In re Ed. Hendricks

• Decision Date: 08 July 1899
• Docket Number: 11481
• Citation: 57 P. 965,60 Kan. 796
• Parties: In re ED. HENDRICKS
• Court: Kansas Supreme Court

57 P. 965

60 Kan. 796

In re ED. HENDRICKS

No. 11481

Supreme Court of Kansas

July 8, 1899

Decided July, 1899.

Original proceedings in habeas corpus.

S. D Bishop, and William H. Mason, for petitioner.

W. B Brownell, county attorney, and L. C. Poehler, for respondent.

OPINION

DOSTER, C. J.:

This is a proceeding in habeas corpus. On the 25th day of May, 1899, Ed. Hendricks, the petitioner, was committed to the jail of Douglas county upon a charge of petty larceny by order of a justice of the peace of the city of Lawrence. He alleges that chapter 124, Laws of 1899, which took effect by publication in the volume of session laws on the 15th day of May of this year, deprived justices of the peace in the city of Lawrence of jurisdiction over criminal actions, wherefore he is wrongfully restrained of his liberty under the order of commitment. Such portions of the act in question as are material to an understanding of the case read as follows:

"AN ACT creating a county court in Douglas county, Kansas, fixing the jurisdiction thereof, and defining the powers and duties of the officers thereof, and limiting the jurisdiction of the justices of the peace in the city of Lawrence in said county.

"Be it enacted by the Legislature of the State of Kansas:

"SECTION 1. That in the city of Lawrence, Douglas county, Kansas, a court is hereby created, to be called the 'county court of Douglas county, Kansas.' Said court shall have one presiding judge. . . . The court hereby created shall sit in the city of Lawrence, . . . provided, that after this act shall take effect justices of the peace of said city of Lawrence shall have no jurisdiction of any case, civil or criminal, except in civil actions for the recovery of money only where the amount claimed, exclusive of interest and costs, does not exceed the sum of one dollar.

"SEC. 2. The governor shall, within twenty days after the enactment of this bill, appoint and commission the judge of said court, whose term of office shall commence with the date of his commission and who shall hold his office until the second Monday in January, 1901, and until his successor is qualified, as hereinafter provided. . . .

"SEC. 8. That the board of county commissioners of Douglas county shall submit to a vote of the qualified voters of said county at the next general election, for the purpose of submitting to the qualified electors the question of whether or not the county court of Douglas county shall be established. The proposition to be submitted shall be printed on the official ballot, and shall bear the printed words and figures, thus:

"Shall a county court be established for Douglas county, Kansas? Yes, No.

"Each elector shall designate his vote by a cross in the blank after the word 'Yes' or 'No' as he desires to vote for or against said proposition. Said votes shall be canvassed by the board of county commissioners, and the clerk shall immediately certify the result of said election to the governor of the state of Kansas, who, if the majority of the electors voting on the proposition at such election shall favor the creation and establishment of said county court, shall immediately appoint a judge for said court, as hereinbefore provided.

"SEC. 9. All acts or parts of acts in conflict with the provisions of this act be and the same are hereby repealed.

"SEC. 10. That this act shall take effect and be in force from and after its passage and publication in the statute-book.

"Approved March 4, 1899."

