State ex rel. Jackson v. Hutchings , 79 Kan. 191 ( 1908 )

The opinion of the court was delivered by

Smith, J.:

The only question presented is whether chapter 52 of the Laws of 1908 is in violation of the inhibition against special legislation contained in section 17 of article 2 of the constitution of Kansas as amended in 1906. The section as amended reads, the amendment being italicized:

“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 the state.” (See Laws 1905, ch. 548, § 1.)

It is contended by the plaintiff that chapter 52 of the Laws-of 1908 is a special law within the meaning of the amendment. Also, that- the title and first section of the act characterize it as such. They read:

“An act to create the circuit court of Wyandotte county, to define the powers and jurisdiction of such court and of the judge thereof, to provide for the holding of the terms of such court, and for the transfer from the district court and court of common pleas of Wyandotte county of certain actions to said circuit court and from the circuit court to the district court and the court of common pleas, and for the appointment and election of a judge and clerk therefor.

Be it enacted by the Legislature of the State of Kansas:

“Section 1. That a new court of record be and such court is hereby created and established for the county of Wyandotte, to be called the circuit court of Wyandotte. county. Said court shall have one presiding judge, whose style of office shall be ‘judge of the circuit court’; and said court shall have a clerk, whose style of office shall be ‘clerk of the circuit court.’ ”

The defendant, on the other hand, contends that the act is not a special law, but is a general law, or, if it is a special law, that the facts alleged in the answer, being admitted by the motion for judgment on the pleadings, are sufficient to prove that a general law could not be made applicable and meet the public requirement and necessity for additional court facilities in Wyandotte county; that because the court is, by the terms of the act, located in Wyandotte county it does not follow that the provision is for the benefit of that county alone, but that it is for the benefit of'every citizen of the state, and even of non-residents of the state who may have business in the courts of that county-—-in short, that it is as much for the common benefit of citizens of the state as is the district court of any one of the other counties of the state. It is also contended that, as section 14 of article 3 of the constitution requires that judicial districts shall be bounded by county lines, the territory could not be -decreased, as the county of Wyandotte, now and at the time of the passage of the act, alone constituted a judicial district; that the district court, although relieved in part by the court of common pleas, was unable to dispose of the mass of business that came to it; that the legislature was fairly if not expressly authorized by section 1 of article 3 of the constitution to create such other courts, inferior to the supreme court, as should be necessary to transact the business. A portion of section 1 of article 3 reads:

“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.”

In reply to the question whether or not the act is a special law the plaintiff refers to The State v. Nation, 78 Kan. 394, 96 Pac. 659, in which this court held that an act creating a court in the city of Chanute, Neosho county, defining the jurisdiction thereof, and providing officers therefor, etc., was within the inhibition of section 17 of article 2 of the constitution as amended. That case in turn cites Anderson v. Cloud Co., 77 Kan. 721, 95 Pac. 583. Those cases are instructive, but neither is to any considerable extent parallel to this.

The plaintiff also cites, as evidence that other cities and counties of the state need or have needed remedial legislation of the character attempted in the bill in question, chapter 35 of the Compiled Laws of 1862,-creating a criminal court for Leavenworth county; chapter 117 of the Laws of 1889, creating the court of common pleas of Sedgwick county; chapter 140 of the Laws of 1885, creating the superior court of Shawnee county; chapter 92 of the Laws of 1891, creating the court of common pleás of Wyandotte county; and chapter 16 of the Laws of ,1898, creating the court of common pleas of Crawford and Cherokee counties. A perusal of these acts and the differing provisions therein in regard to jurisdiction, procedure and the power of enforcing judgments of the various courts established thereby, and other differences referred to by Mr. Justice Benson in The State v. Nation, supra, fully justify the remark in the latter case that “these differenees, and others not'now referred to, indicate that such legislation mars the harmony of our judicial system, and tends to incongruities and evils in addition to those stated by Mr. Justice Porter in the Cloud county case.” (Page 897.) Uniformity in the procedure and jurisdiction of all nisi prius courts of general jurisdiction in the state is of but little, if any, less importance than the uniformity of the law as to the rights of property and of persons. We think it must be conceded that the act in.question is special legislation.

The real question, and we may say the difficult question, is, Can a general law be made applicable to the varying conditions and, necessities of the different counties and cities of the state which will supply to every portion of the state reasonably adequate and expeditious facilities for the judicial determination of all civil and criminal actions which arise or may arise therein? This all citizens of the state have a right to expect in every section, thereof. Also, it has been the general policy of the state to pay from the state treasury the salaries' of district judges and justices of the supreme court, and it seems unfair to impose upon communities which require additional judicial facilities of the character which in other communities devolve upon district judges the burden of paying the salaries of judges of courts designed for that purpose. This has been done by some of the special acts referred to. It is desirable, also, that citizens in every part of the state should be assured that they may go to the records of one court in any county of the state and ascertain what judgments or liens, if any, affect the title to any real estate in that county in which they may be interested. Many other reasons might be assigned making it desirable and important to have only one court of general jurisdiction in each county of the state.

Before holding the act for the relief of Wyandotte county unconstitutional it devolves upon this court at least to suggest the general features of a law which can be made applicable to the whole state. We adopt the suggestion made in the defendant’s brief, which is, in substance, that in cases where a judicial district consists of one county only, and one judge is unable to discharge the business devolving upon the court, one or more' additional district judges, as the necessities and convenience of the public may require, be provided for such district. By the provision of section 14 of article 3 of the constitution judicial districts must be bounded by county lines, and hence a county can not be divided into two or more judicial districts. However, there is no inhibition in the constitution against there being more than one district judge in a judicial district. It is suggestive that in framing the constitution it was provided, in section 1 of article 3, that the judicial power of the state should 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. It was provided by section 2 that the supreme court shall consist of one chief justice and two associate justices (since amended to provide for seven justices). Section 8 provides that the probate court shall consist of one judge, but there is no specification of the number of judges of which a district court shall be composed. True it is that section 5 divided the state into five judicial districts, and provided that in each of the districts a district judge should be elected, and section 20 of the same article provided for the election of a judge pro tern, “when the judge is absent or otherwise unable or disqualified to sit in any case.”

It may be argued that the words “a” and “the” as used in these sections refer to one person, and by implication limit the number of judges in one judicial district to one person. It may not have been in the minds of the framers of the constitution that more than one district judge might become necessary in one judicial district, and hence the use of the articles “a” and “the,” but since no specific limitation was made on the number of judges, as was done with reference .to the supreme court and the probate court, it is reasonable to infer that no such limitation was intended. The evident great benefit to the state which would result from harmonizing our judicial system and judicial procedure impels us, in the absence of such express inhibition, to suggest that a law providing for more than one judge in a judicial district would not be in violation of the constitution.

It follows that the legislature can enact a general law applicable to the whole state providing that when a judicial district has or attains a certain population, or has placed upon the docket of its district court a certain number f of cases annually, or when both of these conditions concur or other conditions make it reasonably necessary, the facts being ascertained in a manner provided by the law, the governor may appoint, or the electors of the district may elect, a .second district judge of the district, and upon certain other specified conditions that a third or fourth district judge of the district may be appointed or elected. Provision may also be made in case there be more, than one district judge in a district for the judges to hold court in divisions. The plan suggested may not be the only one feasible.

We conclude that chapter 52 of the Laws of 1908 is-in derogation of section 17 of article 2 of the constitution, which inhibits the enactment of a special law where a. general law can be made applicable. The judgment of the court is that the defendant, Frank D. Hutchings, illegally assumes to exercise, and does exercise, the powers, privileges and prerogatives of a judge of the state of Kansas in a court of general jurisdiction, that he be ousted from such office, and that he pay the costs of this action.