this act we have: (a) The establishment of S. M. Brewster, Atty. Gen., S. N. Hawkes, the court and its jurisdiction and procedure; Asst. Atty. Gen., and J. L. Hunt, of Topeka, (b) changes in the substantive law of the for plaintiff. H. McCaslin, of Osborne, for state; (c) changes in the laws for the elec- defendant. tion of officers of city courts wholly unrelated to the courts to be established under this act. Whether these three main topics are so germane or pertinent to each other as to constitute one subject is worthly of study and reflection, but need not be decided. Since we have seen that this act (chapter 196 of the Laws of 1915) is clearly violative of section 17 of article 2 of the Constitution, it follows that the judgment of the district court must be reversed, with instructions to enter judgment for the state. It is so ordered. ring. (98 Kan. 435) All the Justices concur STATE ex rel. BREWSTER, Attorney Gener- DAWSON, J. This is an original proceeding to test the constitutionality of chapter 210 of the Laws of 1915, and it takes the form of an application for a writ of mandamus to require the county clerk to file primary election petitions which are regular under other statutes, but which ignore the provisions of the act in question. The act, in part, reads: "An act relating to the nomination and election of county superintendent of public instruction. * "Section 1. In any primary election held for the purpose of nominating candidates for county offices and in any general election held for the election of county officers the right to vote intendent of public instruction shall be restrictfor candidates for the office of county supered to the qualified electors residing in said county and not residing in any city of the first or second class; and the ballots prepared for use June 10, 1916.) in cities of the first and second class in said primary or general election shall not contain the names of candidates for the office of county superintendent of public instruction; provided, that nothing in this act shall disqualify a person residing in any portion of the county from being elected to the office of county superintendent." (Syllabus by the Court.) 1. ELECTIONS 60 QUALIFICATIONS OF VOTERS-CONSTITUTIONAL PROVISIONS. Where the Constitution creates a county of fice to be filled by election, the electors defined by the Constitution are the electors by whose suffrage such office is to be filled. [Ed. Note.--For other cases, see Elections, Cent. Dig. § 56; Dec. Dig. 60.] 2. ELECTIONS 15-QUALIFICATIONS OF VOTERS CONSTITUTIONAL PROVISIONS. It is not within the power of the Legislature to abridge the right of suffrage for an office created by the Constitution when that instrument prescribes that such officer shall be chosen by election. [Ed. Note.-For other cases, see Elections, Cent. Dig. & 10; Dec. Dig. 15.] 3. ELECTIONS 15-VALIDITY OF STATUTE SCHOOL OFFICERS. TION OF CONSTITUTIONAL QUESTIONS-WHо clines to file and certify the name of Bertha The county clerk of Osborne county deL. Yoxall as a candidate for the office of county superintendent, or to cause her name to be printed on the ballots at the ensuing primary election, because her nominating petitions are largely signed by residents of Osborne, a city of the second class. The state, through its chief law officer, takes the position that the act is in violation of the Constitution, particularly section 1 of article 5 and section 1 of article 6, and inferentially section 19 of article 2, section 2 of article 9, and section 1 of article 15, and that the nomination and election of county superintendents must proceed as heretofore and without regard to this act of 1915. Since the Constitution defines the qualifications of electors (Const. art. 5, § 1) and provides that "a superintendent of public instruction shall be elected in each county" (Const. art. 6, § 1), a statute restricting the right of suffrage for such officer to electors of the county residing in the county territory lying outside the cities of the first and second class and abrogating the The intervener, R. M. Crum, is a candiright of the qualified electors of such cities to date for the office of county superintendent vote for such officer is unconstitutional and void. [Ed. Note.-For other cases, in Sedgwick county, and is interested in the see Elections, Cent. Dig. § 10; Dec. Dig. 15.] proper interpretation of the act, and argues 4. CONSTITUTIONAL LAW 42-DETERMINA-in favor of its validity. Indeed, it may be proper to say that the idea expressed in the act has been more or less popular for many years, and teachers' associations and kindred societies interested in rural education have frequently indorsed the proposition. Cities of the first and second class are provided with superintendents of schools, and consequently it, has been popularly supposed that such city voters have little concern with the qualifications of county superintendents, and it has been a more or less prevalent idea that the rural school interests have suffered on that account, and that perhaps a class of county superintendents more deeply in Where a question arises as to the constitutionality of a statute, the state is interested; and its name may be lawfully invoked by the Attorney General or county attorney to maintain an appropriate action to have the matter adjudicated. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. 