office. The certificate of election, whether rightfully or wrongfully given, confers upon the person holding it the prima facie right of holding for the term. And this prima facie right is subject to be defeated only by his voluntary surrender of the office, or by a judicial determination of the right.
“We find nothing in any of our statutes warranting the inference that the legislature ever contemplated requiring any person, claiming to have been elected to an office, to take the oath or file the bond, while another person, holding the certificate of election, is in possession of the office under the certificate, refusing to yield to the claim, and the right has not yet been tried.”
In State v. Frantz, 55 Neb. 167, 171, 75 N. W. 546, where the respondent was in the possession of the office having a prima facie right to it by reason of his holding a certificate of election, and where the relator had no certificate, his election being denied by the respondent, it was held:
“We know of no case holding that there is any right given or duty imposed on any officer or board to approve an official bond offered by one who possesses no competent evidence whatever of his election or appointment. Had the relator presented his bond as treasurer to the county board of Saline county, that body would have no right to approve it and thereby recognize his title to the office. Mr. Frantz held the certificate of election, and that was to them conclusive evidence of his right until the conflicting claims of the parties should be judicially determined in a proper proceeding. Consequently nothing would have been gained — no useful purpose would have been served— by the execution and presentation of an official bond. (People v. Miller, 16 Mich. 56.) The logic of respondents' contention, therefore, is that the relator lost his right to the office by failing to have that done which, under the circumstances, was legally impossible of*361 performance. We do not think the statute should receive so narrow an interpretation. We think that the failure of Barton to have his bond executed and approved within the statutory period was not the result of his neglect, and that section 15 aforesaid has no application to cases of this character. Such failure, according tó the averments of the information, was entirely due to the negligent or wilful omission of the precinct boards to discharge the duties imposed upon them by law. It seems to us that the act in relation to proceedings by quo warranto governs the case. Section 711 of the code of civil procedure provides that if judgment be rendered in favor of one claiming an office he shall proceed to exercise its functions after he has qualified.as required by law. This provision evidently contemplates that the successful claimant shall qualify after judgment of ouster and proceeds on the assumption, of course, that he did not qualify before.
“Our conclusion is that the relator may prosecute this action without having qualified as treasurer of Saline county, and that if he shall be successful he may be inducted into office upon giving, and having approved, his official bond with the oath of office indorsed thereon.” '
(See, also, People v. Scannell, 7 Cal. 432 ; People v. Potter, 63 id. 127; Pearson v. Wilson, 57 Miss. 848 ; State, ex rel. Attorney-general, v. Steers, 44 Mo. 223; State, ex rel. Heath, v. Kraft, 18 Ore. 550, 23 Pac. 663 ; The State, ex rel. Ackerman, v. Dahl, 65 Wis. 510, 27 N. W. 343.)
It could hardly be expected that plaintiff wbuld take the oath and file a bond to qualify him for the exercise of the duties of an office out of which he was being kept, and which he was uncertain he would ever be permitted to occupy. At least, this question can hardly be raised by one keeping him out of the-office and wholly denying his right thereto. It is proper to add that the evidence shows that the plain
The -plaintiff was elected as one of the councilmen-bf the city at the election in 1902. His term as such-would not expire until April, 1904. The defendant urges as an additional reason why the plaintiff should not prevail that, as he cannot hold the offices of mayor and councilman at the same time, he cannot-resign his office as councilman unless his resignation be accepted by the body which is called upon to fill the vacancy, to wit, the mayor and council; and that that body, by resolution, has declared “that we and each of us do hereby refuse to consent to said Thomas-B. Gilbert’s resigning, vacating or abandoning his said office as councilman, and declare him, by reason-of the incompatibility of the office of mayor and councilman, to be ineligible to take or hold the office of mayor of the city of Kansas City, Kan.” Granting-that the office of mayor and councilman are incompatible, and that the duties of both may not be exercised by the same person at the same time, a-councilman is not thereby rendered ineligible to election to the office of mayor. Granting, further, that the resignation of an pfficer is not completed until it-is accepted by the body empowered to appoint a successor, still the contention of the defendant would not be sound. There are ways plaintiff may lay down the office of councilman other than by resignation. One of these is by the acceptance of an incompatible office. (23 A. & E. Encycl. of L., 2d.ed.,. 427.) This would not require the concurrence of the-mayor and council. When he shall be inducted into-the office of mayor, he thereby vacates the office of
After, the election and before the council convened as a canvassing board, and with the knowledge of his election given to him by common report, the plaintiff sat and voted with the city council, "and it is claimed that by so doing he waived his right to claim the office of mayor and elected to continue in the incompatible office of councilman. We find no merit in this contention. He did not know, as a matter of law, that he was elected mayor. It required the official canvass of the vote to establish that fact. He had not received his certificate of election, which was the official evidence of it. He had no legal right to enter upon the office of mayor at the time he was exercising the duties of councilman. There was therefore no adverse election by such exercise.
Judgment must be entered for the plaintiff.