60 Kan. 796 | Kan. | 1899
The opinion of the court was delivered by
This is a proceeding in habeas corpus. On the 25th day of May, 1899, Ed. Hendricks, the petitioner, was committed to the jail of Douglas county upon a charge of petty larceny by order of a justice of the peace of the city of Lawrence. He alleges that chapter 124, Laws of 1899, which took effect by publication in the volume of session laws on the 15th day of May of this year, deprived justices of.the peace in the city of Lawrence of jurisdiction over criminal actions, wherefore he is wrongfully restrained of his liberty under the order of commitment. Such portions of the act in question as are material to an understanding of the case read as follows :
“An Act creating a county court in Douglas county, Kansas, fixing the jurisdiction thereof, and defining the powers and duties of the officers thereof, and limiting the jurisdiction of the justices of the peace in the city of Lawrence in said county.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That in the city of Lawrence, Douglas county, Kansas, a court is hereby dreatecl, to be called the ‘ county court of Douglas county, Kansas.’ Said court shallhave one presiding judge. . . . The court hereby created shall sit in the city of Lawrence, provided, that after this act shall take effect justices of the peace of said city of Lawrence shall have no jurisdiction of any case, civil or criminal, except in civil actions for the recovery of money only where the amount claimed, exclusive of interest and costs, does not exceed the sum of one dollar.
“Sec. 2. The governor shall, within twenty days*798 after the enactment of this bill, appoint and commission the judge of said court, whose term of office shall commence with the date of his commission and who shall hold his office until the second Monday in January, 1901, and until his successor is qualified, as hereinafter provided.
“Sec. 8. That the board of county commissioners of Douglas county shall submit to a vote of the qualified voters of said county at the next general election, for the purpose of submitting to the qualified electors the question of whether or not the county court of Douglas county shall be established. The proposition to be submitted shall be printed on the official ballot, and shall bear the printed words and figures, thus :
“ Shall a county court be established for Douglas county, Kansas ? Yes No
“Each elector shall designate his vote by a cross in the blank after the word ! Yes’ or 'No’ as he desires to vote for or against said proposition. Said votes shall be canvassed by the board of county commissioners, and the clerk shall immediately certify the result of said election to the governor of the state of Kansas, who, if the majority of the electors voting on the proposition at such election shall favor the creation and establishment of said county court, shall immediately appoint a judge for said court, as hereinbefore provided.
“Sec. 9. All acts or parts of acts in conflict with the provisions of this act be and the same are hereby repealed.
“Sec. 10. That this act shall take effect and be in force from and after its passage and publication in the statute-book.
“Approved March 4, 1899.”
It is contended upon the part of the petitioner that all of the above partially quoted act is valid except section 8, which requires a submission to the voters of Douglas county of the question whether the court shall be established. That section is said to be a dele
The question thus presented is an interesting and important one. A legislative act which provides for its taking effect in the contingency of a favorable popular vote is an illustration of the “referendum” principle of direct legislation by the people. This is said in a broad and untechnical sense, and without reference to the distinction which the courts have drawn between the attempted enactment of laws by popular vote and the acceptance of an enacted law by popular vote. The writer, speaking for himself alone, is firmly of the opinion that the principle of direct legislation is the wiser and more democratic principle, and would like to see it incorporated into the political system of the country. He nevertheless joins with his associates in holding that the above-quoted act is inoperative and void. Our view, however, is not affected by the consideration that the enactment may be regarded as an application of the referendum principle, or as a delegation of legislative power, but by the fact that its principal provisions are so irreconcilable and absolutely contradictory of one another as to prevent the act from having any meaning or effect whatever. A brief analysis of these provisions will show this to be the case.
Section 1 declares that “ a court is hereby created.”
