State v. Anderson

• Decision Date: 26 July 1923
• Docket Number: 25,069
• Citation: 114 Kan. 297,217 P. 327
• Parties: THE STATE OF KANSAS, ex rel. JUSTICE N. BAIRD, as County Attorney of Wyandotte County, Plaintiff, v. BERNADOTTE ANDERSON, Defendant
• Court: Kansas Supreme Court

217 P. 327

114 Kan. 297

THE STATE OF KANSAS, ex rel. JUSTICE N. BAIRD, as County Attorney of Wyandotte County, Plaintiff, v. BERNADOTTE ANDERSON, Defendant

No. 25,069

Supreme Court of Kansas

July 26, 1923

Decided July, 1923.

Original proceeding in quo warranto.

Judgment performed.

SYLLABUS

SYLLABUS BY THE COURT.

JURISDICTION--Probate Judge Pro Tem Has Authority to Solemnize Marriages. The probate judge pro tem., in the absence, disqualification or inability of the probate judge to act, is a substitute judge for the probate judge, for the time being, temporarily, provisionally and as such officer, and under such circumstances, has the authority to solemnize marriages.

Charles B. Griffith, attorney-general, and Dennis Madden, assistant attorney-general, for the defendant.

Justus N. Baird, county attorney, and Judson S. West, of Kansas City, of counsel for the plaintiff.

OPINION

HOPKINS, J.:

This is an original action in quo warranto to oust the defendant, who is probate judge pro tem. of Wyandotte county, from solemnizing marriages. The plaintiff states that the defendant has solemnized hundreds of marriages and denies his authority so to do.

It is proper to first give consideration to the power and duties of the probate court and the judge thereof.

Section 1, of article III of the constitution reads as follows:

"The judicial power of this state shall be vested 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; and all courts of record shall have a seal, to be used in the authentication of all process."

Section 8, of article III is as follows:

"There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law and shall have jurisdiction in cases of habeas corpus. The court shall consist of one judge, who shall be elected by the qualified voters of the county, and hold his office two years. He shall hold court at such times and receive for compensation such fees or salary as may be prescribed by law. The legislature may provide for the appointment or selection of a probate judge pro tem. when the probate judge is unavoidably absent or otherwise unable or disqualified to sit in any case."

Section 3055 of the General Statutes of 1915 reads as follows:

"The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: First, to take the proof of last wills and testaments, and admit them to probate, and to admit to record authenticated copies of last wills and testaments executed, proved and admitted to probate in the courts of any other state, territory or country; second, to grant and revoke letters testamentary and of administration; third, to direct and control the official acts of executors and administrators, settle their accounts and order the distribution of estates; fourth, to appoint and remove guardians for minors, persons of unsound mind, and habitual drunkards, and make all necessary orders relating to their estates, to direct and control their official acts, and to settle their accounts; fifth, to bind apprentices, and exercise such control and make such orders respecting them and their masters as the law prescribes; sixth, to hear and determine cases of habeas corpus; seventh, to have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons."

Section 2724 of the General Statutes of 1915 provides for the election of a probate judge for a term of two years, and requires him to execute bond for the faithful performance of his duties; section 2725, that he shall be his own clerk, shall keep a record of all business done which record shall be open to the inspection of all persons without charge; section 3056, that each probate court shall have a seal with which all process shall be authenticated; section 3057, that each probate court shall hold regular terms; section 3058, that the probate judge may, in vacation, perform all acts that are authorized to be performed in term time except the making of annual or final settlements of executors, etc.; section 3059, that all writs, orders and other process of the probate court shall be issued and directed to the sheriff of the proper county where such process is to be served, etc.; section 3060, that the several probate courts shall be formally opened at the commencement of each regular term; section 3061, that the probate court shall have jurisdiction over trusts created by deeds of trust, declaration of trusts, wills, etc.; section 3065 as amended by chapter 154, of the Laws of 1917, that the probate judge shall be the judge of the juvenile court; section 4485, et seq., that, upon the decease of any inhabitant of this state, letters of administration shall be granted by the probate court.

