State ex rel. Griffith v. Anderson

117 Kan. 540 | Kan. | 1925

The opinion of the court was delivered by

Mason, J.:

On rehearing the defendant urges that a violation by a clerk of the district court of the statute referred to in the original opinion, forbidding county officers to retain any compensation or reward for doing anything appertaining to the duties of their office (R. S. 21-1607), is not a misdemeanor because the section fixing a penalty therefor has been repealed. The basis of the contention is this: Section 5 of the original act (Laws 1867, ch. 132; Gen. Stat. 1868, ch. 31, pp. 389-390), of which the provision above referred to formed section 3, subjected to a fine any state or county officer who should violate any of its provisions. Sections 1 .and 5 were amended in 1871 and in the amendment to section 5 (which fixed the penalty) the list of persons subject thereto included only public treasurers, all other officers being omitted. (Laws 1871, ch. 152, §§ 1, 3.) Section 1 of the 1871 act amended section 1 of the 1867 act, repealing, of course, the original section, and section 3 of the 1871 act amended section 5 of the 1867 act, repealing the original section. This left the statute without a provision for punishment so far as officers other than treasurers were concerned. But in 1889 the penalty section was again amended (Laws 1889, ch. 237, § 2) into its present form, including the provision that “any county officer . . . who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor.” The act of 1889 described the penalty section which it amended as section 3 of chapter 152 of the Laws of 1871, which it was; but it was also section 5 of chapter 132 of the Laws of 1867, as amended, a fact the legislature recognized by including (as the amendment of 1871 had done) the subtitle “section 5” as a part of the section as it should read after the amendment. An amendment to a section of a statute is regarded as incorporated into the original act and becoming a part of it. (Blake v. Board of Education, 112 Kan. 266, 267, 210 Pac. 351.) The first amendment of the penalty section at the time of its adoption became in effect a part of the act of 1867. When it was amended the original act was thereby amended, and the words “this act” in the latest form in which the statute was cast referred to the whole act as finally amended, and not merely to the second amending act. (Wright v. Cunningham, 115 Tenn. 445; State v. Buttignoni, 118 Wash. 110; see, also, Evans v. Adams, 21 Kan. 119; The State v. Berry, 103 Kan. 891, 176 Pac. 649.)

The fact that there is a statute requiring the clerk of the district court in counties having a population of more than 70,000 to deposit all funds with the county treasurer on the day after their receipt (R. S. 19-2613) does not avail the defendant for two reasons — it has never been acted upon by him, and it was not operative in Shawnee county until some time after March 1,1924, while the matters complained of took place largely in 1923.

The commissioner found that the defendant failed to file his four quarterly reports for 1923, for periods, respectively, of 4 months and 24 days, 2 months and 6 days, 24 days, and 1 month and 24 days beyond the time they were due by the mandatory terms of the statute, and during these periods retained moneys distributable to' the county and state. Whether or not these delinquencies in themselves amounted to a ground of ouster, they militate against the exercise in the defendant’s favor of such discretion as the court possesses in the matter, especially in view of the fact that he was drawing interest on the amounts so withheld.

The original judgment is adhered to and the defendant’s office is declared forfeited, the forfeiture to be operative upon the filing of this opinion.