State v. Deming

• Decision Date: 10 June 1916
• Docket Number: 20,636
• Citation: 158 P. 34,98 Kan. 420
• Parties: THE STATE OF KANSAS, ex rel. HERBERT E. RAMSEY, as County Attorney, etc., Appellant, v. C. E. DEMING, Appellee
• Court: Kansas Supreme Court

158 P. 34

98 Kan. 420

THE STATE OF KANSAS, ex rel. HERBERT E. RAMSEY, as County Attorney, etc., Appellant, v. C. E. DEMING, Appellee

No. 20,636

Supreme Court of Kansas

June 10, 1916

Decided, January, 1916.

Appeal from Reno district court; FRANK F. PRIGG, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTE--Establishing City Courts in Certain Counties--"Special Act." Chapter 196 of the Laws of 1915, although couched in terms of a general enactment, makes so restricted a classification of the counties in which it is to be effective that it is in fact a special act.

2. SAME--Special Legislation. Chapter 196 of the Laws of 1915, which attempts to establish courts in counties of 55,000 population or less, having cities of 16,000 population or more, but exempting from the control of such courts all cities of less than 16,000 inhabitants in such counties, and providing that only after a vote of the people shall the act be operative in such counties as would fall within such class if they comprise a separate judicial district, is special legislation under the test of section 17 of article 2 of the state constitution.

3. SAME--City Courts--Classification of Counties--Statute Unconstitutional. An act of the legislature which attempts a classification of counties which is capricious, illogical and unreasonable is essentially special and not general in its nature, and can not be upheld under the scrutiny of the constitutional amendment of 1906. (Const., art. 2, § 17.)

4. CITY COURTS--Chapter 196 of the Laws of 1915--Unconstitutional. Chapter 196 of the Laws of 1915, which prescribes a different rule from that of the general law for the administration of justice as to service of process, procedure, the law of garnishment, the giving of bonds in garnishment and on appeals, violates the uniformity clause of the state constitution. (Const., art. 2, § 17.)

H. E. Ramsey, county attorney, W. H. Lewis, and C. M. Williams, both of Hutchinson, for the appellant.

F. Dumont Smith, W. G. Fairchild, and Warren H. White, all of Hutchinson, for the appellee; Walter F. Jones, of Hutchinson, of counsel.

OPINION

DAWSON, J.

The state of Kansas, through one of its lawfully authorized officers, brought this action in quo warranto, to challenge the authority of the defendant to exercise the powers of a civil magistrate in Reno county under the official title of "judge of the city court of Hutchinson."

A demurrer to the plaintiff's petition was sustained. Hence this appeal.

Counsel for the state insist that the statute (Laws 1915, ch. 196) under which the defendant justifies his assumption of judicial powers is unconstitutional, and that the act offends particularly against sections 16 and 17 of article 2 of the state constitution. These provisions of our fundamental law provide:

"SEC. 16. No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.

"SEC. 17. 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; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of this state."

The title to the act reads:

"An act relating to cities of the first class not now having a city court creating city courts therein, defining the jurisdiction thereof, providing officers therefor, defining their powers and duties, limiting the jurisdiction of the justice of the peace of said cities and making the judge thereof ex-officio police judge of the city in which said court is located, amending section 952 of the General Statutes of 1909, and section 1 of chapter 96 of the Laws of 1911, and repealing said original sections."

It may not be necessary to determine this lawsuit on the question of the sufficiency of the title to the act, but as plaintiff's objections thereto give some outline of the nature of the act, we will incorporate them here:

"First--The title of the act is deceptive; it purports to establish a city court, in all cities of the first class, not having a city court; when in fact the act provides for the establishment of city courts in cities of the first class, in counties having a population of 55,000 and less.

"Second--The title of the act is deceptive in that it purports to establish city courts, when the act in fact establishes county courts. The incumbent can be elected from any point in the county and is elected by the electors of the county, and is paid by the county. It is not a city court, but a county court; his jurisdiction is coextensive with the county.

