Moore v. Nation

• Citation: 80 Kan. 672,103 P. 107
• Decision Date: 03 July 1909
• Docket Number: 16,433
• Parties: J. MCCABE MOORE v. JAMES M. NATION
• Court: Kansas Supreme Court

103 P. 107

80 Kan. 672

J. MCCABE MOORE v. JAMES M. NATION

No. 16,433

Supreme Court of Kansas

July 3, 1909

Decided July, 1909.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. OFFICE AND OFFICERS--Duties--Performance. The duties of a public office include all those which fairly lie within its scope; those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official and the incumbent may be compelled to perform them. Duties not so related to an office are unofficial, can not rightfully be attached to it, and the incumbent is not obliged to perform them.

2. JURY AND JURORS--Selection--Judicial Function. To make effectual the constitutional guaranty of the right of trial by jury the district court possesses, by virtue of the sovereignty reposed in it, inherent power to provide itself with a jury. The legislature may aid and regulate the exercise of this power, but the selecting of jurors from the inhabitants of the proper territory to determine issues of fact in court is a court function, cognate with that of hearing and deciding, and is not "administrative" in origin, purpose or character in the true sense of that term.

3. JURY AND JURORS--Jury Commissioner--Duty Imposed upon District Judge. Chapter 232 of the Laws of 1907 requires the judge of the district court in certain counties to perform the duties of jury commissioner, and authorizes him to appoint a jury clerk to assist him in the performance of such duties. Held, the duties prescribed are not administrative in character, fall within the scope of the office of judge of the district court, and do not appertain to another office within the meaning of section 13 of article 3 of the constitution forbidding a judge of the district court to hold any other office of profit or trust.

4. OFFICE AND OFFICERS--New Duties--Additional Compensation. When a public official takes office he undertakes to perform all its duties, although some of them may be called into activity for the first time by legislation occurring after he enters upon his term. In such an event he must perform the increased service without increased compensation, unless the legislature has the power and sees fit to grant him additional pay.

5. CONSTITUTIONAL LAW--Additional Compensation for Judicial Officer. The act of 1907 referred to in paragraph 3 contains a provision increasing the salaries of district judges performing the services specified from $ 3000 to $ 3500 per annum. Section 13 of article 3 of the constitution provides that judges of the district courts shall receive such compensation for their services as may be provided by law, which shall not be increased during their terms of office, and that they shall receive no fees or perquisites. Held, that district judges in office when the statute took effect were obliged to render the increased service without increased compensation for the remainder of their terms.

C. F Hutchings, for the plaintiff.

Fred & Jackson, attorney-general, John Marshall, assistant attorney-general, and Charles D. Shukers, special assistant attorney-general, for The State.

OPINION

BURCH, J.:

The plaintiff was judge of the district court of Wyandotte county for the four-year term ending in January, 1909. When he entered upon the term his salary was fixed by law at $ 3000 per annum. Afterward the legislature imposed upon the judge of the district court for that county the duty of preparing and revising lists of qualified jurors and of drawing therefrom the names of persons to serve on juries, and authorized him to appoint a jury clerk to assist him in the performance of such duty. (Laws 1907, ch. 232.) The same act increased the salary of the office to $ 3500 per annum. The plaintiff performed the additional service required of him for the remainder of his term, but the defendant, the state auditor, refused to audit vouchers for the increase in compensation and to issue warrants on the treasurer in payment therefor. The plaintiff asks for a writ of mandamus to compel him to do so.

Section 13 of article 3 of the constitution reads as follows:

"The justices of the supreme court and judges of the district court shall, at stated times, receive for their services such compensation as may be provided by law, which shall not be increased during their respective terms of office; provided, such compensation shall not be less than fifteen hundred dollars to each justice or judge, each year, and such justices or judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state, or the United States, during the term of office for which such justices and judges shall be elected, nor practice law in any of the courts in the state during their continuance in office."

The plaintiff argues that the statute did not create another office--as that of jury commissioner--and make him the incumbent, but that it merely imposed upon him as judge certain additional duties in aid of the discharge of his judicial duties; and it is said that this could be done because the new duties have an ultimate judicial purpose, are incidental to the exercise of judicial power, and are closely connected with and are germane to the judicial function. Excellent authorities are cited for these propositions.

In passing upon a statute conferring upon justices of the appellate division of the supreme court the power to appoint special jury commissioners the New York court of appeals said:

"The constitution of 1846 provided that judges of the court of appeals and justices of the supreme court should not 'exercise any power of appointment to public office,' but this provision was omitted in the revision of the judiciary article in 1870, and it does not appear in our present revised constitution. (Const. 1846, art. 6, sec. 8; Rev. Const., art. 6.) The omission of the express prohibition excludes one by implication. But, while a justice of the supreme court is no longer prohibited absolutely from appointing to public office, a limitation is placed upon his powers in this regard by the provision that he 'shall not hold any other office or public trust.' (Art. 6, sec. 10.) The power to appoint a special jury commissioner is a public trust, because it is intrusted to public officers, to be exercised in behalf of the public, by clothing a private citizen with the powers and duties of public office. Unless, therefore, it has some reasonable connection with a judicial purpose, it is not a part of a judicial office and can not be imposed upon a justice of the supreme court. (Matter of Davies, 168 N.Y. 89, 61 N.E. 118.) What, however, is more germane to the judicial function than the selection of proper jurors to aid in the administration of justice? The right of the jury to decide all issues of fact presented to the court at which they attend makes their selection a judicial purpose of the highest importance. It is an invaluable aid to the discharge of judicial duties, and hence may be attached by the legislature to the judicial office, as incidental to the exercise of the usual powers of that office. The appointment of a jury commissioner rests on the same principle as that of stenographers, judges' clerks, and the like. The appointment of such officers is authorized because the discharge of their duties aids the judges in the performance of their judicial functions; and so the appointment of a special jury commissioner to select jurors aids the judges in transacting the usual business of their courts." ( People v. Hall, 169 N.Y. 184, 195, 62 N.E. 170.)

In the case of Daily Register Printing Co. v. Mayor, etc., 59 N.Y.S. 542, the opinion reads:

"There is nothing in the point as to the prohibition of justices of the supreme court from holding other offices or public trusts. The duty imposed upon the presiding justice, of designating (with others) a law journal in which the calendars of the courts should be published, is nothing more than an additional duty attached to the judicial office. Having made that designation, certain other incidents follow the act, such as the requirement with respect to legal notices generally. But the designation of the journal is, primarily, for the thorough dissemination of the court calendars. This is important in securing preparation for trial and prompt attendance upon the call of the calendars. It would certainly be a very narrow and strained construction of the constitution to hold that a duty, having such results for its object, was foreign to the judicial office. The illustrations of similar duties imposed upon the. presiding justice and his associates by other laws, furnished by Mr. Justice Patterson in his opinion at special term, suffice to show a general legislative intent not to confine the judicial duty to the bare hearing and decision of cases, but occasionally to impose upon the judges, in the line of their vocation, duties bearing upon the general administration of justice." (Page 554.)

If the reasoning of these decisions be unsound, the plaintiff can not recover. If the duties of jury commissioner can not be assigned to the judicial office they belong to another office of trust, which the constitution forbade the plaintiff to hold. For present purposes it will be assumed that the duties specified in the statute fall within the scope of the office of judge of the district court.

Having thus bound up the function of selecting and drawing jurors for the trial of causes with the function of adjudicating such causes, the plaintiff proceeds to sever the ligature so...