State ex rel. Edgerly v. Brown , 35 Kan. 167 ( 1886 )

The opinion of the court was delivered by

Horton, C. J.:

This is an action in the nature of quo warranto, brought by the plaintiff to remove the defendant from the office of probate judge of Coffey county, in this state, because of an alleged failure to perform the duties imposed by §3, chapter 8, Special Session Laws of 1874. This section reads as follows:

“It shall be the duty of the probate judge in each county, once during each quarter of each year, without' notice to said county treasurer, to examine and count the funds in the hands of the county treasurer; and the county commissioners of each county shall, prior to each examination, appoint two persons, citizens and tax-payers of the county, whose duty it shall be to assist the probate judge in making the examination aforesaid; but no person so appointed shall act as examiner more than once in the same year.” (Comp. Laws of 1879, ch. 25, § 7 5c.) '

It has already been decided'that the legislature may confer new duties—judicial, quasi judicial, or ministerial — upon probate courts or probate judges in this state, aside from the ordinary powers authorized by the constitution. (In re Johnson, 12 Kas. 102; Young v. Ledrick, 14 id. 92; The State, ex rel., v. Majors, 16 id. 440; Intoxicating-Liquor Cases, 25 id. 751.) Whether they could be compelled to perform the duties which the various acts of the legislature undertake to require of them, outside of the jurisdiction defined by the constitution, has never been settled by this court. The decisions recognizing the authority of the legislature to confer upon probate courts .and probate judges additional powers or duties not defined by the constitution, seem to assume that the authority thus exercised constitutes powers and duties distinct from those of a probate court or probate judge. Thus, in granting injunctions for the district court, a probate judge acts in the capacity of a commissioner of that court; a probate judge in granting a druggists’ permit, acts somewhat as a commissioner of licenses or permits. (In re Johnson, supra; Intoxicating-Liquor Cases, supra; State v. Laughton, [S. C. of Nev.] 8 Pac. Rep. 344. See also the decisions of Benson, J., and Spilman, J., upon the power to appoint a county auditor, 2 Kas. Law Jour. 39-57.) To require of a probate .judge the performance, of the duties imposed by said chapter 8, none of which pertain to the judicial office, and for the performance of which the judge must leave his court room and enter an office separate from his own and there perform purely ministerial acts for several days in each year, is in the nature of attempting to put upon- him the duties of another' office, although in the discharge of such new duties he still may be styled a probate judge. In the performance of such duties he is not acting as a judge or as a court. Therefore we cannot say in this proceeding that the defendant’s right to hold the office of probate judge.and enjoy the powers and emoluments thereof, depends upon a faithful discharge -of the duties imposed by the statute above cited. If the defendant has failed or neglected to do something which said statute requires, he may, perhaps, be removed from such new office or position; but because he does not comply with that statute, he has not forfeited his office as probate judge* and• therefore cannot be-removed therefrom under the allegations of'the petition.

The State, ex rel. the Atty. Gen., v. The Judges of the Court of Common Pleas, 21 Ohio St. 1, to which we are referred, is npt in accordance with the prior adjudications of this court.

The demurrer will therefore be sustained.

- All the Justices concurring.