"Third--The jurisdiction of the justices of the peace in cities of the first class, embraced in the act is diminished to $ 1, while the jurisdiction of other justices of the peace within the county remains the same; this is a discrimination against justices of the peace in such cities in favor of justices of the peace in the county in which such city is located.

"Fourth--The title of the act contains two distinct subjects: the creation of courts in cities of the first class not now having a city court, and the amendment of section 952 of the General Statutes of 1909, and section 1, chapter 96 of the Laws of 1911, and repealing the original sections. The amending of section 952 of the General Statutes of 1909 and repealing the original section is a distinct and separate subject from creating courts in cities of the first class, and is in no way connected with the subject of a city court in cities of the first class."

The act provides that in each city of the first class in counties of 55,000 population or less, in which there is not already a city court, a city court is established; but the act is not to apply to any city of less than 16,000 population, nor in any county which is a separate judicial district unless adopted by a vote of the people at an election called by the board of county commissioners upon a petition of ten per cent of the county electors.

Some of the principal details of the act relate to this new court's jurisdiction and to the scope of its powers over various kinds of litigation. It provides a form of process and procedure peculiar to itself and differing in some important details from the established procedure in other inferior courts of the state. It also makes some important changes in substantive law effective in the counties which fall under its operation. No bond is required from the plaintiff in garnishment proceedings. An individual garnishee must answer in five days, but a corporation garnishee may have ten days to answer. Special provision is made for subjecting a debtor's assets to garnishment proceedings considerably different from that which prevails elsewhere throughout the state. In one place (§ 7) the act says that process shall be issued to the sheriff, chief of police or any constable; elsewhere, in sections 13 and 14, the process is to be directed to the sheriff or constable. Process may also be served by plaintiff personally or by registered mail. No costs shall be taxed which might have been avoided "by making service according to provisions of this act." (§ 23.)

On demand for a jury trial the plaintiff must deposit one dollar for each juror required, instead of fifty cents, as required in the district court. (Gen. Stat. 1909, § 3692; The State v. Hoover, 78 Kan. 863, 98 P. 276.)

Judgments may be opened at any time within ten days after the levy of an execution.

No bond for appeal to the district court is required unless ordered by the district judge.

In all cities controlled by this act the judge of this court shall be ex officio the city police judge.

Certain election laws and other statutes are amended to conform to the general plan of this act. In doing so, however, we note that the act changes the qualifications of the officers of all city courts (§ 5) in Topeka, Wichita, Atchison, Coffeyville, Kansas City and elsewhere where city courts were established by special acts prior to the constitutional amendment of 1906. Hereafter such officers need only be residents of the county--not necessarily residents of their respective cities as heretofore. Some independent statutes thus affected are: Laws 1897, ch. 107, § 4, creating the city courts of Kansas City; Laws 1899, ch. 125, § 5, creating the city court of Atchison; Laws 1899, ch. 126, § 3a, creating the city court of Coffeyville; Laws 1899, ch. 128, § 5, creating the city court of Leavenworth; Laws 1899, ch. 129, § 4, creating the city court of Topeka; Laws 1899, ch. 130, § 5, creating the city court of Wichita.

It need hardly be said that courts approach the consideration of questions challenging the constitutionality of statutes very much predisposed to sustain the enactments. And where the alleged defect in an act lies only in the fact that it is special and not general, the courts heretofore have commonly left the responsibility for such acts with the legislature whose membership is as solemnly bound to observe the provisions of the constitution as are the justices and judges of the commonwealth. With the adoption of the constitutional amendment of 1906, however, an added duty was imposed upon the judiciary--the duty of determining whether an act of the legislature is repugnant to the provisions of section 17 of article 2. It will be observed that the constitutional provision does not absolutely forbid special legislation. It provides that all laws of a general nature shall have uniform operation throughout the...