It is contended upon the part of the petitioner that all of the above partially quoted act is valid except section 8, which requires a submission to the voters of Douglas county of the question whether the court shall be established. That section is said to be a delegation of legislative power, and therefore repugnant to the constitutional provision which vests such power in the house of representatives and the senate, and in support of such view Barto v. Himrod, 8 N.Y. 483, Santo et al. v. The State of Iowa, 2 Iowa 165, and other like cases are cited. It is contended, however, by the petitioner that this section is separable from the remainder of the act, and may be and should be expunged, as it were, leaving the other portions to stand. The provisions thus left standing under this view would be those depriving justices of the peace of the city of Lawrence of criminal jurisdiction and vesting it in the county court of Douglas county. The contention upon the other hand is that section 8 rightly construed is not to be viewed as a delegation of legislative power, but as merely authorizing a submission to the voters of Douglas county of the question whether a county court should be established, and providing for its establishment in the event the voters should so elect. It is said that the law is a complete and unconditioned expression of the legislative will; that such will took effect by enactment, executive approval, and publication in the statute-book, and that such will merely was that the electors might or might not, as they chose, provide themselves with a specially modified judicial system. This, it is said, may be done upon the principle on which the cases of Phoenix Ins. Co. v. Welch, Supt., 29 Kan. 672, The State v. Hunter, 38 Kan. 578, 17 P. 177, and other like cases were decided, without trenching upon the theory of the non-transferability of legislative power. In addition to the two decisions of our own court, Warner v. Hoagland, 51 N.J.L. 62, 16 A. 166, The State v. Parker, 26 Vt. 357, Wales v. Belcher, 3 Pick. 508, The State, ex rel., v. Sullivan, 67 Minn. 379, 69 N.W. 1094, and others, are cited. It is further contended upon the part of the respondent that a general survey of the whole act in question shows that none of its provisions was designed to be operative until after the election upon the question of the establishment of the court, and then only in the event of a favorable vote. This view, if correct, would leave the justice of the peace who ordered the petitioner's commitment in the full exercise of his usual jurisdiction until after the ensuing general election.

The question thus presented is an interesting and important one. A legislative act which provides for its taking effect in the contingency of a favorable popular vote is an illustration of the "referendum" principle of direct legislation by the people. This is said in a broad and untechnical sense, and without reference to the distinction which the courts have drawn between the attempted enactment of laws by popular vote and the acceptance of an enacted law by popular vote. The writer, speaking for himself alone, is firmly of the opinion that the principle of direct legislation is the wiser and more democratic principle, and would like to see it incorporated into the political system of the country. He nevertheless joins with his associates in holding that the above-quoted act is inoperative and void. Our view, however, is not affected by the consideration that the enactment may be regarded as an application of the referendum principle, or as a delegation of legislative power, but by the fact that its principal provisions are so irreconcilable and absolutely contradictory of one another as to prevent the act from having any meaning or effect whatever. A brief analysis of these provisions will show this to be the case.

Section 1 declares that "a court is hereby created." These are words of the present tense, conditioned, however, in law to the time of the taking effect of the act. That time of taking effect was, by section 10, "the publication of the act in the statute-book." By the further provisions of section 1 justices of the peace of the city of Lawrence were deprived of all jurisdiction of criminal cases. So that by the publication of this enactment a court was created, its jurisdiction defined, a presiding judge and subordinate officers provided for, and the jurisdiction of other judicial tribunals taken away or limited to accommodate it. Section 2 provides that "the governor shall within twenty days after the enactment of this bill appoint and commission a judge of said court, whose term of office shall commence with the date of his commission and who shall hold his office until the second Monday in January, 1901." The term "enactment," although inapt to express the beginning of a period of time for the governor's action, might properly be construed to mean "taking effect," so that its use in the section does not prevent an understanding of the act in that respect. The requirement upon the governor to make the appointment within the time specified emphasizes the terms of section 1, which in words of the present tense creates a court and vests it with jurisdiction. Section 9 reads, "all acts and parts of acts in conflict with the provisions of this act be and the same are hereby repealed." According to this all laws conferring jurisdiction upon justices of the peace except to the limited extent specified were repealed so far as the city of Lawrence is concerned. Thereafter the office of justice in that city was but little more than a nominal one and the jurisdiction pertaining to it limited to actions for the recovery of the small sum of one dollar. (In re Greer, 58 Kan. 268, 48 P. 950.) It is hardly accurate to say that by this section all conflicting laws were repealed. These laws, being general in their nature, were not repealed in the proper sense of the word, but the city of Lawrence became exempt from their operation. Such is the meaning of this section rightly construed.

So far the act is reasonably plain and susceptible of comprehension. Were it not for section 8 it could take effect and be enforceable according to its terms, as thus far stated. That section, however, provides that "the...