The Wichita daily eagle., 1894-01-07
ghe aahita na1u Eaee saudau zor,re gauuaru z 1894

county comm missioners, who shall hold
their Office for the term OF three years.
provided, that at the general election IN
1877 the commissioner elected from dis
trict No. in each county shall hold his
Office for the term of one year; the COM
missioner elected from district No. 2, in
each county shall hold his Office for the
term of two years. and the commissioner
elected from district No. in each county,
shall hold his office for the term of three
years; but no person shall hold the Office
OF sheriff or treasurer for more than two
consecutive terms"
1t will really be conceded that any pro-
vision of the statute enacted prior to this
constitutional amendment or enacted sub
sequently. which is in direct conflict with
this constitutional anne endment, could not
stand. So the question TO be determined
would be whether section 9, article 2, Of
the county officers act is in conflict with
this. and if so, what portion of 1t:
l understand it TO be a principle of the
construction qf law, and principle run
ming through all constitutional questions
of construction, that repealS are not
favored by implication. That II any pro-
| vision of the statute can be construed In
harmony with either another statute or in
harmony with the provisions OF the con-
stituton, such statute must stand, and
does not thereby become nugatory.
| 1t is contende;. that by virtue of this
constitutional amendment, it becomes the
! duty of the county commissioners TO di-
| vide the county into districts numbered
one. two and three; that the construction
| of the statute gives the county commits
soners this power, and that therefore the
| legislature does not possess that power. l
do not believe that this position is correct.
This constitutional provision does not say
| to divide it, but IL seems rather to take 1t
| for granted that it has already been divid-
ed. l think it rather involves the starting
| and putting into operation this consttI-
| tionaI provision for the first time so that
| there shall be three county commissioners,
and that after the first election
| each should hold his term for three years;
| thus providing that the one elected in the
| First district should go out at the end of
one year, that the one elected in the Sec
ond district should go out at the end Of two
years, and the one elected in the Third
district should go out at the end of three
years, in this way Keeping Two old mem
bers on the board ali of the time. This
was simply directed for the purpose of
starting into operation this constitutional
amendment and providing that thereafter
county commissioners should hold their
Office for the term of three years.
l do not believe that this constitutional
provision took away legislative authority
over the question. Every municipality
within the state, or every political division
thereof, receives its authority for all Of
the powers which it exercises, either
from the constitution or from the
legislative department Of the state. The
legislature creates all of the minor pO-
litical divisions of the state, county, city
and township, and in the absence of eX-
press constitutional provisions, confers
just such powers upon the municipalities
and ordinary polite i divisions and their
officers, and prescribes how and when
they may act.
Now do not believe that this constitu-
tional provisional took away from the leg
isfature all authority over legislation per-
tanning to the counties of the state, in so
far as the board of county commissioners
was concerned. There is provision in
the law saying that all of this power shall
lodge in the Legislature of the state, and
it grants these powers to muni-
cipalities and minor political divisions
of the state. For that reason do not be-
lieve that the section of the statute refer
led to is in conflict with this provision.
1t is n we'll established rule of construc-
tion that when the statute can be harmon
lied with constitutional provision that
the statute shall be permitted TO stand
to stand only SO far as any of its provis-
ions are not In conflict with the cOnstitu-
tional provision. Because some portion of
it conflicts, it does not therefore follow
ions CT the statute are in conflict. About
that lawyers will not differ.
| desire TO pass on to another question
in this Case which received considerable !
attention from counsel, and has likewise
received attention from the court. |
The contestor claims that of the |
townships which composed the old |
third district, only four of them were in-
cluded in the last election, and that in the |
four, the coutestor Shaup received a ma |
jority of tweuty-six votes, and is therefore !
elected. believe this fairly states the |
position of the -contestor on that branch |
of the case. In the agreed statement of |
facts it will be found that the coutestor |
and contestee have agreed that ever since
Sedgwick county reached thirty Thousand |
in population. the county commissioners
have been elected ACCORDING to the legisla
tive districts. This is practically the
agreement. That prior to the last general
election in November 1898, the contestee,
Webb, was nominated by political party
from delegates representing ali CIR practic-
ally all of the 9Th representative district,
and that the contestor Schaup was nomi-
mated by party in opposition to Webb;
that the tickets cast for Webb bore the
beading or appellation, For Commission
er 9Th Representative district and that
1 he tickets, or most of them, voted tor the
bore the heading or appeliation,
/
A portion of counsel for the confession
l will say, however, not very
strongly. that because the Webb tickets
bore the appeilation For Commissioner !
9th Representative district Webb was
not elected, although be received major
ity. ! do not agree TO this proposition If
| did, | do not know by what process of
reasoning would escape the same con-
clusion as to the appellation or head
ing of the ticket for Schaup
because it bore the appellation For com
missioner, First district, aud he claims in
this action 10 be elected to represent the
Third district.
IL is conteaGed by counsel for contestor |
that the Legislature has no power to make
a comm issloners district IN any County |
the population of such
county, different or other than that pro- !
vided by the board of county commission
ers of he county; In other words. that the
board of county commissioners is she sole
power in the state to make commissioner
districts
According to the agreed statement of
facts it Will be seen that at the time the
rnirti Commissioners district was ere
ated by the board Of county, COM
missioners, Wichita township was part
Ot the Third commissioner district. That
a portion of Wichita town.
ship was taken into the city OF Wichita.
ana became part of the sixth ward; and
also that either the first or sixth wards,
according 20 the ballots cast, would give
ms Jority for the contestee, Webb. Now
L tue board OF county commissioners Is
he only power which can make q commits
,ioners district. how can the city OF Wich-
ia by its council taxing a portion or ALL
We will say Of a township or precinct uu-
% the city. change the commissioner