State v. Gaitskill

• Decision Date: 18 June 1931
• Docket Number: 30,225
• Citation: 133 Kan. 389,300 P. 326
• Parties: THE STATE OF KANSAS, ex rel. ROLAND BOYNTON, Attorney-general, Plaintiff, v. JO E. GAITSKILL, Defendant
• Court: Kansas Supreme Court

300 P. 326

133 Kan. 389

THE STATE OF KANSAS, ex rel. ROLAND BOYNTON, Attorney-general, Plaintiff, v. JO E. GAITSKILL, Defendant

No. 30,225

Supreme Court of Kansas

June 18, 1931

Decided July, 1931.

Original proceeding in quo warranto.

Petition sustained and judgment rendered.

SYLLABUS

SYLLABUS BY THE COURT.

STATUTES--Construction--Certainty and Definiteness. Chapter 170 of the Laws of 1931 is considered and held to be so conflicting in its provisions and so incomplete, vague and indefinite as to be inoperative and void.

Roland Boynton, attorney-general, and Walter T. Griffin, assistant attorney-general, for the plaintiff.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove, all of Topeka, C. S. Dennison, of Pittsburg, and George F. Beezley, of Girard, for the defendant.

OPINION

HARVEY, J.:

This is an original proceeding in quo warranto, brought in the name of the state on the relation of the attorney-general, questioning the right of defendant to hold the office of judge of the district court, division number two, of Crawford county (judicial district number thirty-eight), and asking that it be adjudged that he have no right or authority to exercise the functions, powers or duties of that office, or to draw or receive the salary therefor, and that he be ousted and excluded from that office and the rights, privileges and emoluments thereof. The petition alleges that at the general election in November, 1930, defendant was elected to the office in question, which office had theretofore been duly established and organized under the provisions of our statute (Laws 1911, ch. 151, as amended by Laws 1925, ch. 149); that he thereafter qualified for such office, and on or about January 12, 1931, entered upon the duties of the office and lawfully held the same, exercising the powers, functions and privileges thereof, until March 12, 1931; that chapter 170 of the Laws of 1931 was duly published and went into effect March 12, 1931, a copy of which statute is attached to the petition (and is printed as an appendix to this opinion); that in April, 1930, Crawford county dropped below 60,000 inhabitants and to 49,329 inhabitants, according to the United States census, and at all times since has been below 60,000 inhabitants, and that notwithstanding the abolition of division number two of the court, and the right of the Hon. L. M. Resler, the present incumbent of the office of judge of the district court of that county, and formerly judge of division number one of the court, exclusively to hold the office of judge of the court since March 12, 1931, and to exercise and enjoy all the powers, duties and emoluments thereof, the defendant, since March 12, 1931, continues to claim to hold the office of division number two of the court and to exercise the rights, powers and duties thereof.

Defendant has demurred to the petition. The parties have stipulated, as though alleged in the petition, that the population of Crawford county for the year 1930, as shown by the returns of the assessors of the county, is 52,073.

Our constitution provides two methods for removing district judges from office: (1) By impeachment (art. 2, §§ 27 and 28), or (2) by resolution of both houses if two-thirds of the members of each house concur (art. 3, § 15). It provides that their compensation shall not be increased, and they shall receive no fees or perquisites, or hold any other office of profit or trust under the authority of the state, or of the United States, during their terms of office for which they were elected, or practice law in any of the courts of the state during their continuance in office. It provides (art. 3, § 5) for dividing the state into five judicial districts, in each of which there shall be elected a district judge who shall hold his office for a term of four years, and (art. 3, § 14) that the legislature may increase the number of judicial districts, and that such districts shall be bounded by county lines. More than one judge to a judicial district was not prohibited by these sections (State v. Hutchings, 79 Kan. 191, 98 P. 797), and where the business is such as to necessitate it the legislature may provide for more than one judge in a judicial district. When that is done the positions of the judges in the judicial district are referred to as divisions of the court, for the purpose of identification, and the judge of each of the divisions is judge of the district court, elected for the same term, draws the same pay, and has the same powers and duties as other district judges.

In conformity with these constitutional provisions the legislature of 1911 (Laws 1911, ch. 151) provided:

"That in all counties of this state which now contain or may hereafter acquire a population of not less than 60,000 nor more than 100,000 according to United States census each division of the district court of such counties shall consist of two divisions to be known as division No. 1 and division No. 2."

The act was comprehensive in its scope and provided for the appointment of a judge for division number two, for the transfer of a part of the business of the court to that division, for the organization of such division, and for the judge thereof to have all the powers, duties and emoluments of the office of judge of the district court. In 1925 section 1 of this act was amended (Laws 1925, ch. 149) so as to read:

"That from and after the passage and taking effect of this act, in every county in this state which now has, or which shall hereafter acquire, a population of not less than sixty thousand and not more than seventy-five thousand, as shown by the returns of the county assessor in said county, there shall be two judges of the district court and two divisions of such court, which shall be known as division number one and division number two. If in any such county at the time of the taking effect of this act there shall be one or more judges, they shall hold their offices until the expiration of the terms for which they have been elected, and shall preside over their respective divisions as then constituted until their successor or successors shall have been elected and qualified in the manner provided by law for the election of district judges. In counties coming under the provisions of this section where there is one judge, the governor shall appoint the additional judge required by this act, who shall hold office until the next general election and until the successor of such judge shall have been elected and qualified, and thereafter the terms of office of the two judges of said court shall be the same as now provided by law for judges of district courts in this state."

In 1931 the legislature passed the act in question (Laws 1931, ch. 170). It reenacted all the provisions of the 1925 act and added thereto the following:

"Provided, That should any such county drop below 60,000 inhabitants according to the United States census, providing [division] number two should be automatically abolished and division number one shall again be the entire district court of said county."

It is contended on behalf of plaintiff that the addition made to the statute in 1931 automatically abolished division number two of the district court of Crawford county, and immediately, upon the publication of the act in the official state paper, deprived defendant of the office of judge of the district court of Crawford county and rendered it impossible for him to perform any of the duties of the office, or to draw any salary.

It is contended on behalf of defendant that the act of 1931 is so vague, ambiguous and uncertain that it is inoperative and void, and therefore cannot accomplish that purpose. We have concluded that this point is well taken. It will not be necessary, therefore, to discuss other questions argued by counsel.

The statute as enacted in 1911, and as amended in 1925, was for the creation of divisions of the district court in certain counties where such divisions were deemed necessary. They contain no provisions for doing away with or abolishing divisions of the court which had once been created. The 1931 act is the first one of those attempting to abolish or do away with a division of the district court where one had been created under the prior act. An examination of the 1931 act convinces us that the addition of the short proviso to the provisions of section one of the act of 1925 is inadequate to accomplish that purpose. The act provides, in the first place, for the establishment of a second division of the district court in each county in the state which has or shall hereafter acquire a population of not less than 60,000 "as shown by the returns of the county assessor in said county." The proviso relates to what shall be done when "any such county drop below 60,000 inhabitants according to the United States census." The population of a county or city shown by the returns of the county assessor may differ largely from such population as shown by the United States census. That is a matter of common knowledge of which the court may take judicial notice. In this case it was alleged that the population of Crawford county for the year 1930, as shown by the county assessor's enumeration, was 52,073, while that shown by the United States census was 49,329. Now if 50,000 were the dividing line for the establishment or discontinuance of a division of the court instead of 60,000 we would have the second division of the court created under the first part of the act of 1931, while it would be automatically abolished under the proviso. But since this statute would neither affect nor change the actual number of inhabitants, nor the enumeration thereof by the county assessor or by the United States census, if the statute were...