43 Kan. 188 | Kan. | 1890
The opinion of the court was delivered by
This is a proceeding in habeas corpus, brought originally in this court by John T. Tillery, Carey Crisler, Richard C. Mattox, Jesse Ford, Calvin Ford, and J. W. Drake, wherein it is set forth that D. D. Britton, the sheriff of Allen county, is unlawfully restraining the petitioners of their liberty. The sheriff makes return that he is holding each of the petitioners under a state warrant issued from the district court of Allen county upon an indictment charging each of the petitioners with the commission of the crime of murder. Both the warrant and the indictment appear to be regular and valid; but the petitioners claim that the grand jury who found and returned the indictment were not legally impaneled, and were not in fact a grand jury, and therefore that the imprisonment of the petitioners upon such indictment is unlawful. The facts appear to be substantially as follows; On February 4,1889, and in accordance with the laws of Kansas as they then existed, (Laws of 1887, ch. 167,) a grand jury were regularly ordered and drawn, and were afterward summoned to attend the March term of the district court of Allen county, which was to convene on March 18, 1889. Afterward, and on February 27, 1889, a new act relating to grand juries was passed by the legislature, which act took effect on March 8,1889. (Laws of 1889, ch. 153.) Aft
“ Sec. 2. Sections one and four of chapter one hundred and sixty-seven of the Session Laws of 1887 be and the same are hereby repealed.”
The grand jury were regularly ordered, drawn, summoned, impaneled and sworn, as provided by the old act, and they were also regularly ordered, drawn, summoned, impaneled and sworn as provided by the new act, except that there was no petition filed or presented to the district judge praying for a grand jury, as the new act requires. Under the new act a grand jury is never ordered, drawn, or summoned, except “when a petition signed by one hundred of the tax-payers of the county, praying for said grand jury, shall be presented to the judge of the district court of said county at least twelve days before the commencement of the term of court at which such grand jury may be desired by said petitioners.” Such a petition was never presented to the judge of the district court in this case, and indeed could not have been under any statute, for the new act did not take effect twelve days before the commencement of that term of court, and the old act did not require any such .petition; and for the reason that no such petition was presented, and for no other reason, it Is now claimed by the petitioners that all of the proceedings connected with or relating to the grand jury were and are utterly null and void. On the other side, and by thé state of Kansas, it is claimed that all the proceedings in ordering, drawing,
“Section 1. In the construction of the statutes of this state, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute:
First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. 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.”
This and similar statutes have often been construed by the supreme court. See the following cases: Gordon v. The State, 4 Kas. 489; Willetts v. Jeffries, 5 id. 473; Bowman v. Cockrill, 6 id. 327; Gilleland v. Schuyler, 9 id. 569; The State v. Boyle, 10 id. 113, 116, 117; Morgan v. Chapple, 10 id. 224; The State v. Crawford, 11 id. 32; City of Troy v. A. & N. Rld. Co., 11 id. 519, 531; Jenness v. Cutler, 12 id. 511, 512; In re Petty, 22 id. 477, 481, 487, 488; Assurance Society v. Welch, 26 id. 632, 640, 641; Jockers v. Borgman, 29 id. 109, 112, 113; Board of Regents v. Linscott, 30 id. 240, 260, 261; The State v. Comm’rs of Butler Co., 31 id. 460; The State v. Showers, 34 id. 269, 270, 271.
“Section 113 of this new act contains a saving clause which reads as follows: ‘All proceedings, titles, etc., not completed at the time of the taking effect of this act, shall be carried to final determination and execution according to the laws in force under which they originated.’ The case of Gordon v. The State, ex rel., 4 Kas. 489, referred to by the plaintiff below, has no application in this case. The word ‘proceedings’ in the statute referred to in that case, (Comp. Laws, 838,) may mean judicial proceedings; but the word ‘proceedings’ in said saving clause undoubtedly means tax proceedings, the same as it does in that clause of §10 of chapter 198, (Comp. Laws, 878,) which reads as follows: ‘Such deed duly witnessed and acknowledged shall be prima facie evidence of the regularity of such proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed.’ ”
The legislature of Kansas has often used the word “proceedings ” in a manner to show that it meant tax proceedings. And the very same legislature that passed the above-mentioned act of 1868, concerning the construction of statutes, also passed an act concerning assessment and taxation, in which act it used the word meaning tax proceedings. (Gen. Stat. of 1868, ch. 107, §112.) In the case of Morgan v. Chapple, 10 Kas.
“Since the decision in Gordon v. The State, 4 Kas. 489, the legislature has established a new rule as to the effect of changes in the statutes. The last sentence of the first paragraph of §1 of chapter 104, Gen. Stat. 999, reads: ‘The provisions of any statute, so far as they are the same as of those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.’ ”
In the case of Assurance Society v. Welch, 26 Kas. 632, 640, 641, it is held under the foregoing statute as follows:
“Proceedings commenced by a life insurance company to obtain the right to discontinue its business in the state of Kansas, and to withdraw its securities from the state treasury, commenced under §20 (of the insurance act) before it was amended in 1881, are not destroyed or obliterated by the amendment of the section, and by the repeal of the original section; but the proceedings are as valid as though no repeal had been had.”
In the case of Board of Regents v. Linscott, 30 Kas. 240, 260, 261, it is held under the foregoing statute that the change of the boundary-lines of counties will not invalidate tax proceedings already commenced.
This proceeding will be dismissed, and the petitioners remanded to the custody of the sheriff.