Rambo v. Larrabee

• Decision Date: 10 October 1903
• Docket Number: 13,554
• Citation: 73 P. 915,67 Kan. 634
• Parties: WILLIAM RAMBO v. JOE LARRABEE et al
• Court: Kansas Supreme Court

73 P. 915

67 Kan. 634

WILLIAM RAMBO v. JOE LARRABEE et al

No. 13,554

Supreme Court of Kansas

October 10, 1903

Decided April 21, 1903; July, 1903.

Original proceeding in mandamus. First opinion filed April 21, 1903. Rehearing granted. Second

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Laws of a General Nature. The first clause of section 17, article 2, of the constitution which is, "All laws of a general nature shall have a uniform operation throughout the state," is mandatory upon the legislature.

2. CONSTITUTIONAL LAW -- Uniform Operation of General Law. A law of a general nature which does not have uniform operation throughout the state is unconstitutional and void.

3. CONSTITUTIONAL LAW -- When Either a General or a Special Law May be Enacted. If the object to be accomplished by a law is in its nature special, either a general or a special law may be enacted, as the legislature may decide.

4. CONSTITUTIONAL LAW -- Whether General or Special, a Question for the Courts. Whether a law is general or special in its nature is a question for the courts, and not for the legislature.

5. CONSTITUTIONAL LAW -- General Law Defined--Class Legislation. An act, to have a uniform operation throughout the state, need not affect every individual, every class, or every community alike. It is competent for the legislature to classify and adapt a law general in its nature to a class, but such classification must be a natural and not an arbitrary or fictitious one, and the operation of such general law must be as general throughout the state as are the genera therein provided for.

6. CONSTITUTIONAL LAW -- Criminal Appeals--Act of 1903 Void. Chapter 390, Laws of 1903, entitled "An act concerning criminal appeals in counties containing more than 65,000 inhabitants, in certain cases," is general in its nature, and as it does not have a uniform operation throughout the state it is unconstitutional and void.

J. K. Cubbison, for plaintiff.

James S., Gibson, county attorney, and B. S. Smith, for defendants.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

By chapter 390, Laws of 1903, entitled "An act concerning criminal appeals in counties containing more than 65,000 inhabitants, in certain cases," it is provided that any person who has been, or who shall hereafter be, convicted of murder or manslaughter in any county containing more than 65,000 inhabitants, who files with the clerk of the court in which said person was convicted his affidavit setting forth that he believes that he has a just cause for appeal, and that by reason of his poverty he is unable to pay the stenographer for a transcript of the testimony and record, and who satisfies the judge of the court that he is unable to pay for said transcript and record, shall be entitled to have such record prepared without any expense to himself and the costs thereof shall be assessed to the county. Prior to the passage of this act plaintiff herein was convicted of murder in the second degree in the court of common pleas of Wyandotte county, and after its passage applied to the defendant, the stenographer of that court, for a transcript of the testimony and record, making a showing of his inability to pay for the same, as provided for in the act. The stenographer, doubtful of the constitutionality of the act, refused to comply with the request, and thereupon this action in mandamus was brought in this court.

Upon its first submission, the only question raised was that indicated in the per curiam opinion reported in 72 P. 225. Thereafter, upon its request, the county of Wyandotte was made a party, as being the real party in interest, and a rehearing of the questions involved was granted. Counsel for the county now urge the invalidity of this act for the reason that it is special, class and partial legislation, and as such condemned by the spirit of the bill of rights and the terms of the constitution.

With the development of the idea of self-government, there came its necessary corollary, equal rights under the law. This corollary had a comparatively. slow development and recognition, and it was the almost universal custom in the earlier legislative history of the states to carve out from the body of citizenship special individuals or classes and to grant to them, by the enactment of special laws, privileges or immunities which should have been, in all justice, accorded by general law to all those of the class to. which the favored ones belonged. To meet this evil, there came to be engrafted into the later constitutions of nearly all of the states provisions directed in varying terms against it. In our own constitution these issues were met and principles concreted in section 17 of article 2, which reads as follows:

"All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted."

The exact duplicate of this provision is not found in the constitution of any other state in the Union. In the convention which framed our constitution the committee upon which was imposed the duty of formulating the article upon "legislative department" reported this article in the following words: "In all cases where a general law can be made applicable, no special law shall be enacted." This form is the one more generally adopted in the older states, but is much less comprehensive than the one in which it was finally cast. Clearly the words of this provision are mandatory in form. "All laws of a general nature shall have a uniform operation throughout the state." In view of the evils which were designed to be remedied by embodying such provision in the constitution, it cannot be held that these mandatory forms of expression were simply directory, for to permit the legislature to go on bestowing special privileges upon individuals or classes where equal rights only should be conferred, which would be the result if the constitution left the legislature to determine when laws were general and when special in their nature, would not be in any degree to limit the evil sought to be remedied. In Ohio, where the constitutional provision was, "All laws of a general nature shall have a uniform operation throughout the state," the supreme court, in Kelley v. The State of Ohio, 6 Ohio St. 269, held it to be "a general unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature--or in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature."

This announcement of the mandatory character of this constitutional provision has been followed in The State v. Powers, 38 Ohio St. 54, 63; Falk, Exp., 42 id. 638; State, ex rel., v. Ellet et al., 47 id. 90, 23 N.E. 931, 21 Am. St. Rep. 772; The State, ex rel., v. Bargus, 53 id. 94, 41 N.E. 245, 53 Am. St. Rep. 628.

In Sutherland on Statutory Construction, section 117, the same doctrine is stated, and it is recognized in all states, so far as we have been able to ascertain. Indeed, we are at a loss to know how these provisions could be construed otherwise, considering their form and the purpose for which they were put into the constitution. It cannot be said that the constitution makers thought that by this direct mandatory statement they were simply giving advice to the legislature, trusting to its own judgment as to whether the things therein apparently commanded should be observed or otherwise.

We are brought then to a consideration of the correct meaning of this provision taken as a whole. In this we have no definite help from the decisions of courts of other states, for, as we have suggested, no like provision is elsewhere found. The section contains two clauses. The first is, "All laws of a general nature shall have a uniform operation throughout the state"; that is, all laws which in their nature are general shall have such operation. Illustration cannot add to the clearness of this language. If the subject which the legislature desires to deal with by the enactment of a law is general in its character, then the mandate comes to it that the operation of the law which deals with such subject shall be uniform throughout the state. But all laws which the legislature would be required to enact would not be of a general nature. Peculiar local conditions would call for the enactment of special laws to meet these conditions; hence the second clause of this section, "and in all cases where a general law can be made applicable, no special law shall be enacted"; that is, in providing for special cases, it is the duty of the legislature to make such provision by general law so far as it is possible so to do, but in cases where a general law is not found to be applicable, a special law may be enacted. The question whether in providing for special cases a general or a special law is best adapted is one for the legislature. This, and this only, is the discretion confided to it. If the nature of the law is general, which is a question for the courts, the law in its form and operation must be general. If the nature of the law is special, its form and operation may be either general or special, as the legislature may decide. This interpretation we think to be clearly required by all of the terms of this section. While it may not be in conformity with some assumptions in a few cases decided by this court, we think it not against any, and that it it consonant with most of them.

This section was first considered in State of Kansas, ex rel Johnson, v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503. In that case the question under advisement was whether...