The opinion of the court was delivered by
Brewer, J.:
This is a petition for a writ of habeas corpus. The petition alleges that the plaintiff is restrained of his liberty by the sheriff of Ford county, under a warrant of commitment issued by the district court of Ford county, in default of bail in the sum of one thousand dollars, required by said court of plaintiff, to secure his attendance at the next term of said court, to answer to the charge of grand larceny; and avers that such restraint is illegal, because the offense was committed in Foote county, and that Foote county has never been legally attached to Ford county for judicial purposes, so-as to give the district court of said last-mentioned county jurisdiction of the offense. The said sheriff produces the body of plaintiff in court-, and makes return in due form of law, setting forth that he restrains said plaintiff under an information and order of court, both of which are attached to said return. Neither the facts stated in the return nor its formal sufficiency is controverted, but a motion is made to discharge the prisoner, notwithstanding the return, on the same grounds made in the petition.
By an act approved March 4, 1873, (Laws of 1873, ch. 79, §1,) the ninth judicial district was made to embrace certain specified counties, “and all that portion of the state lying south of the fourth standard parallel and west of the counties of Hodgeman, Ford and Clark.” This territory was not at that time divided up into counties, either organized or unorganized. By an act approved March 6, 1873, (Laws of 1873, ch. 72, §13,) the unorganized county of Foote was created. The information shows that the offense for which the prisoner is held was committed in the unorganized county of Foote, and that this county was created out of territory placed in the ninth judicial district by the act of March 4, 1873.
The constitution provides (a.rt. 3, §14) that “judicial districts shall be formed of compact territory and bounded by county lines.” Doubtless the purpose of this was to prevent the division of a county, and the placing of a portion in one district and the remainder in another; so that argument may fairly be made that in the undivided territory beyond the limits of county lines the section is without force, and the legislature at liberty to divide that territory into judicial districts in any manner it may choose. Of course, that would end any question; but it may also be said, and we think it the better construction, that the effect of that provision is to limit the power of the legislature in the formation of judicial districts to the territory actually divided into counties. Shall be bounded by county lines, is the language. And it can hardly be that the existence of'judicial districts and district courts was contemplated in the outside undivided territory. In other words, the district as a district is to be created and composed of existing counties. What effect does such construction have upon the first section of said ch. 79, that defining the boundaries of the ninth judicial district? Does it vitiate the entire organization of the district? We think not. The section reads that the district shall consist of certain named counties and the undivided territory. If the latter may not be included in ány district, then the latter portion of the section may be dropped as nugatory and as surplusage, and the district will stand as composed solely of the counties named. We turn then to § 6 of the same act, which in terms attaches this undivided territory to the county of Ford for judicial purposes, and if this section is valid the jurisdiction of the district court of Ford county must be conceded. It is contended that the constitution does not authorize the attaching of undivided territory, but only of new or unorganized counties to judicial districts. (Art. 3, §19.) It is true the constitution nowhere in terms authorizes the attaching of such territory, but it is also true that it nowhere directly or indirectly prohibits such attaching; and if there be no prohibition directly or by implication, then the act is within the general grant of legislative power. A large portion of the state at the time of the framing of our constitution, consisted of undivided territory, and that the convention contemplated , the existence of such territory without any power in the legislature to provide, through the machinery of courts and the processes of law, for the punishment of crime or the protection of life and property in such territory, is an imputation not to be tolerated. The continuance of such territory was believed to be temporary, and while provision was necessary in the organic instrument for all that was