42.] Original proceeding by the State, on the relation of S. M. Brewster, Attorney General, for mandamus to John Doane, as County Clerk of Osborne County, and R. M. Crum intervenes. Writ allowed. The county superintendent is a constitutional officer. Section 1 of article 6 of the Constitution, in part, reads: terested in the welfare of rural schools Amendment adopted November, 1912; Laws would be chosen if their election depended 1911, c. 337, § 1. wholly upon the suffrage of the people who reside in the rural districts of the county, or at least outside the cities of the first and second class. But we are only concerned with the constitutionality of this act. It would not help the proposition for us to concede its wisdom or desirability. The Legislature from time to time has prescribed special qualifications for county superintendents. Prior to 1899, it seems that any person qualified to hold any office might aspire to and hold the office of county superintendent. Gen. Stat. 1899, c. 92. In that year, the Legislature enacted that only a teacher of 18 months' experience or more, and holding a second grade teacher's certificate or something better, would be eligible to the office, but excused persons then holding the office of county superintendent from such qualifications. Gen. Stat. 1901, § 6099. In 1903, these qualifications were slightly changed. Laws 1903, c. 202. The standard of qualifications was again elevated in 1907, when chapter 167 of the Laws of 1907 was enacted. That statute reads: A superintendent of public instruction shall be elected in each county, whose term of office shall be two years, and whose duties and compensation shall be prescribed by law." Other incidental provisions of the Constitution read: * shall have the "The Legislature power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this Constitution." Const. art. 2, § 19. 39 "The Legislature shall provide for such county and township officers as may be necessary.' Const. art. 9, § 2. "All officers whose election or appointment is appointed as may be prescribed by law." Const. not otherwise provided for, shall be chosen or art. 15, § 1. [1-3] A considerable number of county offices are created by statutes and not by the Constitution, and it is clearly within the pow er of the Legislature to provide for the election or appointment of all mere statutory officers in any reasonable manner; but it is also clear that, where the Constitution itself creates the office and provides that the holder of such office shall be elected, the electors defined by the Constitution are the voters for such officer and their right of suffrage for that office cannot be abridged by the Legislature. On this point the authorities appear to be uniform, and none are cited by counsel to the contrary. In 1876, a question arose touching the right of a woman to hold the "That a person to be eligible to the office of County superintendent of public instruction must hold a professional certificate, first-grade certificate, or a state certificate, or be a graduate of an accredited college or normal school, and must have taught at least eighteen months: Provided, that this act shall not apply to any persons now holding the office of county superintendent or to any person who is now a county superintendent elect." Gen. Stat. 1909, § 7379. Doubtless the power of the Legislature to prescribe qualifications for county superin-office of county superintendent, it being artendents is not yet exhausted; and it might be entirely competent, for example, for the Legislature to prescribe that county superintendents should have a reasonable experience in the teaching of rural schools next precedent to their induction into the office of County superintendent. Gen. Stat. 1909, § 2225; Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646, 34 L. R. A. (N. S.) 240; 29 Cyc. 13767. But here we do not have to consider the qualifications of the officer, but the qualifications of those whose suffrages select the officer. The Constitution defines the qualifications of voters: "Every [white] male person of twenty-one years and upwards belonging to either of the following classes-who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election shall be deemed a qualified elector: (1) Citizens of the United States; (2) persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization." Const. art. 5, § 1. The word "white" was nullified by the fifteenth amendment to the Constitution of the United States, March 30, 1870. "Section 1. The rights of citizens of the state of Kansas to vote and hold office shall not be denied or abridged on account of sex." Suffrage gued that there was some co-ordinate relation between office-holding and voting. This was denied by the court, and it was held that a woman was eligible although she was not then, nor until 36 years later, a qualified elector. But in the opinion Mr. Justice Brewer said: "And in all these cases, where the people have cations of those to make the choice of officers, restricted their power by prescribing the qualifithey cannot, except by an amendment of the same instrument, add to or take from those restrictions." Wright v. Noell, 16 Kan. 601, 603. This observation was but an elementary statement of thoroughly established law. In Wheeler v. Brady, 15 Kan. 26, 32, where the question of qualifications of electors of school district officers was under discussion, it was said: * "If said section (Const. art. 5, § 