Barton v. Kalloch

Ross, J., concurring:

I concur in the judgment, and, in the main, in the opinion of Mr. Justice Thornton. The only section of the Constitution which, in terms, requires any elections to be held on the even-numbered years is § 20 of article xx, which is in these words: “ Elections of the officers provided for by this Constitution, except at the election in the year 1879, shall be held on the even-numbered years next before the expiration of their respective terms. The terms of such officers shall commence on the first *107Monday after the 1st day of January next following their election.” The Constitution does not say that the election of all officers shall be held on the even-numbered years, with the exception stated, namely, the election of 1879, but only that the election of the officers “provided for by this Constitution ” shall be held on such even-numbered years.

Who arc the officers referred to as being officers whose election is “ provided for by this Constitution ” ? In the Stuart case, 58 Cal. 745, that question was answered by the unanimous opinion of the late Supreme Court, in these words : “ We think that these arc not municipal, county, or township officers chosen in 1879, but State officers, such as the governor and the other officers who constitute the executive department of the State government. These arc officers whose election is absolutely provided for by the Constitution itself. But as to the terms of municipal, county, and township officers, another and distinct and utterly inconsistent provision is found in the new Constitution. We refer to § 5 of article xi.” That section is as follows :

“ The legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require; and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of all such officers in proportion to duties, and for this purpose may classify the counties by population; and it shall provide for the strict accountability of county and township officers for all fees which may be collected by them, and for all public and municipal moneys which may be paid them, or officially come into their possession.”

By this section the Constitution has, in express terms, committed to the legislature the power to provide by general and uniform laws for the election or appointment, in the several counties, of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require; and has also committed to the legislature the power to fix their terms of office. The question whether the county, township, and municipal of*108ficers should be elected at all was left to the determination of the legislature; for it is expressly empowered to provide for their election or appointment, and in either event to fix their terms of office. The exercise of this power by the legislature is entirely consistant with § 20 of article xx, as construed in In re Stuart, supra, and in the opinion of Mr. Justice Thornton, but would be utterly irreconcilable with that section if, instead of its own unambiguous language—“ elections of the officers provided for by this Constitution,” etc.—it be made by construction to read: “ Elections of all officers, State, county, township, and municipal, except at the election in the year 1879, shall be held on the even-numbered years,” etc. To adopt the view contended for by the petitioner, the Court would in effect be obliged -to make this radical change in the language of the Constitution. Not only have we no power to do this, but the result would be to bring about the conflict already pointed out. On the other hand, by reading § 20 of article xx, according to the natural import of its own language, the various provisions of the Constitution are consistent and harmonious, and it is our duty so to construe it. Section 10, article xxii (of the Schedule), obviously refers to the officers mentioned in § 20, article xx;. the purpose being, as the section itself declares, to make the future elections in this State conform to the requirements of the Constitution. If the words “ all officers,” in § 10 of the Schedule, mean, as is claimed by the petitioner, all State, county, township, and municipal officers, then it must be conceded that we can read it as if the names of the various officers were inserted in the place of'the words “ all officers.” Section 10 of the Schedule would then read in this way: “ In order that future elections of this State shall conform to the requirements of this Constitution, the terms of governor, lieutenant-governor, etc., sheriffs, county clerks, district attorneys, tax collectors, county recorders, boards of supervisors, etc., elected at the first election under the same shall be respectively one year shorter than the terms as fixed by law or by this Constitution; and the successors of all such officers shall be elected at the last election before the expiration of the terms as in this section provided,” etc. What then becomes of § 5 of article xi ? “ The legislature, by general and uniform laws, shall provide for the election or ap*109pointment, in the several counties, of boards of supervisors, sheriffs, county clerics, district attorneys, and such other county, township, and municipal officers as public convenience may require ; and shall prescribe their duties and fix their terms of office.”

Suppose the last legislature had provided that there should no longer be any county recorders or tax collectors, or that all county officers should be thereafter appointed, and that none of them should be elected, as it clearly had the power to do under § 5 of article xi, how, if § 10 of the Schedule refers to county, township, and municipal officers, could such action' on the part of the legislature be reconciled with that part of § 10 of the Schedule which declares that “ the successors of all such officers (as are elected in 1879) shall be elected at the last election before the expiration of the terms, as in this section provided ? It is plain, that, by construing § 10 of the Schedule as applicable to county, township, and municipal officers, there would arise an irreconcilable conflict between it and § 5 of article xi; whereas, by construing it as applicable to the officers mentioned in § 20 of article xx, which, as already said, is the only section in the Constitution requiring- any elections to be held on the even-numbered years, there is no conflict whatever. It may have been, and probably was, contemplated by the framers of the Constitution, that when the legislature should provide for the election of county, township, and municipal officers, it would require such elections to be held upon the even-numbered years. Whether the legislature, when it shall act, must do so, is a question not before us in this case. As yet the legislature has not acted at all.

Morrison, C. J., concurred in the judgment, and in the opinion of Mr. Justice Boss.