permanent and enduring, it was doubtless thought that the general grant of legislative power was sufficient for all the temporary necessities of the undivided and • unoccupied territory. The grant of power to attach existing though unorganized counties to judicial districts, carries no implication of a denial of power to so attach undivided territory. There is nothing exclusive in such grant, i. e., nothing excluding the exercise of similar-power upon different objects, and under different conditions. It is not like the annexing of certain conditions to the exercise of a right, as in the qualifications of a voter, which by implication prohibits the legislature from attaching other and more burdensome conditions. As was said in the case of Prouty v. Stover, 11 Kas. 256: “To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision.” And surely the attaching of undivided territory to a judicial district in no manner interferes with, trenches upon, or affects the so attaching divided territory. Each may be done, and neither affects the other. But it is said that by § 10 of the bill of rights, an accused is entitled to a trial by a jury of the county or district in which the offense is alleged to have been committed, and that this guaranty is trespassed upon by sustaining the power to so attach. Attaching a county or territory to a district does not make it a part of the district. They are still separate and distinct, though united for certain purposes. The guaranty of a trial by a jury of the county is not sustained by a mere legislative declaration that the county in which the offense was committed is attached to the county in which the prosecution is sought. If it were, then this valuable guaranty of personal right is at the mercy of any legislature, and a party committing an offense in Ford county may be prosecuted in Doniphan county, by simply enacting that the former is attached to the latter for judicial purposes. Waiving any inquiry into the effect upon such an act of the words, “the most convenient judicial district,” in said §19, we remark that the constitution must be so construed as to harmonize its various provisions. Section 19 authorizes the attaching of new or unorganized counties to a judicial district. Said § 10 guarantees a trial by a jury of the county or district. Now to attach a county for judicial purposes, to a district without any power in the district court, to try for an offense committed in such county, would be mere trifling. The power to attach for judicial purposes, carries with it by necessary implication full jurisdiction over the county or territory attached; and the guaranty in §10 must be construed as limited by the power to attach, and the attached territory as a. part of the district within the scope of said § 10.
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The opinion of the court was delivered by
Brewer, J.:
This is a petition for a writ of habeas corpus. The petition alleges that the plaintiff is restrained of his liberty by the sheriff of Ford county, under a warrant of commitment issued by the district court of Ford county, in default of bail in the sum of one thousand dollars, required by said court of plaintiff, to secure his attendance at the next term of said court, to answer to the charge of grand larceny; and avers that such restraint is illegal, because the offense was committed in Foote county, and that Foote county has never been legally attached to Ford county for judicial purposes, so-as to give the district court of said last-mentioned county jurisdiction of the offense. The said sheriff produces the body of plaintiff in court-, and makes return in due form of law, setting forth that he restrains said plaintiff under an information and order of court, both of which are attached to said return. Neither the facts stated in the return nor its formal sufficiency is controverted, but a motion is made to discharge the prisoner, notwithstanding the return, on the same grounds made in the petition.
By an act approved March 4, 1873, (Laws of 1873, ch. 79, §1,) the ninth judicial district was made to embrace certain specified counties, “and all that portion of the state lying south of the fourth standard parallel and west of the counties of Hodgeman, Ford and Clark.” This territory was not at that time divided up into counties, either organized or unorganized. By an act approved March 6, 1873, (Laws of 1873, ch. 72, §13,) the unorganized county of Foote was created. The information shows that the offense for which the prisoner is held was committed in the unorganized county of Foote, and that this county was created out of territory placed in the ninth judicial district by the act of March 4, 1873.
