55 Kan. 298 | Kan. | 1895
The opinion of the court was delivered by
The petition alleges that Doctor Knapp vacated the office of superintendent by resignation on July 1, 1892, but this fact is not otherwise directly shown. It seems probable, however, that early in the year he signified his intention of retiring from the office on June 30, 1892, and that Doctor Wentworth was chosen to take the place when it should be so vacated. The state claims that Doctor Wentworth’s term expired on April 1, 1894, being 15 years or five full terms after the first appointment of Doctor Knapp, and that Doctor Wetmore, who was chosen on July 18, 1894, and who on the same day qualified and demanded the office, is entitled to it until April 1, 1897. The defendant contends that, under said § 3 of the act for the organization and regulation of the asylums for the insane, and the terms of his appointment, he has the right to hold the office until July 1, 1895. A construction of said § 3 is necessary to an adjudication of the rights of the parties. It will be observed that this statute makes no provision whatever for the time of beginning or ending of a term, nor for a vacancy, nor for the filling of an unexpired term, nor for an appointment for less than three years. In these respects it differs materially in terms from most of our statutes regulating
“ Sec. 39. All vacancies in any state or county office, and in the supreme court or district courts, unless otherwise provided for by law, shall be filled by a£>-pointment from the governor until the next general election after such vacancy occurs, when such vacancy shall be filled by election.
“Sec. 40. The regular term of office of all state, district and county officers, of the justices of the supreme and judges of the district courts, shall commence on the second Monday of January next after the election.
“Sec. 41. Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the ¡same daring the unexpired term for which they were elected, and until their successors are elected and qualified ; but, if appointed, they shall hold the same only until their successors are elected and qualified.”
These sections were published as above in chapter 86 of the compilation of 1862. Sections 39 and 41 were re-enacted literally as §§57 and 59, and § 40 somewhat altered as § 58, of chapter 36 of the General Statutes of 1868. No change has been since made, and the sections appear, respectively, as ¶ ¶ 2718, 2719 and 2720 of the General Statutes of 1889. In Bond v. White, 8 Kas. 333, which involved the right to the . office of sheriff, said §§ 57 and 59 were declared constitutional, and we have no doubt of the correctness of that decision as applied to county officers. Whether the sections intended to, or do, cover all cases of judicial vacancies provided for by § 11 of article 3 of the constitution, we need not now inquire, but they were
The State, ex rel., v. Thoman, 10 Kas. 191, required an interpretation of §§ 5 and 13 of article 3 of the constitution, the former fixing the term of office of the district judges at four years, and the latter regulating their compensation, in connection with chapter 52, Laws of 1867, creating the sixth, seventh, eighth and ninth judicial districts. Under this statute, Goodin was elected judge of the seventh district in 1867. He was re-elected in 1871, although the statute of 1867 was silent upon the subject of the recurrence of the election for judges. In the five original districts created by the constitution, the judges were elected in 1860, 1864, and 1868, and the salaries having been raised, the question arose as to the validity of the election of 1871, and it was held that the constitution fixes the term at four years, and it was not in the
We cannot give this act the interpretation suggested on the part of the state, which would, in our opinion, violate rather than carry into effect the will of tlie legislature, as expressed in plain words. If this were allowable on any supposed ground of public policy as to the terms of these officers, yet we could not find any ground on which to base an argument that the public interest would be in any way promoted by the creation of fractional terms by judicial construction. We are aware of no reason that would forbid the appointment of officers for the Topeka and Osawatomie asylums at different times, nor that would require the choosing of the four officers of either institution at
“ Green was elected, as I understand the provision, to fill the vacant office, and not merely to serve out the vacant term of his predecessor. I am inclined to think that a diversity of opinion on this subject has arisen from different applications of the term ‘vacancies ’ in the section of the constitution which we are now considering. It has been sometimes applied to the office, as contradistinguished from the term of*305 service, and at others, to the term of office. I understand it as applicable to the office alone. When Green came into the office, he took it with all the rights, powers and incidents belonging to it, under any circumstances, one of which was a tenure of’three years.”
See, also, The People, ex rel., v. Coutant, 11 Wend. 132; Marshall v. Harwood, 5 Md. 423-431; Sansbury v. Middleton, 11 id. 296, 297 ; Crowell v. Lambert, 9 Minn. 283 ; Whipper v. Reed, 9 Rich. (S. C.) 5 ; Meredith, ex parte, 33 Gratt. 119 ; Keys v. Mason, 3 Sneed, (Tenn.) 6; Brewer v. Davis, 9 Humph. (Tenn.) 208-13 ; Banton v. Wilson, 4 Tex. 400. The Virginia case is very instructive, reviewing many of the authorities.
It should also be added that the case cited from 11 Wendell was afterward affirmed by the court of errors (id. 511), Chancellor Walworth delivering the opinion of the court.
The fact that the board made the appointment of Doctor Wentworth “for the unexpired term ending June 30, 1894,” is of no consequence, for under the authority of Hale v. Bischoff, supra, he will hold until July 1, 1895.
Judgment in favor of the defendant.
The case of The State, ex rel., v. T. J. Hayes will be disposed of in the same manner. He was appointed steward for the same asylum February 6, 1892, but ' the record does not show when his appointment was to take effect. On July 18, 1894, W. H. Wilson was appointed, but as the term of Hayes did not expire until February 6, 1895, or at a latter date, (depending upon the time when his appointment became effective,) tli ere was no vacancy at the time of the appointment of Wilson, and judgment must be rendered in favor, of the defendant.
I am unable to reconcile the conclusion reached in this case with the prior decisions of this court. It seems to me that no sound distinction can be drawn between the case presented by an appointment made at a time prior to the expiration .of a regular three years’ term and that of an election to the office of judge of the district court, either after a vacancy has been filled ‘by appointment until the next-general election, in accordance with the provisions of the constitution, or where an election is held on the happening of a vacancy. The case cited from 88 Grattan, 119, is to the effect that an election of judge would be for the full term, and not merely for the unexpired term ; but this court, in the cases of The State, ex rel., v. Thoman, 10 Kas. 191, and Peters v. Board of State Canvassers, 17 id. 365, cited in the opinion, adopted the other rule, and in the latter case held that the legislature could not even by statute provide for a change of the regular succession of terms of office, though a judge had held over his term of four years because of a failure to elect a successor. The cases mentioned applied the rule which had been declared in The State, ex rel., v. Cobb, 2 Kas. 32, with reference to the terms of office of the justices of this court to judges of the district court. The constitution provides that a judge of the district court “shall hold his office for the term of four years.” The only provision for filling vacancies is to fill them until the next regular election. The judge who is elected at that election would appear to have as strong a claim to hold for four years by virtue of the provisions of the constitution as the superintendent of the asylum can possibly have under the statute under consideration. But this court ,held, in the cases