84 P. 1028 | Kan. | 1906
The opinion of the court was delivered by
In this case there is a motion to dismiss. The judgment from which this proceeding in error arises was rendered December 31, 1904. A motion
“When no time is fixed for the settlement of a case for this court at the date of the expiration of the regular term of office of the trial judge who tried the case, such trial judge does not have jurisdiction thereafter to settle the case, although by appointment he becomes his own successor in office.” (Syllabus.)
(See, also, Butler v. Scott, 68 Kan. 512, 75 Pac. 496; Insurance Co. v. Harn, 69 Kan. 249, 76 Pac. 822; Zinc Co. v. Dwight, 69 Kan. 852, 76 Pac. 1130; Robbins v. Mackie, 70 Kan. 646, 79 Pac. 170; St. L. & S. F. Rly. Co. v. Corser, 31 Kan. 705, 3 Pac. 569; K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331.)
It is insisted, however, that since these decisions were made the legislature has provided for cases falling within the facts here involved by section 4 of chapter 320, Laws of 1905. The part of the section referred to reads as follows:
“Provided, however, that the judge of the district court or judge pro tern, before whom a case has been or shall be tried shall have power to sign and settle a case-made within one year from the making of any final order or rendering any final judgment, if the same has been legally served upon the adverse party,*240 notwithstanding that the term of office of any such judge or judge pro tem. may have expired after the rendition of such judgment or making such order and before such case-made may have been settled, provided such case-made has been served within the time previously fixed by such judge or judge pro tem. of such court.”
The main question involved in the motion to dismiss is, Does the law of 1905 operate retrospectively, so that a trial judge whose term of office expired prior to the passage of the act is given power to settle a case-made properly served within the time fixed by him in the order of extension, even where no definite time was fixed in the order of extension in which the case should be settled? Neither side has argued this question. Plaintiffs in error assume that the act of 1905 covers the case, and suggest that defendant in error must have overlooked this provision.
In some of the states the constitution provides that no law shall be given a retrospective operation. Our constitution is silent upon the subject. In the absence of any constitutional inhibition the legislature has the power to enact retrospective statutes in certain cases, provided such laws do not interfere with .vested rights. Whether vested rights are affected by such laws it is the province of the courts to determine. (Potter’s Dwarris, Stat. & Const. 166.) The rule is that they are not to be allowed a retroactive effect unless such intention upon the part of the legislature is so clearly expressed that no other construction can be fairly given. (Rogers v. Inhabitants of Greenbush, 58 Me. 395, 4 Am. Rep. 292.) Generally, a statute prescribes a rule for future action. (Prouty v. Stover, Lieut.-governor, 11 Kan. 235.)
In the case of Lawrence v. City of Louisville, 96 Ky. 595, 29 S. W. 450, 49 Am. St. Rep. 309, 27 L. R. A. 560, it was said:
“While retrospective legislation may, in some cases, be upheld, the words of a statute ought not to have a retrospective operation unless they are so clear and*241 imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.” (Syllabus.)
“The general rule is that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action or suits, and especially vested rights, unless the intention that it shall so operate is expressly declared, and courts will apply new statutes only to future cases, unless there is something in the very nature of the case, or in the language of the new provision, which shows that they were intended to have a retroactive operation. And although the words of the statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.” (Potter’s Dwarris, Stat. & Const. 162, note.)
To the same effect see Gerry v. Inhabitants of Stoneham, 83 Mass. 319; Garfield v. Bemis, 84 Mass. 445; Loring and another v. City of Boston, 78 Mass. 209; John O. Kinsman v. City of Cambridge, 121 Mass. 558; Atkinson v. Dunlap, 50 Me. 111; Bryant v. Merrill, 55 Me. 515; Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N. E. 238; Dobbins et al. v. First Nat. Bank, 112 Ill. 553; Rock Island Nat. Bank v. Thompson, 173 Ill. 593, 50 N. E. 1089, 64 Am. St. Rep. 137. In the last-named case it was said, at page 607:
“Retrospective laws are not looked upon with favor. Statutes are usually construed as operating on cases which come into existence after the statutes are passed, unless- a retrospective effect is clearly intended. (Endlich, Interp. of Stat., §§ 271, 273, 275, 276.)”
The authorities are collated in section 642 of volume 2 of the second edition of Lewis’s Sutherland on Statutory Construction.
Keeping in mind the rule that a statute must be given a prospective instead of retrospective operation, unless the legislative intention to the contrary so clearly and imperatively appears that no other meaning can be attached to the terms, or unless the intention of the
In Dyer v. Belfast, 88 Me. 140, 33 Atl. 790, an act which provided that when any person aggrieved by the estimate of damages for land taken for a public way honestly intended to appeal therefrom, but by accident or mistake omitted to take his appeal within the time allowed by the law, he might at any time within six months have an appeal by applying to any judge of the supreme court, was held hot to apply to a case where the right of appeal had been fully barred before its enactment. It was held in Loring and another v. City of Boston, 78 Mass. 209, that a statute
In the case at bar the difficulty lies in the fact that under the previous rulings of this court the jurisdiction of the trial judge to settle the case ended March 11, 1905. The act of 1905 took effect March 21, 1905. Whatever may be said of the power of the legislature to enact retrospective laws, an act will not be given a retrospective operation so as to infuse life into proceedings which have lapsed'and become absolutely void for want of jurisdiction unless such was clearly the intention of the legislature. If the intention of the legislature had been to have this statute affect cases where the jurisdiction of the judge who tried the case had been lost, apt words would have been employed to indicate such purpose.
Counsel in a similar case which is pending have called our attention to Johnson v. Higgins, 53 Conn. 236, 1 Atl. 616, as authority for holding that the legislature has the power to confer upon á former judge who has tried a cause authority to perform judicial powers necessary to permit a litigant to perfect an appeal. In that case a judge resigned his office March 7. On March 31 an act was passed which authorized a former judge to perform the acts in question. Subsequently he did so. The court upheld the constitutionality of the act. If the legislature has authority thus
We have carefully considered the effect of the act of 1905, realizing that, aside from the importance to the parties and the public of the case at bar on its merits, there are pending other cases involving property rights in .which the jurisdiction of this court depends upon the construction placed upon this act. We are of the opinion that, inasmuch as the trial judge had lost all jurisdiction to settle the case before the act of 1905 took effect, that act was powerless to infuse life into the proceedings, or confer upon him authority to act further. The act cannot be given a retrospective operation. Its language nowhere indicates such an intention upon the part of the legislature. The motion to dismiss is allowed.