1) applies, then this right to vote * * is a constitutional right which cannot be abridged by the Legislature, or by any other power except the entire people of the state by way of amendment to the Constitution." Elsewhere in the same opinion it was said: "The Constitution provides for two, and only two, elections, to be held by the people, to wit, general elections and township elections (Const. art. 4, § 2); and it does not anywhere even mention school-district elections or meetings. It provides for, or at least recognizes, the election of various officers: First, all the state officers provided for by the Constitution, to wit the Governor, lieutenant governor, secretary of state, auditor, treasurer, Attorney General, and superintendent of public instruction (Const. art. 1, §§ 1, 2, 14). * * Eighth, county superintendent of public instruction. Id. art. 6, § 1." In State v. Monahan, 72 Kan. 492, 84 Pac. 130, 115 Am. St. Rep. 224, 7 Ann. Cas. 661, where a statute restricting the qualifications of electors for drainage district officers was under consideration, it was said: "The decision [in Wheeler v. Brady, 15 Kan. 26] was based upon the principle that the constitutional expressions concerning the privilege of voting were intended to apply only to those elections provided for by the Constitution itself. It is universally held that the enumeration in a state Constitution of the classes of citizens who shall be permitted to vote is to be taken as to all matters within the purview of the provision as a complete and final test of the right to the exercise of that privilege, and that the Legislature can neither take from nor add to the qualifications there set out. 15 Cyc. 281, 282, 298; 10 A. & E. Encycl. of L. 573, 576, 577." In McCrary on Elections (2d Ed.) § 72, it is, in part, said: "The doctrine that the Legislature cannot add to the constitutional qualifications of voters is founded upon the well-settled rule of construction that when the Constitution specifies the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition or to extend the penalty to other cases. Cooley's Constitutional Limitations, 64; Rison v. Farr, 24 Ark. 161 [87 Am. Dec. 52]." In Cooley's Constitutional Limitations (7th Ed.) 902, it is said: "Wherever the Constitution has prescribed the qualifications of electors, they cannot be changed or added to by the Legislature, or otherwise than by an amendment of the Constitution." The case of St. Jo. & Denv. City R. R. Co. v. Buchanan Co. Ct., 39 Mo. 485, is in point. In that case the Legislature of Missouri by statute provided that a county might issue bonds to aid a railroad company if the bonds were authorized by a vote of the taxable inhabitants. The Constitution of Missouri had defined the qualifications of electors, and these did not include a qualification contingent on taxation. The court held that the Legislature could not ingraft additional restrictions upon the constitutional right of suffrage and held the act void. To the same effect are: Opinion of Justices, 117 Mass. 603; People ex rel. Bolton et al. v. Albertson, 55 N. Y. (10 Sickles) 50; People v. Raymond, 37 N. Y. (10 Tiffany) 428; Monroe et al. v. Collins, 17 Ohio St. 665; State v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833; State ex rel. Wood v. Goldstucker et al., 40 Wis. 124. In our study of this question we have noticed a distinction between "regulation" and "restriction" of the right of suffrage. The registration laws being mere exercise of the police power to regulate and preserve the purity of elections are usually upheld, while statutes restricting the constitutional right to vote are invariably void. [4] Some minor matters presented may be briefly disposed of. The state is a proper party-indeed, the proper party-to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. State v. Kansas City, 60 Kan. 518 [57 Pac. 118]." State v. Lawrence, 80 Kan. 707, 103 Pac. 839. Where the constitutionality of a statute is in doubt the state's law officer, its Attorney General, or county attorney, may exercise his best judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662), by mandamus to compel obedience to its terms (State v. Dolley, 82 Kan. 533, 108 Pac. 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. v. City of Neodesha, 3 Kan. App. 319, 45 Pac. 122). While it is not necessary for the determination of this act, counsel for the state cite many statutes showing that the people of the entire county, those living in cities of the first and second class as well as those in the rural districts, are concerned in the election of the county superintendent of public instruction. The county pays the superintendent's salary. Laws 1913, c. 197, § 5. The county superintendent has jurisdiction over Barnes high schools. Gen. Stat. 1909, §§ 7767, 7796, 7797. This officer has duties pertaining to county levies to aid certain schools. Laws 1911, c. 263. He is president of the board of trustees of county high schools (Gen. Stat. 1909, § 7769), with power to make county levies for their support. Gen. Stat. 1909, § 7770. He apportions the annual and county school funds to both city and rural school districts. Gen. Stat. 1909, § 7382. Many other duties which affect the entire county more or less are imposed on this officer by sections 7430, 7509, and 7763 of the General Statutes of 1909, chapter 263 of the Laws of 1911, chapter 268 of the Laws of 1911, and chapter 300 of the Laws of 1915. It must be held that chapter 210 of the Laws of 1915, which restricts the right of suffrage for superintendent of public instruction to electors residing outside cities of the first and second class and excludes the suffrage rights of residents of such cities, is a clear infringement of the constitutional right of suffrage conferred upon all the qualified electors of the county, and is therefore void. The writ is allowed. All the Justices concurring. (38 Kan. 318) SEVERY STATE BANK v. GRAGG. (No. 20222.) (Supreme Court of Kansas. (Syllabus by the Court.) 