State ex rel. McHenry v. Jenkins

Bliss, Judge, delivered the opinion of the court. Relator applies for a peremptory writ of mandamus upon the defendant, as judge of the Court of Common Pleas of Kansas City, to issue a commission to him as clerk of his court. [264] The relator was elected clerk at the last general election, received the proper certificate, and demanded a commission from, the judge, which, by the act creating the court, it is his duty to give to the clerk. There was no irregularity in the election, if any election to fill this office could then be had. Mr. Vincent, the present acting clerk, was elected in 1864 for four years. The office was declared vacant by the vacating ordinance of March IT, 1865; he was at once reappointed by the governor, under the provision of the ordinance that the vacated office shall be filled by the governor “for the remainder of the term of each of said offices.” The relator claims : 1. That the term of Mr. Vincent did not expire until the first Monday of January, 1869, and that there could have been no election to fill the office until the general election of 1868. 2. If his time expired in January, 1867, there should have been an election in 1866; yet, inasmuch as there was none, the omission can be supplied by an election in 1868. Section 22, article VI, of the constitution provides that “ clerks of all courts of record shall be elected by the qualified voters of the county at a general election, and shall hold office for the term of four years from and after the first Monday of January next ensuing, and until their successors are duly elected and qualified. The first election of such clerks after the adoption of this constitution shall be at the general election in the year one thousand eight hundred and sixty-six, any existing law of this State to the contrary notwithstanding.” If the constitution is to be followed, it is clear that ‘ ‘ clerks of all courts of record” holding office under the constitution shall be elected; that the first election shall be in 1866; and that their term shall be four years. The constitution found in existence clerks in every county whose terms under existing law expired at ' different times. They had all been appointed by the governor under the vacating ordinance ; and, had there been no constitutional provision on the subject, elections of their successors would have been held for some in 1866, some in 1868, and some in 1870. The object of this section of the constitution was to establish a uniform rule both for the length of the term and its commencement. That object could not have been secured in [265] plainer language than that used. If the constitution controls the mattei^, the term of Mr. Yincent expired in January, 1867, for the plain reason that it could not extend beyond the time when the office must be filled by a new election. It is claimed that the constitution does not interfere to shorten his term, and that he holds under the appointment of the governor for his full four years. This claim cannot be set up except upon the hypothesis that the ordinance is of equal force with the constitution, and that its provisions cannot be changed by that instrument, which will not be seriously pretended. That there might be no possibility of cavil, the draughtsman of that section, knowing that various general and local laws of the State had provided different modes of appointment, length and commencement of terms, added the last clause, “any existing law of this State to the contrary notwithstanding.” We hold, then, that there should have been an election to fill the office at the general election of 1866. But, as there was no such election, is there a vacancy ? Or if not, who is the present clerk ? By the terms of the act creating the Kansas City Common Pleas, as well as by the constitutional provision, the clerk shall hold his term until the election and qualification of his successor. Thus there is no vacancy, and Mr. Yincent holds over. In relation to relator’s second claim, that the omission to hold an election in 1866 can be supplied by one in 1868, we can only say that it is a valid one if the law provides for any such election. But he has failed to show us any such provision, and it would be difficult to give legal validity to a volunteer 'election. No election can be had unless provided for by law. As the law makes no provision for the election of clerks in 1868, such election is wholly void and of no effect. This position has never been questioned. In The State v. Robinson, 1 Kansas, 17, a question was raised as to the validity of an election for governor, and it was held that the election under consideration was not provided for by law, that the person elected could not take the chair, and that the previous governor should hold over until the next general election. No case has been known where a volunteer election has been held valid, even though the term of the incumbent had expired. The.wtit is refused; The other judges concur.