12 Kan. 102 | Kan. | 1873
The opinion of the court was delivered by
The only question presented to us in this case for our consideration is, whether §§ 4, 5 and 6 of the act providing for the sale of school lands, (Gen. Stat., 942, 943, laws of 1871, pp. 315, 316,) are unconstitutional or not. Under said sections Anderson Johnson made an application to the pi’obate court of Howard county, asking to be allowed to purchase a certain quarter-section of school land situated in said county. The probate court entertained the application, heard the questions involved therein, decided the case upon its merits, determined the same adversely to the applicant, and rendered judgment against him for the costs accruing therein. Johnson then applied to the district court, and the district court, on motion of the county attorney, dismissed the proceeding on the ground “ that the statutory provisions relating to such proceedings are unconstitutional and void, and the said probate court had no jurisdiction to hear and determine the matters and things set forth in the said petition,”
We do not think that said sections are unconstitutional; or at most we do not think that they are unconstitutional as'' applied to this case. They provide that actual settlers upon the school lands who have settled thereon “prior to the first day of January 1871, and prior to. the United States survey of the Osage diminished reserve,” (Laws of 1871, pp. 315, 316,) and made improvements thereon, may purchase the same at the appraised value thereof, exclusive of the value of the improvements. And they also provide that the probate court shall have jurisdiction to hear and determine all questions necessary to be determined in order to ascertain whether the applicant is entitled to purchase said land under said sections, or not. It is claimed that said sections are unconstitutional because the jurisdiction that they attempt to confer upon the probate court is not probate jurisdiction, nor any jurisdiction authorized to be conferred upon probate courts by the constitution. For the sake of the argument, and for that only, we shall admit all this. And in the sanfe manner we shall further admit that it is a jurisdiction that cannot be forced upon any probate judge against his will. And still we do not think that said sections are unconstitutional. There is no prohibition in the constitution or elsewhere against the exercise of such jurisdiction by the probate courts. There is no inconsistency between 'the exercise of this jurisdiction, and the performance of any other duty that may rightfully be conferred upon probate, courts. And the probate courts or judges thereof may exercise this jurisdiction as consistently with the performance of their other duties, as they may take the acknowledgment of deeds, or solemnize marriages. This is a jurisdiction which has not been placed anywhere else, either by the constitution - or the statutes, and we certainly think the probate courts, or the judges thereof, may exercise it if they choose. This is not the first jurisdiction or power which has been conferred upon probate courts or probate
The judgment of the court below is reversed, and cause remanded with the order that the motion of the county attorney be overruled, and for further proceedings in accordance with this opinion.