1. EVIDENCE 354(2) - DOCUMENTARY EVIDENCE-BOOKS OF ACCOUNT. it was error to admit the books in evidence because the entries were made when he was not present and could not bind him. They June 10, 1916.) were the books made in the regular course of business, and were competent evidence under the statute (Civ. Code, § 384 [Gen. St. 1909, § 5979]). Richolson v. Ferguson, 87 Kan. Barker v. Railway Co., 88 Kan. 767–770, 129 411, 413, 124 Pac. 360, 40 L. R. A. (N. S.) 855; Pac. 1151, 43 L. R. A. (N. S.) 1121; Cockrill v. Railway Co., 90 Kan. 650, 653, 136 Pac. 322; 17 Cyc. 382. evidence showing the amount of the overThey were prima facie draft, and that the $1,175 check, which defendant gave payable to the order of M. J. Bidwell, had been paid to Bidwell's personal account. There was nothing on the check itself to give notice to the bank that it was money intended to be paid to the bank. In an action by a bank against a customer to recover an alleged overdraft, entries in the books of the bank, made in the regular course of business, are competent (Civ. Čode, § 384 [Gen. St. 1909, § 5979]) in favor of the bank as prima facie evidence of the condition of defendant's account, and also to show to whose account checks drawn by him had been paid. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1438, 1439, 1442; Dec. Dig. 354(2).] 2. BANKS AND BANKING 227(2)—ACTION FOR OVERDRAFT EVIDENCE. In this action it is held that the defendant suffered no prejudice by the testimony of a deputy bank commissioner to the effect that when he took charge of the bank he found a draft drawn against the defendant, which the bank had paid about 90 days previous and had been carrying as a cash item, and that he directed the bookkeeper to charge the draft to defendant's account, which was done. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 871, 873; Dec. Dig. 227(2).] 3. BANKS AND BANKING 227(2) ACTION FOR OVERDRAFT EVIDENCE. Other evidence examined and the instructions considered, and held, there was no error authorizing a reversal. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 871, 873; Dec. Dig. 227(2).] Appeal from District Court, Elk County. Action by the Severy State Bank against W. W. Gragg. From a judgment for plaintiff, defendant appeals. Affirmed. lant. Howard J. Hodgson, of Eureka, for appelF. S. Jackson, of Topeka, and A. F. Sims, of Howard, for appellee. PORTER, J. The bank sued defendant to recover the sum of $1,318.41, alleged to be an overdraft of his account. The sum sued for was made up of checks to the amount of $480.02, drawn on the bank by the defendant and duly paid, and a sight draft drawn on him for $838.39 in payment of a carload of corn which was paid by the bank. The defendant concedes the correctness of the amounts of the several items of the account, but claims he is entitled to credit for $1,175, which he alleges he loaned the bank through its president, M. J. Bidwell. The bank claimed that the loan was made to Bidwell in his individual capacity and not to the bank. This question of fact was the sole controversy in the case. The jury returned a verdict in plaintiff's favor, and judgment was rendered against defendant, from which he appeals. [1] The plaintiff introduced in evidence its bank books, showing the individual accounts both of defendant and M. J. Bidwell. It is claimed this prejudiced the defendant; that [2] The draft for the corn was dated November 19, 1912, but was not charged to defendant's account until February, 1913, and then under these circumstances: Bidwell had absconded, and the bank was in charge of Mr. Thompson, deputy bank commissioner, who testified that he found the draft in the bank carried as a cash item, and that he at once directed the bookkeeper to charge it to defendant's account. It is seriously contended that the evidence was improper, and very prejudicial to the defendant, because, it is said, it gave the jury to understand that a state official, who testified he had no interest in the suit, had determined and decided that it was a legal charge against defendant, and it is argued that the jury were unduly impressed by the evidence. We think there was no danger of the testimony misleading or unduly impressing the jury. Besides, the count, and he practically concedes this. draft was properly charged to defendant's acadmits the draft was one authorized by him and was paid by the bank; and his sole defense is that the bank owed him $1,175 which he had loaned it, and for which he should be given credit as against the draft and his other checks paid by the bank. He was not able to satisfy the jury that he loaned the money to the bank. The check given at the time he says he made the loan was payable to M. J. Bidwell or order. True, he says Bidwell wrote the check, and he signed it without observing how it was drawn, but the jury had the right to consider the fact that he had been president of the bank himself, and was supposed to have enough experience in banking to know how checks are drawn. He Mr. Thompson was also permitted to testify that in the customers' wallet, where collections belonging to customers were kept, he found a note which was introduced in evidence. The note was for $1,175, signed by M. J. Bidwell and payable to defendant's order. It bore the same date as the check. While it is true there was no evidence offered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to show that the defendant had ever seen the [ment would constitute a preference in favor note or knew that it was there, it was not er- of the defendant. ror to admit the note and the testimony concerning it. [3] The court sustained an objection to a question asked of the former cashier respecting his knowledge of the banking laws of the state, prohibiting the payment of a draft where there are no funds to meet it. The objection was properly sustained. There is no doubt that the draft was paid, and that defendant got the benefit of it. We find no error in the instructions. Taken together, they correctly informed the jury of the real issues in the case, and the jury understood that if they found from the evidence that the loan was made to the bank, and not to Bidwell, the bank was responsible for its return, and the defendant would be entitled to a credit for the amount thereof. We find no error in the record, and the judgment will be affirmed. All the Justices concurring. (98 Kan. 266) [1] The brief presents the point that the evidence was insufficient to sustain the decision. It is argued, however, that the testimony of one witness was wrongfully received on behalf of the plaintiff because it told of knowledge on his part, as plaintiff's agent, obtained prior to the time he became agent, touching mortgages filed for record by the debtor, which knowledge was received by means of daily reports issued by an abstractor. It is contended that the defendant could be chargeable only with knowledge of the agent, acquired while such agency existed, and not previously. If, however, the previously acquired knowledge was clearly in the agent's mind at the time of the transaction, the principal is bound thereby. Hess v. Conway, 92 Kan. 787, 142 Pac. 253; Underwood v. Fosha, 96 Kan. 240, 244, 150 Pac. 571. [2] Having received the daily reports which seem to have shown various mortgages by the debtor the witness, a bank cashier, while acting as agent for the defendant, HUMPHREY v. WYANDT MORTGAGE & may be presumed to have had in mind the INVESTMENT CO. (No. 20042.) (Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) 1. PRINCIPAL AND AGENT 179(2)-RIGHTS AS TO THIRD PERSONS-NOTICE TO AGENT. Rule followed that a principal is bound by knowledge of his agent, clear in his mind, though previously obtained, it being proper to use such knowledge for the principal. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 686; Dec. Dig. 179(2).] 2. PRINCIPAL AND AGENT 177(1)-RIGHTS AS TO THIRD PERSONS-NOTICE TO AGENT. The principal having certain means of knowledge, it was not material whether or not the agent had the same means. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 670, 672; Dec. Dig. 177(1).] 3. APPEAL AND ERROR 1002 REVIEW QUESTIONS OF FACT. condition shown by such reports. He testified to considerable first-hand knowledge obtained otherwise while holding the note for collection. At any rate the defendant itself received these daily reports, and it makes no material difference whether or not its temporary agent had the same knowledge presumably possessed by his principal. [3] This leaves the case in the very usual attitude of being a fact case determined by the trial court upon sufficient though conflicting evidence. Such determination is final. The judgment is therefore affirmed. All the Justices concurring. STATE v. WHITWORTH. Verdicts based on sufficient conflicting evi- (Supreme Court of Kansas. dence, under the trite and venerable rule, must stand. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.] Appeal from District Court, Dickinson County. (Syllabus by the Court.) CRIMINAL LAW 878(3)-Verdict-Several Where two separate offenses, involving two separate and independent transactions, are charged in separate counts in an information, a verdict of not guilty as to one count is not a bar to further prosecution, or a verdict of guilty, on the other count. Action by H. L. Humphrey against the Wyandt Mortgage & Investment Company. [Ed. Note. For other cases, see Criminal From a judgment for plaintiff, defendant ap-Law, Cent. Dig. § 2100; Dec. Dig. 878(3).] peals. Affirmed. C. S. Crawford, of Abilene, for appellant. G. W. Hurd, Arthur Hurd, and Bruce C. Hurd, all of Abilene, for appellee. Appeal from District Court, Leavenworth County. Gertrude Whitworth was convicted of arson, and appeals. Affirmed. John T. O'Keefe, of Leavenworth, for appellant. S. M. Brewster, Atty. Gen., and Floyd E. Harper and L. B. Rutherford, both of Leavenworth, for the State. WEST, J. The trial court decided that the defendant received $175 from one who the following month was adjudged a bankrupt, and must account for it on the ground that it knew, or had reason to believe, that the payor was insolvent at the time, or that the pay-a conviction for arson. MARSHALL, J. This is an appeal from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |