The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1899-02-07

succeeding their election, and that they
hold office for two years from that date
The constitution provides that mem
bers of the house shall be elected for
two years, but does not fix the begin
ming of their term of office. 1t does
provide, however, that the regular SeS-
sion of the legislature shall commence
on the second Tuesday in January OF
each alternate year. Prior to the adop-
ton of the constitutional amendment
providing for biennial sessions there
was a statute in force fixing the time
of the beginning of the term OF office
of representatives. That statutes is as
follows: (Sec. 81, Art 5, G. S. 1859
1.-The regular term of office for mem bers
of the senate and house of representa-
tives shall commence on the second
Tuesday of January next succeeding
their election"
NO CONFLICT OF STATUTES.
This statute has been carried into
each revision and compilation of our
laws since the constitution was amend
ed. The defendant contends that this
statute was abrogated by that conSti-
tutionaI amendment and that we now
have no law fixing the commencement
of the term of office of a representa-
tive. We can not agree with the defend
ant upon this proposition. The statute
in no way conflicts with the constitution
as amended; it is operative under the
constitution subsequent to the amend
ment the same as it was before. When
the regular sessions of the legislature
the time of the commencement of the
representatives term of office, and it
does the same thing now. The constitu-
ton fixes the length of the term and the
statute fixes the date of its commence
ment The constitution and the statu-
tory provisions are not in conflict but
are in harmony with each other.
The fact that the constitution was
amended after the statute was enacted
would not destroy the statute
unless there should be some
conflict between the constitution as
amended and the statute; and SO long
as there is no such conflict it is the duty
of the courts to uphold the statute.
Upon this question, our opinion is
that the term of office OF a. representa-
tive commences the second Tuesday in
January next succeeding his election,
and that he holds his office for two
years from that date. If we are correct
in this position, then the governor call
ed the proper members Of thelegislature
in special session.
GOVERNOR MAY CONVENE.
The constitution provides that the
governor may convene the legislature
in special session. Before the legislature
can be convened there must be legis-
lature to convene. This constitutional
provision has reference to an existing
legislature at the time of the call. When
the members elected meet at the state
capitol qualify and organize them
selves into a body to do business that
organization is the Legislature 1t is
the organization that constitutes the
legislature. The legislature is an entity
and must not be confused with the
members that compose the organization
or which merely go to make up that
entity. The governor, in making his
CALL simply calls into session the or
ganization known as the legislature.
The governor deals only with the or
ganization in existence at the time of
his proclamation. If this be true, the
governor could not have convened in
session as a legislature, the members
of the house elected in November, 1898.
The legislature which is now in session
convened and organized on the second
Tuesday of January of this year, and
the governor who called the special ses-
sion of 1898 had nothing to do with the
individuals or members composing the
present organization and had no power
to convene them
In the argument of this motion some
time was given to a discussion of the
proposition whether the house which
convened in special session in 1898 was
a de facto house of representatives even
If the governor had no authority to con-
vene the legislature in special session
But the court being of the opinion that
the special session was legally called, It
was a de jure legislature, and it is
therefore not necessary to determine
whether there can be a de facto legiSla-
ture or not.
While we have reached the foregoing
conclusions, we fully realize that the
opinion of the attorney general upon
the questions involved, arose solely from
a desire on his part, as the legal ad
wiser of the defendant and of the state
treasurer, to properly guard the funds
of the state SO long as there was any
doubt as to the legality OF acts passed
to require the payment OF money out of
the state treasury.
In accordance with the foregoing con-