Sartin v. Snell

• Decision Date: 08 June 1912
• Docket Number: 18,085
• Parties: U. S. SARTIN, Plaintiff, v. W. D. SNELL, Defendant
• Court: Kansas Supreme Court

125 P. 47

87 Kan. 485

U. S. SARTIN, Plaintiff, v. W. D. SNELL, Defendant

No. 18,085

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Original proceeding in quo warranto.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTE--Authorizing Appointment of County Auditor--Valid. Article 13 of chapter 25 of the General Statutes of 1909 (Gen. Stat. 1909, §§ 2282-2299) creating the office of county auditor in certain counties and conferring upon the district court the power of appointing a suitable person to such office is a valid exercise of legislative authority.

2. THE TERMS--"Court," "Judge"--"District Court," "District Judge," construed. The legislature often uses the words "court" and "judge," "district court" and "district judge," without discrimination. "Court" will be construed to mean "judge" and "judge" will be construed to mean "court" wherever either construction is necessary to carry into effect the obvious intent of the legislature. It is held, therefore, that by the words "district court," as used in section 1 of the act in question (Gen. Stat. 1909, § 2282) the legislature meant to confer upon the judge of the district court in certain counties authority to appoint a county auditor.

3. COUNTY AUDITOR--Confirmation by County Commissioners. Under the statute as amended by section 1 of chapter 67 of the Laws of 1876, and subsequent amendments thereto, confirmation by the board of county commissioners of the appointment of a county auditor is not necessary.

4. COUNTY AUDITOR--Appointment--Judges of District Court. Where the district court consists of two or more divisions the appointment of a county auditor, in order to be valid, must be made by the judges of the divisions, or a majority thereof, acting jointly.

James F. Getty, and Nathan Cree, for the plaintiff.

L. W. Keplinger, and C. W. Trickett, for the defendant.

OPINION

PORTER, J.:

This is a proceeding in quo warranto in which the plaintiff seeks to oust the defendant from the office of county auditor of Wyandotte county. The cause has been submitted upon plaintiff's motion for judgment on the pleadings. The facts as shown by the petition and answer are that on the 20th day of November, 1911, the defendant was appointed to the office of county auditor by Hon. E. L. Fischer, judge of the first division of the district court of Wyandotte county, and filed his oath and bond and claims the right to the office under such appointment. The plaintiff was appointed to the same office on February 8, 1912, by the Hon. E. L. Fischer, judge of the first division, and the Hon. F. D. Hutchings, judge of the second division of the district court, acting jointly. The plaintiff, after taking the oath of office and after the approval of his bond, demanded of the defendant the office and the books and documents pertaining thereto. The defendant refuses the demand, and in his answer contends that his appointment having been made by the district court and confirmed by the board of county commissioners, he is entitled to hold the office; that there is no authority in law for either a judge of the district court or the judges of the divisions thereof to make the appointment, and further, that the plaintiff's alleged appointment to the office has never been confirmed by the board of county commissioners, and that without such confirmation his appointment is invalid. He further contends that he has been employed by the board of county commissioners to perform services of auditing bills and accounts against the board, and in this connection he questions the constitutionality of the statute creating the office and providing for the appointment of a county auditor by the district court. His main contention, however, is that the statute creating the office and providing for the method of filling it expressly confers the power of appointment upon the district court and not upon a judge or judges of the court. The act creating the divisions of the district court in counties having a population of one hundred thousand inhabitants contains a provision that all power of appointment formerly delegated by law to the judge of the district court shall be exercised jointly by the judges of the divisions. The defendant claims that this provision does not apply to the appointment of a county auditor, for the reason that such power was never delegated to a district judge but was conferred only upon the district court.

The first question to be considered is whether the act conflicts with the constitution. If it be found invalid, that disposes of the case and renders unnecessary the determination of the other questions. It is assailed on the ground that the legislature has no power to delegate to or impose upon the courts the authority to appoint an auditor. It is conceded that courts may be given authority to appoint such officers as are necessary to the existence of a court, as a clerk or reporter or bailiff, or an officer necessary to enable the court to transact business, such as a prosecuting attorney. But it is contended that as the duties performed by a county auditor have no connection with the functions of the district court, the legislature can not, without mingling the powers of the different branches of government, impose upon the court the authority to appoint such an officer. The law creating the office of county auditor and authorizing the district court to appoint auditors in certain classes of counties has been in existence since 1872, and a serious burden rests upon him who, at this late day, seeks to establish its invalidity. In 1872 the legislature passed an act creating the office of county auditor in all counties containing over thirty thousand inhabitants. (Laws 1872, ch. 67.) Section 1 required that the auditor be appointed by the district court and confirmed by the board of county commissioners. In 1874 this section was amended (Laws 1874, ch. 56, § 1) so as to provide that the auditor be appointed by the district court "in conjunction with the probate court and county attorney of such county, and confirmed by the board of county commissioners." The legislature of 1876 passed two acts amending section 1. The first changed the whole plan of appointment and provided that in all counties having over twenty-five thousand inhabitants a county auditor should be appointed "by the probate court of the judicial district" in which the county was embraced. (Laws 1876, ch. 66, § 1.) There was evidently a mistake in the description of the court, and at the same session this chapter was repealed and chapter 67 enacted, by which the power of appointment was placed upon the "district court," nothing being said as to confirmation by the county board. Section 1 of the act has been amended at various times since 1876, and the classification of counties to which the act applies changed, as in chapter 87 of the Laws of 1891, which makes the act apply to counties having over forty-five thousand inhabitants, but the language of the section remains the same and directs the appointment by the district court and no longer requires confirmation by the county board. During all the time the law has been in operation, county auditors have been appointed in the counties embraced in the class defined by the various acts, except, we believe, in two instances. Mr. Justice Benson, when judge of the fourth judicial district, refused to appoint an auditor for Douglas county, and Judge Spilman, of the twenty-first district, refused to appoint one for Osage county, the judge, in each instance, holding that the duty is one which the legislature lacked the power to compel a court or judge thereof to perform.

A strong argument can be adduced against the fitness and propriety of making the courts the dispensers of public patronage, which, in the language of Judge Spilman, in the opinion In the Matter of the Appointment of a County Auditor for Osage County, reported in The Kansas Law Journal (vol. 2, p. 57), "does violence to all our ideas of judicial propriety, and confers a power upon the courts which must always prove embarrassing, and even if wisely exercised must inevitably tend to lessen the respect felt by the people for the purity and dignity of the judiciary." (p. 58.)

However we may disagree with the legislature as to the propriety of the law, we must, if possible, uphold its validity. The fact that it has remained upon the statute books for forty years, receiving from time to time further legislative consideration and sanction, adds to the requirement that urgent reasons be found before it shall be declared unconstitutional. The mere fact that a judge of the district court could not be compelled to comply with its provisions, or be held to have forfeited his office by a failure or refusal to obey the statute, is of no importance in determining whether or not the statute is a valid exercise of legislative authority. In The State, ex rel., v. Brown, Probate Judge, 35 Kan. 167, 10 P. 594, which was an action in quo warranto to forfeit the right of Brown to exercise the office of probate judge of Coffey county because of an alleged failure to perform certain duties imposed by section 3 of chapter 8 of Special Session Laws of 1874, requiring the probate judge once in each quarter to examine and count the funds in the hands of the county treasurer, it was held that in the performance of the duty of examining the accounts of the county treasurer the probate judge is not acting either as a judge or as a court, and that his failure to comply with the statute imposing such new duty furnished no ground of forfeiture of his office as probate judge.

In The State v. Durein, 70 Kan. 13, 80 P. 987 involving the provisions of the statute imposing upon the probate judge authority to grant permits for...