In addition to the foregoing, the law provides that any parent may, with the approval of the probate judge, relinquish all right to his or her minor child or children to any person desiring to adopt such child or children; that the application for adoption shall be made to the probate court, whereupon that court shall investigate and may permit or refuse to permit such adoption; (Gen. Stat. 1915, §§ 6361, 6362) that the probate court has supervision and control over neglected and dependent children; (Gen. Stat. 1915, § 6373 et seq.) that the probate court may commit boys, under certain circumstances, to the state reform school and girls to the state industrial school for girls; (Gen. Stat. 1915, § 10082 et seq. and § 10109 et seq. as amended by chapter 303 of the Laws of 1917) that the probate court may supervise and approve the binding of children in apprenticeship. (Gen. Stat. 1915, § 384 et seq.) Section 4721 requires the probate judge to keep a fee book in which shall be recorded an accurate account of all fees charged and collected by him and that quarterly statements shall be made to the county commissioners. He is required, on order of the board of county commissioners, to examine and count the funds in the hands of the county treasurer and make such other examination of his books as may be proper. (Gen. Stat. 1915, § 2780.) The probate judge has jurisdiction in proceedings in aid of execution. (Gen. Stat. 1915, § 7426 et seq.) He has supervision, and is required in certain cases, to enter (of record) townsites and convey the property therein to the occupants and inhabitants according to their respective interests. (Gen. Stat. 1915, § 11506 et seq.) He is required to certify to the several township trustees a written list of every administrator, executor, executrix and guardian legally in charge and control of any estate in the probate court. (Gen. Stat. 1915, § 11167.) Under certain circumstances he has control of private burying grounds. (Gen. Stat. 1915, § 2268.) In certain cities application for enlarging cemeteries shall be filed with the probate judge and proceedings had under his supervision. (Gen. Stat. 1915, § 2278.) Under certain circumstances the probate judge shall be the judge of the county court. (Laws 1923, ch. 131.)

The numerous and varied responsibilities devolving upon the probate court or the judge thereof require a person of ability and integrity for the administration of that office.

The probate judge has more duties to perform under the marriage laws of this state than any other official. The marriage act provides that marriage shall be considered in law as a civil contract. It provides that the probate judge shall issue marriage licenses; prescribes a penalty against any person who shall join others in marriage before a license has been issued by the probate judge; provides for forms of marriage licenses to be furnished to the probate judge; that the probate judge shall collect a registration fee from the applicant for a license; that every person who shall perform a marriage ceremony shall return the license to the probate judge with required indorsements thereon; that the probate judge shall enter it on the marriage record, transmit it to the state registrar and remit a registration fee; that the state registrar shall index all records and keep an account of all fees received from probate judges; that any probate judge or other person authorized by law to perform the marriage ceremony who shall fail to comply with any of the provisions of the act shall be guilty of a misdemeanor; that the probate judge shall keep a correct copy of all marriage licenses issued by him in a book provided for that purpose; that if any probate judge shall refuse or neglect to issue any marriage license to any person legally entitled thereto or neglect to record a copy of such license he shall be deemed guilty of a misdemeanor; that before granting a marriage license the probate judge shall require the applicant to take and subscribe to an oath as to certain facts in connection with such license; that the probate judge may, in his discretion, examine witnesses concerning such matters; that the books of record of marriage licenses kept by probate judges and copies of entries therein, certified by the probate judge under his official seal, shall be evidence in all courts; that every judge, justice of the peace or licensed preacher of the gospel may perform the marriage ceremony.

It is the contention of the plaintiff that the probate judge pro tem. is a deputy only. He argues as follows "The full charter and limits of the power of such officer is found in section 3064, a judge pro tem. . . . shall have the same power and authority as the...