Kirkpatrick v. State

• Decision Date: 15 May 1868
• Citation: 5 Kan. 673
• Parties: J. C. KIRKPATRICK, et al, v. THE STATE OF KANSAS, ex rel. MCKEE
• Court: Kansas Supreme Court

5 Kan. 673

J. C. KIRKPATRICK, et al, v. THE STATE OF KANSAS, ex rel. MCKEE

Supreme Court of Kansas

May 15, 1868

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Error from Douglas County.

The action brought in the court below against the plaintiffs in error was in the nature of quo warranto, to determine whether the said plaintiffs in error were legally entitled to hold the office of councilmen of the fourth ward of the city of Lawrence, situated in Douglas county. They claimed to have been elected such officers of said ward, which ward was erected out of territory claimed to have been annexed to the city lying north of the Kansas river opposite. The facts are substantially as follows:

From the 23d day of February, 1867, the city of Lawrence was a municipal corporation, organized under an act of the legislature, approved on that day; was situated on the south side of the Kansas river, Douglas county, with its northern boundary line, in the centre of that stream; that the land described in the information, lies north of the city of Lawrence, across said river, directly opposite. The north half of the river at this point is about 350 feet wide, on an average.

On the 26th day of February, 1866, said territory had been, by the county commissioners, made a part of Wakarusa township; had been surveyed into town lots, and the plat of the same duly acknowledged and filed according to law. The condition of the record of the proceeding to incorporate the town of "Jefferson," as designated in the petition, or "North Lawrence," as designated in the order of incorporation, left some questions as to whether the proceedings were by the probate court or before the judge thereof, and there was some conflicting proof as to whether there were the requisite number of names on the petition asking the incorporation. The board of trustees of the "town" so organized proceeded to business, appointed officers, and an incorporation de facto existed at the time that the act concerning second class cities of February 27, 1867, went into operation, when an ordinance of the "town" was passed organizing under that act as the "City of Douglas," and, under that organization, a city de facto existed with its officers.

An information in the nature of a writ of quo warranto was brought to inquire by what right the said officers of the City of Douglas held their offices respectively, and the said officers were ousted by the judgment of the court, May 19, 1867.

Immediately after this decision a petition was introduced into the council of the city of Lawrence praying that the territory in question be annexed to the city of Lawrence as the fourth ward thereof; an ordinance of the city of Lawrence was passed, approved January 12th, 1866, annexing the territory as prayed, as adjacent platted territory, and an election was held at which the plaintiffs in error were duly returned as elected councilmen of said fourth ward of said city of Lawrence as aforesaid.

The district court rendered judgment against the officers.

The following opinion was filed in the court below, January 8, 1868:

VALENTINE, J.

This is an information in the nature of quo warranto, ostensibly to inquire by what authority the respondents, Kirkpatrick and Mason, assume to exercise the powers of councilmen for the city of Lawrence, but really to determine the status of North Lawrence, whether it is, itself, a distinct and independent city, or whether it is only the fourth ward of the city of Lawrence, or whether it is unorganized territory, not under the control of any municipal corporation.

It is admitted by all parties that the territory of North Lawrence was, on the 26th day of February, 1866, unorganized, but it is claimed by the relator McKee, that on the next day, February 27, the town was duly organized as a municipal corporation under the act of February 1, 1859, (Comp. Laws, 398) and that it has since that time remained a distinct municipality.

The first question to determine is, whether the act of February 1st, 1859, was, on the 27th of February, 1866, a valid and existing law; and involved in this question are these other questions:

1. Is that act in contravention of the organic act, or in other words, was it a valid law at the time of its passage?

2. Is it in contravention of the state constitution, or in other words, if it was valid when it was passed, did the constitution, on taking effect, repeal it?

3. If not repealed by the constitution, has it been repealed by the state legislature?

The respondents claim that it is in contravention of the organic act, because the legislature had no authority to give to probate courts the power of organizing municipal corporations:

1. Because that power is a legislative power, which cannot be delegated by the legislature to any other tribunal, but can be exercised by the legislature alone.

2. Because that power is a judicial power which could be conferred only upon the district courts of the territory and not upon the probate courts.

It is true that in this country the power to organize municipal corporations must originate with the legislature, and in that sense the power is legislative, but if the legislature must necessarily act specifically upon each corporation, then in this state where the legislature is prohibited (Sec. 1, Art. 12, State Const.) from thus acting, we can have no corporations at all. We think the legislature may through the intervention of probate courts, or otherwise by general laws, grant corporations, and while the granting of corporations is ordinarily a proper subject of legislation, yet it seems that it is not necessarily so, for they have seldom been granted in any country by the legislative branch of the government, and in England they have usually been granted by the King's letters patent only. 2 Blackstone Com., 473.

Supposing the power of organizing a corporation, or rather of judicially determining when a corporation is organized, is a judicial power, then is the act void for that reason? Section twenty-seven of the organic act vested all the judicial power of the territory in a supreme court, district courts, probate courts and justices of the peace, and while it defines to some extent the powers of the several courts, yet in a general provision it provides that their jurisdiction "shall be as limited by law." And as the organic act nowhere prohibits the probate courts from exercising such power, and as such power is nowhere specifically given to any other court, it would seem that this general provision would give the legislature full authority to confer it upon probate courts. It is true that the territorial supreme court in the case of Lockname v. Martin, decided that because the organic act gave to the district courts both common law and chancery jurisdiction that therefore the probate courts could not exercise such jurisdiction. Admitting that decision to be correct, yet it does not decide this case, for the act of organizing corporations under the act of February 1, 1859, is not a common law or chancery proceeding, but is a special statutory proceeding, unknown to the courts of common law or courts of chancery. This must have been the opinion of the legislature, for they passed this act long after that decision was made, and had the full benefit of the decision.

The same questions arise with respect to this act under the constitution as under the organic act, and nearly the same arguments for both sides of the question apply. Both the constitution and the organic act, in defining the powers of the different judicial tribunals, do not define particularly their jurisdiction, but leave a vast amount of judicial power to be placed where the legislature shall see fit.

The state constitution, section one, article three, vests all the judicial power of the state in a supreme court, district courts, probate courts, justices of the peace, "and such other courts, inferior to the supreme court, as may be provided by law." Under this section we suppose that the probate judge may be made a judge of a criminal court, as has been done in Leavenworth county, or he may be made a judge of any other special jurisdiction or proceeding not prohibited by the constitution, under the name of a probate court, or under any other name that the legislature may see fit to impose upon it. If the act was a valid law when the state was admitted, we think section four of the schedule to the constitution, continued it in force.

It is also contended that the act has been repealed by section seven, of the act conferring certain jurisdiction upon probate courts. [Comp. L., 466.] The repeal at most can only be by implication, which is never favored in law. [1 Kent's. Com., 467; Smith Stat. and Const. L., 879.] But we think there is no repeal, even by implication, as the two acts are not inconsistent with each other in any particular. This act has been on the statute book nearly nine years. Two different territorial legislatures and seven different state legislatures have been in session since its passage. Many important rights and long approved remedies have accrued under it, which is strong evidence in favor of its validity.

Supposing the act to have been a valid law on the 27th of February, 1866, the next question is whether North Lawrence was legally organized under it. We think that the records of the probate court of Douglas county upon their face show that North Lawrence was legally organized, but upon the introduction of these records several questions arise:

1. Can we go behind the...