In re John D. Norton

• Decision Date: 05 April 1902
• Docket Number: 12,836
• Parties: In re JOHN D. NORTON
• Court: Kansas Supreme Court

68 P. 639

64 Kan. 842

In re JOHN D. NORTON

No. 12,836

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Original proceeding in habeas corpus.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURISDICTION--De Facto Court. A court not created by the constitution or by an act of the legislature has no legal existence and, therefore, no power to adjudge one guilty of a crime and sentence him to imprisonment.

2. JURISDICTION--No Color of Office. The appointment or election to an office that has no legal existence gives no color of office to the occupant or color of existence to the office.

3. JURISDICTION--Habeas Corpus. One deprived of his liberty under process issued on final judgment by a court which he claims had no legal existence may maintain habeas corpus to test such jurisdiction.

4. JURISDICTION--Competent Jurisdiction Defined. A court of competent jurisdiction, within the meaning of section 671 of the civil code (Gen. Stat. 1901, § 5167) is one created by the constitution or by an act of the legislature which has been given jurisdiction over the subject-matter and has acquired jurisdiction of the parties.

Blue & Glasse, for petitioner.

A. A. Godard, attorney-general, and J. N. Dunbar, county attorney, for respondent.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This is an original proceeding in habeas corpus. On the 30th day of June, 1900, the petitioner, John D. Norton, was convicted in the court of common pleas of Cherokee and Crawford counties of murder in the second degree, and sentenced to imprisonment at hard labor in the state penitentiary for a term of twenty years. Norton presents his petition for a writ of habeas corpus, alleging that said court had no legal existence at the time he was convicted and sentenced, and, therefore, that his imprisonment is illegal and he ought of right to be discharged therefrom.

The court of common pleas of Cherokee and Crawford counties was created by chapter 16 of the Laws of 1898, passed at the special session. Section 1 provides:

"That a new court of record be and such court is hereby created and established for the counties of Cherokee and Crawford, to be called the court of common pleas. Said court shall have one presiding judge, whose style of office shall be 'judge of the court of common pleas'; and said court shall have two clerks, and style of office shall be 'clerk of the court of common pleas'; provided, however, that the majority of the qualified electors of said counties shall vote in favor thereof as hereinafter provided."

The act provides for the calling of an election in each of said counties, at which the question of the creation and establishment of said court shall be submitted to the qualified electors thereof, and for the canvass of the votes and the certification of the result to the governor by the county clerks of said counties. It also provides for the appointment by the governor of a judge for such court, provided a majority of the electors voting at such election in each of said counties shall vote in favor of the creation and establishment of such court. It also defines the jurisdiction of the court, the term of office and salary of the judge, provides for clerks and the terms of court, and makes all other necessary provisions for carrying out the purpose of the act, in the event the court should be established by a vote of the electors of said counties.

An election was held at which the proposition to establish such court was submitted to the qualified electors. The respective boards of county commissioners of the two counties met thereafter, canvassed the returns, and caused the result to be certified to the governor, who thereupon appointed a judge of said court. The person thus appointed qualified and acted as such judge until his successor, who was elected at the general election in November, 1899, qualified and took possession of the office. Thereafter such successor held court in the several counties, tried causes, and transacted all other business coming within the jurisdiction of the court as contemplated by the act, and in June, 1900, tried, convicted and sentenced the petitioner herein, as alleged in his petition.

Notwithstanding the commissioners, from a canvass of the vote, and the governor, from the returns thereof certified to him, determined that the proposition to create and establish such court had, by a majority vote of the electors voting at such election, been adopted and such court created, it is now conceded by the respondent that such was not the fact; that at the election held for such purpose in the county of Crawford there were 7013 electors voted; that there were 3095 votes for the creation and establishment of such court, which were 412 less than a majority of the votes cast.

The question whether such court was legally established was before us in In re Davis, 62 Kan. 231, 61 P. 809, where it was held that the proposition must be accepted by a majority of all the electors voting at the election in each of said counties, and that, as a majority of the electors voting in Crawford county did not vote in favor of establishing such court, there was no such court created.

While it is admitted by the respondent that the court of common pleas had no legal existence, it is contended that it was recognized by the chief executive in appointing a judge therefor, by the sheriffs of both counties, who served its processes, and by the people, who elected a judge in 1899 to preside over it, and as such court it tried many cases, and was in operation for several months, and was, therefore, a de facto court, and its judgment conclusive and unimpeachable. The argument is that the same reasoning and necessity that demand and obtain recognition by courts of the acts of de facto officers demand in this instance the recognition of the court of common pleas as a de facto court. We cannot accede to this. While there is some authority for this conclusion, and while cases may arise where it would be proper so to hold, yet mere form or color of an office should not be permitted to stand between a citizen and his liberty. There must be a reality in the existence of the court that undertakes to deprive one of his liberty. In all cases where the acts of de facto officers have been upheld, there existed a de jure office. The strongest reasoning why the acts of de facto officers are sustained is that the office is created by the public and put in operation as part of a system of organized society, and a continued administration of the office becomes necessary to the proper adjustment of its affairs and to the perpetuity of the system. This reasoning loses force when we undertake to apply it to a de facto office. Such office, not having been created by the public, and not having been adopted into the organized system, never becomes a part of it, and its displacement does not disturb the harmony of the organization. The act attempting to create the court of common pleas was never a consummated reality. Its existence as a completed act depended wholly on a precedent condition--the affirmative vote of the electors of the counties to be affected.

The contention here made was made in Norton v. Shelby County, 118 U.S. 425, 441, 6 S.Ct. 1121, 1125, 30 L.Ed. 178. The court, speaking through Mr. Justice Field, said:

"But it is contended that if the act creating the board was void and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended...