Morgan v. Board of Commissioners

24 Kan. 71 | Kan. | 1880

The opinion of the court was delivered by

Brewer, J.:

The agreed evidence in this case shows, that Pratt county, prior to July 26, 1879, was unorganized; that on said date it was duly organized; that the first election in said county was held on the 2d day of September, 1879; that at said election a full set of county officers was chosen, including a probate judge; that the next regular November election was held on the 4th day of November, 1879; that at said November election E. R. Morgan received the entire number of votes cast for probate judge in said county; that the sheriff of Pratt county made no mention of the election of probate judge in his notice for the said November election; that defendants are the board of county commissioners of the said county, and county clerk, as alleged, and have been since the September election, 1879; that the said board of county commissioners, sitting as the canvassing board of said county, refused to canvass the votes cast at the November election for the office of probate judge of said county, and still refuses so to do. The plaintiff therefore asks a peremptory writ of mandamus, to compel defendants to canvass the returns of the votes cast at said November election for the office of probate judge of Pratt county.

We think the plaintiff is entitled to his writ. So far as the omission of the sheriff to mention the office of probate judge in his proclamation is concerned, that of itself cannot vitiate the election. This was a general election, and the law determined what officers were to be elected. (Jones v. Gridley, 20 Kas. 584.) So far as the right to elect a probate judge at such election is concerned, the reasoning in Hagerty v. Arnold, 13 Kas. 367, goes far to settle it. True, the case is not exactly in point, for there the officer voted for at the first general election received the office, and the question was as to the length of his term. If Morgan had been declared elected and had received his office, that decision would be authority for holding that his term expired this coming winter, instead of continuing two years. We see no reason to depart from that decision, and the argument which upholds that, sustains plaintiff’s claim. That case sustained the statute providing for the organization of new counties, as well as that prescribing the time for the commencement of the regular terms of county officers. It recognized the power of the legislature, under the constitutional provision concerning the organization of new counties, to provide in such organization, and as a part of it, for county offices of terms less than two years; that is, the legislature having prescribed the time for the commencement of the regular terms, which terms, by constitutional requirement, are of two years’ duration, may make any provision whatever for filling the time intermediate the organization of the county and the commencement of such regular terms, even as said in the opinion in that case, “if it requires two elections in one year.” It is but part of the organization of the county to carry it forward to the time for the commencement of the various regular terms of its several offices. All this was settled by that case. Now the statute provides that the officers elected at the special election shall hold until the succeeding general election. And the constitution defines the term “general election.” It says: “General elections shall be held annually, on the Tuesday succeeding the first Monday in November.” (Const., art. 4, § 2.) The November election is the general election, and that whether few or many offices are to be filled. It may be said that when the statute provides that the officer elected at the special election shall hold until the next general election, it means the next general election for that office. But this is not the natural import of the language, and seems to ■ require an interpolation of certain words. The phrase “general election” has a constitutionally defined, fixed and uniform meaning, and is independent of the terms of office or the number of officers to be elected. If any other meaning is intended, there ought to be some qualifying or limiting words to indicate that further or other sense. There is no need of any interpolation; the language is clear, and no injury or annoyance is done by giving to it its natural meaning. An election based upon that understanding of the statute was treated as valid-in Hagerty v. Arnold, supra. Bot'h sides assumed that such an election was proper, and the case was discussed and decided by this court upon that assumption. Aud we think the assumption was correct. The constitutionality of the statute was expressly affirmed, and affirmed upon the supposition that it meant exactly what we now decide it to mean. For if the statute means that the officer elected at the special election shall hold until the commencement of the next regular term, there was, in fact, no such question as was discussed and decided in that case.

Without pursuing the argument further, we conclude that there was properly an election for the office of probate judge, and that a mandamus must issue to compel a canvass' of the votes cast for that office.

All the Justices concurring.