City of Fort Scott v. Slater ( 1903 )

The opinion of the' court was delivered by

Johnston, O. J.:

This was an action by R. Slater to recover from the city of Fort Scott the sum of $1850, alleged to be due to him as salary during his incumbency of the office of police judge. He was the police judge, and had been receiving $50 per month as salary until the passage of the act creating a city court in Fort Scott. (Laws 1899, ch. 127.) This act conferred on the new city court jurisdiction to hear and determine all offenses against the ordinances of the city, and it is claimed by the city that it operated to abolish the office of police judge, and hence the mayor and council refused to appropriate any salary for him. Slater, assuming to be the police judge of the city, held possession of the books and papers belonging to the office, and also held himself in readiness to perform the duties of the place for a number of months, when he accepted other employment which caused him to be absent from the city the greater part of the time. In March, 1901, the legislature repealed the act creating the city court and Slater resumed the performance of the duties of police judge, and was so recognized by the city until his successor was regularly chosen. The trial court held that the office was not abolished by tíie act creating the city court and gave judgment against the city for the amount of the salary up to the time that Slater accepted other employment, viz., $316.

The first question is, Did chapter 127 of the Laws of 1899 abolish the office of police judge? No reference whatever is made in the act to that officer, nor to the acts defining his power and duties. A police judge is an officer of a city of the first class whose powers and duties are provided by a general statute applicable alike to all cities of that class. We cannot assume it to have been the intention of the legislature to discontinue an office so established, nor to deprive an officer of his functions, unless there is a clear provision of statute indicating such intent. The greater part of the jurisdiction formerly exercised by the police judge of Fort Scott was conferred upon another tribunal, but the legislature did not deprive or undertake to deprive him of all the powers vested in him. While it took from him the jurisdiction to hear and determine offenses against the ordinances of the city, he still had power as police judge to perform the marriage ceremony, to administer oaths, to require laws for the preservation of the public peace to be kept, and to that end to require persons to give security to keep the peace within the limits of the city, to issue warrants for the arrest of persons charged with the commission of criminal offenses, and to hold preliminary examinations. Since these' and possibly other powers remained with him, it can hardly be said that the legislature contemplated the discontinuance of an office of which no mention was made in the act.

It was specifically held in In re Hagan, 65 Kan. 857, 68 Pac. 1104, that the act creating the city court of Fort Scott did not repeal the general law providing for a police judge in cities of the first class, nor abolish that office; that during the existence of the act creating the city court the general statute was operative in. the city of Fort Scott, except as to the jurisdiction which had been taken from the police judge and conferred on the city court, and that when that act was repealed full jurisdiction was restored to the police judge the same as it existed in other cities.

The right to the emoluments of an office is an incident, and follows the title to the office ; and as Slater was the police judge he had a right to the prescribed salary, regardless of the extent of his services. The city council could not withhold the whole or any part of his compensation because he had not performed the duties and services required of him when he was first chosen, nor because such services were performed by another. It is clear that he was entitled at least to the amount awarded by the trial court, and therefore its judgment will be affirmed.

All the Justices concurring.