1 Kan. 90 | Kan. | 1862
By the Court,
The relator, F. G. Hunt, shows by affidavit that he is the register of deeds of the county of Breckinridge, and that as such register of deeds he made application to the said Calvin Meadows, who is the register of deeds of Madison county, to transcribe all deeds, mortgages, and other instruments of writing affecting any of the real estate of that portion of Madison county annexed to Breckinridge county by an act, approved January 31st, 1861, and that the register of deeds of Madison county refused to permit him so to do.
The relator, upon the showing so made, is entitled to an alternative writ of mandamus, if the act referred to is the law of the State.
The only question involved is, had the Legislature, which was elected under the Territorial organization, and which was in session when Kansas was admitted, the power, after the admission, to pass laws ?
This question is not free from difficulty. Kansas was admitted on the 29th of January, 1861, and this act was passed on the 31st of January, 1861.
By the twenty-third section of the schedule to the constitution the Governor elect, under the constitution, was required, upon receiving official information of the admission of Kansas into the Union, to proclaim the same, and convene the Legislature elected under it. This proclamation was issued on the 9th day of February, 1861.
Section three of the schedule provides that the “ Governor, Secretary and Judges, and all other officers, both civil and military, under the Territorial government, shall continue in
It was, without doubt, competent for the constitution, by its terms, to provide against an interregnum, by adopting the Territorial officers and machinery, and by making the existing functionaries of the Territory the officers of the State for the time being, to secure the means of preserving by legal steps the enforcement of the laws. That they designed so to do and to fill every department of the State government in this way until superceded by the action of the State government, provided for elsewhere in the constitution, would seem to be apparent from the language above quoted. The expression “all other officers” is very broad and comprehensive. It could hardly have been made more so: Members of the Legislature, not only in the common use and acceptation, but in the technical and legal sense of the term, are officers of the government. (Bonv. Law Die. vol. 2, tit. “ Officers,” p. 260.)
The Legislature of the State could, by no process of reasoning, be considered as superceding the Territorial Legislature before the issuing of the proclamation of the Governor convening them.
Had the convention intended to make so notable an exception as the Legislature to the operation of that clause of the schedule, is it not probable they would have so expressed it ?
Having by a clause so broad and general included “ all other officers,” it seems impossible that they could have intended to exclude the Legislature without having done so by positive terms. The object of the clause seems to have been to provide for every contingency, and to secure the State in every event from falling into a position in which its machinery and movements would not be guided by law. It would have been a great calamity for the new State, just escaping from the convulsions that marked its early history,
No one but the Governor elect, or possibly the Lieutenant Governor, was authorized to convene the State Legislature. In case of his death, absence or failure to act, the whole government would have been at sea, unless the Territorial Legislature had a legal existence. It might necessarily have devolved upon the body then in session to have provided for putting into, active operation the regular State government. In no other way would the object of the convention be attained by regular legal means.
This reasoning is greatly strengthened by reference to the views of the Supreme Court of the United States in the case of Benner et. al. vs. Porter, (9 How. 239.) The provision of the schedule of the Florida constitution at the time of the admission of that State, was of precisely similar import, providing that “ all officers, civil and military, now holding their offices and appointments in the Territory, under the authority of the United States, or under the authority of the Territory, shall continue to hold and exercise their respective offices and appointments until superceded under the constitution.” Commenting upon this clause, that Court says: “It will be seen, therefore, under this ordinance of the constitution that on the admission of Florida as a State into the Union, the organization of the government under the new constitution became complete, as every department became filled at once by the adoption of the Territorial functionaries for the time being. The convention being the fountain of all political power from which flowed that which was embodied in the organic law, were, of course, competent to prescribe the laws and appoint the officers under the constitution, by means whereof the government could be put into immediate operation, and thus avoid an interregnum that must have intervened if left to an organization according to the provisions of that
Motion granted.