The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-05-19
CITY ATTORNEY
SAYS ENOCH Is ENTITLED TO
OFFICE OF POLICE JUDGE.
Submits a Written Opinion on the
Law in the Case.

City Attorney Helm has submitted a
| written opinion on the subject now in con-
troversy. between E. E. Enoch and Judge
Mitchell, as to who is entitled to the office
Of police judge In part the opinion reads:
Wichita. Kan, May II. 1899.
Judge E e. Enoch, Wichita, Kan:
Dear sir-In reply to your request for
my opinion in writing as to whether the
office of police judge was elective or ap-
pontive on April 4, 1899, 1 have the honor
to inform you that since receiving your
request for written opinion on the sub
| ject, 1 have made careful examination
of the law governing the case and 1 am
satisfied that the office of police judge was
elective at the time OF the election held
April 4, 1899.
Chapter 12S of the laws Of 1895 did not
repeal section IS of chapter 81 of the laws
Of 1881, which provided for the election
of police judge in cities of the first class,
for the reason that said chapter 123 does
not comply with the requirements Of sec
| ton is of article 2 of the constitution of
the state of Kansas, which provides that
mo law shall be revived or amended, I'M
less the new act contain the entire act
revived, or the section, or sections amend
ed and the section. or sections so amended
| shall be repealed
The provision of the constitution requir-
! ing the new, or amended act to contain
| the entire act, or section revived, or
amended is held by the courts to be man
| datory.
Chapter 1913 OF the laws Of 1895 does not
meet the requirements of the constitu-
ton as construed by Chief Justice Martin
in the case of the State VS.. Quincy, supra,
and the other authorities referred to here
| in, to make it effective, as an amend
ment to section rs of chapter 81 of the laws
of 1881, are paragraphs 632 of the general
statutes of 1889 Said chapter 123 no
where pretends to re-enact either of those
sections as amended. Section l of said
chapter does not purport to be an amend
ment Of any prior section, neither is the
alleged amendment numbered 'section 7S''
| or Photographed 632." The number of a
section IS as much part OF the section
as any other part of it, and when an act
| pUrports to amend prior section, the
entire section, including the number of
the prior sections as amended should be
stated and repubIished in the amendatory
| enactments.
| Unless chapter 123 is a valid amendment
of section Is or paragraph 6S2 which pro-
vide for the election of a police judge, it
will not be contended that said sections
have been repealed by the passage of said
chapter.
The constitutional provisions relating to
the repeal Of an amended section does not
| operate to effect the repeal until there has
| been a valid amndment enacted to said
| prior section.
Chapter 123 of the laws Of 1885 is an in
effectual attempt TO amend the original
section providing for the election of city
| officers in cities of the frstclassandsaid
original section IS Of the laws of 1881 is
still In force and Unaffected by the pass
age of chapter 123.
The provisions for the election of a po-
| lice Judge has never been expressly re-
| pealed and 'repeals by implication, al
though not forbidden by the fundamental
law, are not TO be favored, especially in
view Of section 10 OF article OF the con-
| stitution.'
The supreme court has said in the case
of Stephens VS.. Ballou, q Kansas, 594, 500,
col, that in order to declare any legisla-
ton repealed by that method the court
should be satisfied that such has been
done beyond all reasonable dougt. Kan
sas Breeze VS.. Edwards, 50 Kansas, 633.
1t is my opinion that the legislature has
never repealed the law providing for the
election OF police judges in cities Of the
first class and that it never intended to
do so.
1t therefore follows, If my view Of the
law shall be determined to be correct, that
you were legally elected police judge of
the city of Wichita, at the late election
and that you are entitled to the office, but
in view of the fact that the attorney gen.
eral of the state has rendered an opinion
that the Office is not elective, l suggest
that it viii be better to have proceedings
brought in the courts 10 determine the
matter, as 1 understand you intend do
ing. Yours truly,
L IET NJ CITY AttOrueS