So far the act is reasonably plain and susceptible of comprehension. Were it not for section 8 it could take effect and be enforceable according to its terms, as thus far stated. That section, however, provides that “the board of county commissioners of Douglas county shall submit to the voters at the next general election the question whether the county court of Douglas county shall be established,” and it declares that if a majority of the electors voting upon the proposition shall favor the establishment of the court the governor “shall immediately appoint a judge of said court as hereinbefore provided.” It is impossible to reconcile this section with the other provisions of the act. Section 1 establishes the court in prxsenti. Section 8 establishes it in futuro, and conditioned upon a majority vote of the electors. Section 2 requires the appointment of a judge within twenty days after the taking effect of the act and fixes the commencement of his term of office at the date of his commission. Section 8 delays the appointment of the judge until after the next general election and conditions his appointment upon the action of the electors. In the face of these repugnant provisions how is it possible to ascertain the real legislative intent ? If we should say that the act is not to take effect until after the next general ’election and then only in the event of the acceptance of its provisions by the electors of Douglas county, we would do so in the face of the plain declaration of section 10 that “ this act shall
If we were to say, in accordance with the theory of the respondent, that the act merely authorizes the submission to the voters of Douglas county of the question whether they desire the establishment of a county court, and that the taking effect of the act according to section 10 was merely the taking effect of .the legislative will that such question should be submitted, we should have to do so in disregard of the mandate of section 2, requiring the governor, to appoint a judge of the court “within twenty days after the enactment of the bill.” If we were to construe the words “enactment of the bill” to mean “taking effect of the' act,” as for some purposes we may, we would be no-further advanced toward a point of harmony between the conflicting sections. That would only be saying that the governor should appoint a judge of the court within twenty days after the taking effect of the legislative will to submit the question to the voters. The repugnancy between the two sections would not be removed ; it would still exist. If we were to say that “ twenty days after the enactment of the bill.” means-twenty days after the taking effect of the act, and that, “twenty days after the taking effect of the act’v means, in that instance, twenty days after the accept
The only possible construction which this act will bear, and by which a-semblance of harmony between its provisions can be secured, is that the court is created as declared by section 1; that the governor shall appoint and commission the judge within twenty days after the taking effect of the act, and that the court thus established shall exist until the next general election, after which, if the voters so elect, it shall be continued and a new appointment made, and if the voters do not so elect, the court thus created shall be abrogated and the judge thus appointed shall go out of office ; in other words, that the court created is to be tentative and provisional only and to depend for its continued existence upon the will of the electors. This could not have been the legislative intent. Nothing in the words of the bill authorizes such an inference. If we were, so to hold it could be done only by forced
As stated, however, the petitioner urges that section 8, being alone objectionable upon constitutional grounds, and being separable from the remainder of the act, may be eliminated and the other sections allowed to stand. It is true that parts of 'a statute repugnant to constitutional provisions do not nullify the whole of the act of which they are a part, if they can be so separated from the remainder as to leave a complete and intelligible whole. This, however, is not true where it is plain to be seen from the entire act that the inclusion of the invalid provision was a
We are aware of the rule which requires courts to endeavor to harmonize conflicting portions of a statute. We have diligently endeavored to observe the rule in this case, but can arrive at no comprehension of the legislative intent in the enactment of this, measure. It must therefore be held inoperative and void because of the absolute contradiction between its principal provisions. Plowever averse the courts are to such action, they have several times heretofore been compelled to take it. In Hughes’ Case, 1 Bland Ch. 46, it was said :
1 “When an act of assembly authorizes an object to be attained and the prescribed course of attaining it is deficient, that of the forum resorted to may be pursued for the purpose of supplying such deficiency. If the deficiency cannot be so supplied, w-ith propriety and effect, then the court applied to can have no jurisdiction ; and if it cannot be supplied by any other court, then the act of assembly must be treated as a nullity, because of there being no tribunal competent to execute it.”
“The act of November 1, 1871 (Pamphlet Acts, p. 17), authorized appeals from interlocutory judgments, orders or decrees thereafter rendered by the district courts, and required that such appeals be regulated by the law regulating appeals from final judgments in the district court, so far as the same may be applicable thereto. Held, that this act is nugatory and void, for the reason that the statutes regulating appeals from final judgments are entirely inapplicable to appeals from interlocutory judgments.”
In the opinion it was remarked :
“We hesitate, to consider well any judgment of ours which declares unconstitutional or void an act of the legislature, paying due deference to the learning and wisdom of that branch of the government. But when we find ourselves totally unable to administer a law by reason of its uncertainty or ambiguity, or believe it to be unconstitutional, we shall not hesitate to discharge the duty which the law devolves upon us. . . . We do not mean to say, by any means, that the act of November 1, 1871, is unconstitutional, but we do say that it is nugatory and void for want of some adequate provision in the law to carry out its execution. And, for the reasons given, the appeal in 1287 must also be dismissed.”
In State v. Partlow, 91 N. C. 550, a statute prohibit
The conclusion is that the justice of the peace had jurisdiction over the person of the petitioner. He is therefore remanded to the custody of the respondent.