81 Kan. 446 | Kan. | 1910
The opinion of the court was delivered by
The city of Glen Elder, a city of the third class, presented an application to the board of county commissioners of Mitchell county, under section 1172 of the General Statutes of 1901, for authority to extend its city limits. The application came on for hearing February 23, 1905, and the order was granted. The appellants own land affected by the order, and appealed to the district court. The city filed a motion to dismiss the appeal, on the ground that section 1175 of the General Statutes of 1901, authorizing an appeal from such an order, is unconstitutional. The motion was sustained and the appellants brought proceedings in error to this court, where the judgment was reversed and the cause remanded for trial. (Nash v. Glen Elder, 74 Kan. 756.)
On the trial at the April, 1907, term of the district court the appellants moved to vacate the order of the 'county board, on the ground that section 1172 of the General Statutes of 1901, authorizing the board to make the order, is unconstitutional and void for the reason that it attempts to confer upon the board legislative and judicial functions so commingled as to violate the laws and constitution of the state. The court denied their motion, and, on the trial, judgment was rendered in favor of the city. The appellants bring the cause here for review.
The present contention that the statute (§ 1172) violates the constitution because it attempts to confer
It is no valid objection to an act of the legislature that it confers upon the county board a power purely legislative and at the same time confers upon that body the power to perform some act which in its nature is judicial. The power to perform an act judicial in its nature will not constitute the officer or corporate body authorized to act a court in the sense that the courts are one of the three branches of government. * All the discussions of the subject by this court, as well as those by other courts and writers on constitutional law, recognize the impossibility of the absolute divorce of the three fundamental powers of government. The American theory of government, state and federal, is that the three branches of government shall be kept separate. The judicial power — that is, the intrinsically judicial power — may not be conferred upon that branch of government whose functions are intrinsically legislative; nor may powers intrinsically legislative be conferred upon the courts or upon the executive; nor may powers intrinsically or essentially executive be conferred upon either of the other branches of government. The constitution itself, however, provides for the exercise of exceptional powers ¡partaking in their nature of the functions of all three of the branches of government. The courts, in prescribing rules for their future regulation, act necessarily in a legislative capacity, but only in an incidental way, for the purpose of preserving their independence. The board of county commissioners, from the very nature of things, is required to exercise powers partaking in part of the three functions of government. Generally it acts in an executive, or administrative, capacity, but at times its action is judicial in nature; and, again, in many of the important affairs of the county its functions are legislative.
Ih several states of the Union the legislatures in re
In Winchester, &c., R. Co. v. Com’th, 106 Va. 264, it was held that clothing a state corporation commission with limited legislative, judicial and executive powers is not in contravention of the bill of rights which in that state provides that “except as hereinafter provided, the legislative, executive and judiciary departments shall be separate and distinct.” (Page 268.)
In the early case of The State of Kansas v. Young and others, 3 Kan. 445, construing section 27 of the organic act (Gen. Stat. 1901, § 62), vésting the judicial power of the territory exclusively in the supreme court, district courts, probate courts and justices of the peace, it was held that the administration of municipal ordinances is the exercise of a sort of judicial power, “but it is not part of the judicial power contemplated by the section referred to.” (Page 448.)
Mr. Justice Johnston, in a concurring opinion in In re Sims, Petitioner, 54 Kan. 1, used this language:
“It is highly important to separate the legislative, judicial and executive functions, and that the officer of one department should not' exercise the functions conferred upon another. Under our system, however, the absolute independence of the departments and the complete separation of the powers is impracticable, and was not intended.” (Page 11.)
Again, the court, in The State v. Railway Co., 76 Kan. 467, said: “Notwithstanding these well-estab
Much reliance is placed by the appellants on The State v. Johnson, 61 Kan. 803, where the act creating the court of visitation was declared unconstitutional. The act under consideration there was palpably an invasion of the constitution. It attempted to create a court and to confer upon it powers so essentially legislative and executive that in overturning it it was not deemed necessary to draw fine distinctions with respect to the separation of the powers of government. In the opinion, however, Mr. Justice Smith, speaking for the court, noted the difference between those powers which are intrinsically sovereign and the exceptional functions provided for by the constitution and necessarily incidental to the exercise of the sovereign powers confided to each department. In the opinion it was said:
“But conferring upon a single tribunal powers intrinsically judicial, intrinsically executive and intrinsically legislative has never been sanctioned by any court nor supported by any writer on the constitution.” (Page 822.)
In the recent case of The State v. Keener, 78 Kan. 649, the court again recognized that the separation of powers contemplated by the constitution is, in the language of Mr. Justice Burch, speaking for the court, “subject to the limitations which have been found to be necessary and unavoidable in the practical working out of our scheme of government.” (Page 653.) The syllabus in that case reads, in part, as follows:
“Although the police judge of a city of the second class exercises judicial functions, he is not a repository of judicial power in the sense of section 1 of article 3 of the constitution.”
Our conclusion is that the statute in question is not open to the objection that it attempts to confer legislative and judicial powers on the county board in violation of the constitution.
The judgment is affirmed.