108 Kan. 856 | Kan. | 1921
Paul B. Bailey brings this proceeding asking a peremptory writ of mandamus requiring N. A. Turner, the state auditor, to approve his claim for services during March, 1921, as official reporter of a district court, and to issue him a warrant therefor. The defendant resists the order and justifies his action upon the ground that the plaintiff, being a nephew of the district judge, is disqualified from holding the office of reporter by the provisions of a statute which became effective March 2, 1921. The cause is submitted for a decision upon the pleadings.
“The judge of each district court of the state of Kansas, and, in case said court consists of two or more divisions, then the judge of each division thereof, shall appoint a shorthand reporter, who shall be qualified as provided by law, shall be a sworn officer of the court, and known as the ‘official reporter of the - judicial district of the state of Kansas, (Division No.-),’ and shall hold his office during the pleasure of the judge appointing him: Provided, however, That no reporter shall be related by blood to the presiding judge of the court wherein he is employed.” (Laws 1921, ch. 171, § 1.)
The plaintiff had been appointed and was acting as court reporter when this act was passed, and has acted continuously without any new designation. He contends that the statute means that after its enactment a judge shall not appoint a relative as stenographer, but that its purpose is not to prevent one who had been appointed previous to that time from continuing to act. Although the new law is in a sense amendatory of that which it supersedes, it creates a new situation. The position of court reporter is given a more definite official status. The appointment of such an officer is made mandatory instead of discretionary. The rule that “the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment” (Gen. Stat. 1915, § 10973, subdiv. 1) “implies that ordinarily language of an earlier statute which is preserved in an amendment is deemed to speak as of the time of the original enactment, and not of the later one.” (Railway Co. v. Fuller, 105 Kan. 608, 610, 186 Pac. 127.) The original section for which that above quoted is substituted read “The judges of the district courts of the state of Kansas may each, in his discretion, appoint a stenographer, who shall act as official reporter and be a sworn officer of the court, and shall hold his office during the pleasure of the judge appointing him.” (Gen. Stat. 1915, § 2995.) The words of the new act “The judge of each district court . . . shall appoint a shorthand reporter” can hardly be regarded as speaking as of t-'e time of the earlier enactment, for they were not used therein.
We have had in this state for many years statutes disqualifying jurors in civil cases who are “of kin” to either party (Gen. Stat. 1915, § 7182), arid in criminal cases who are “of kin” to the injured person or the prosecutor or defendant (Gen. Stat. 1915, § 8116) ; and disqualifying in civil cases judges who are “related to either of the parties” (Gen. Stat. 1915, § 6947), and-in criminal cases judges who are “near of kin” to the defendant or the injured person. (Gen. Stat. 1915, § 8087.) Similar laws exist in other states. (For instance,' see §§ 1357, 1429, 2630 and 4011, R. S. Mo., 1919.) We are not aware of any difficulty having been experienced in the enforcement of these provisions or of their validity having been challenged. According to Coke a juror was formerly subject to challenge “Without any act of his, as if the juror be of blood or kindred to either partie, con