The constitution provides (a.rt. 3, §14) that “judicial districts shall be formed of compact territory and bounded by county lines.” Doubtless the purpose of this was to prevent the division of a county, and the placing of a portion in one district and the remainder in another; so that argument may fairly be made that in the undivided territory beyond the limits of county lines the section is without force, and the legislature at liberty to divide that territory into judicial districts in any manner it may choose. Of course, that would end any question; but it may also be said, and we think it the better construction, that the effect of that provision is to limit the power of the legislature in the formation of judicial districts to the territory actually divided into counties. Shall be bounded by county lines, is the language. And it can hardly be that the existence of'judicial districts and district courts was contemplated in the outside undivided territory. In other words, the district as a district is to be created and composed of existing counties. What effect does such construction have upon the first section of said ch. 79, that defining the boundaries of the ninth judicial district? Does it vitiate the entire organization of the district? We think not. The section reads that the district shall consist of certain named counties and the undivided territory. If the latter may not be included in ány district, then the latter portion of the section may be dropped as nugatory and as surplusage, and the district will stand as composed solely of the counties named. We turn then to § 6 of the same act, which in terms attaches this undivided territory to the county of Ford for judicial purposes, and if this section is valid the jurisdiction of the district court of Ford county must be conceded. It is contended that the constitution does not authorize the attaching of undivided territory, but only of new or unorganized counties to judicial districts. (Art. 3, §19.) It is true the constitution nowhere in terms authorizes the attaching of such territory, but it is also true that it nowhere directly or indirectly prohibits such attaching; and if there be no prohibition directly or by implication, then the act is within the general grant of legislative power. A large portion of the state at the time of the framing of our constitution, consisted of undivided territory, and that the convention contemplated , the existence of such territory without any power in the legislature to provide, through the machinery of courts and the processes of law, for the punishment of crime or the protection of life and property in such territory, is an imputation not to be tolerated. The continuance of such territory was believed to be temporary, and while provision was necessary in the organic instrument for all that was permanent and enduring, it was doubtless thought that the general grant of legislative power was sufficient for all the temporary necessities of the undivided and • unoccupied territory. The grant of power to attach existing though unorganized counties to judicial districts, carries no implication of a denial of power to so attach undivided territory. There is nothing exclusive in such grant, i. e., nothing excluding the exercise of similar-power upon different objects, and under different conditions. It is not like the annexing of certain conditions to the exercise of a right, as in the qualifications of a voter, which by implication prohibits the legislature from attaching other and more burdensome conditions. As was said in the case of Prouty v. Stover, 11 Kas. 256: “To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision.” And surely the attaching of undivided territory to a judicial district in no manner interferes with, trenches upon, or affects the so attaching divided territory. Each may be done, and neither affects the other. But it is said that by § 10 of the bill of rights, an accused is entitled to a trial by a jury of the county or district in which the offense is alleged to have been committed, and that this guaranty is trespassed upon by sustaining the power to so attach. Attaching a county or territory to a district does not make it a part of the district. They are still separate and distinct, though united for certain purposes. The guaranty of a trial by a jury of the county is not sustained by a mere legislative declaration that the county in which the offense was committed is attached to the county in which the prosecution is sought. If it were, then this valuable guaranty of personal right is at the mercy of any legislature, and a party committing an offense in Ford county may be prosecuted in Doniphan county, by simply enacting that the former is attached to the latter for judicial purposes. Waiving any inquiry into the effect upon such an act of the words, “the most convenient judicial district,” in said §19, we remark that the constitution must be so construed as to harmonize its various provisions. Section 19 authorizes the attaching of new or unorganized counties to a judicial district. Said § 10 guarantees a trial by a jury of the county or district. Now to attach a county for judicial purposes, to a district without any power in the district court, to try for an offense committed in such county, would be mere trifling. The power to attach for judicial purposes, carries with it by necessary implication full jurisdiction over the county or territory attached; and the guaranty in §10 must be construed as limited by the power to attach, and the attached territory as a. part of the district within the scope of said § 10.
Again, it is objected that the section is invalid by reason of that provision of §16, art. 11, that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” But we think the matter of said section is not so foreign to the subject expressed in the title — which is “to define the boundaries of the ninth judicial district, and to fix the terms of court in the several counties thereof” — as h> render that constitutional provision applicable. The section is one we might naturally expect to find under such a title. Its provisions are germane to and connected with the subject of the title; and whatever stress may be laid upon the words, “of the title,” as referring strictly to only territorial boundaries and terms of court in existing counties, the subject-matter of this section is not so foreign to it as will justify us In holding it invalid. Whatever question may arise as to any other county, the county of Foote is wholly within the territory named in said §6.
A final objection is, that Ford county was not legally organized at the time of the passage of this act, the pretended organization having been by this court decided to be illegal and void, (State v. Comm’rs of Ford Co., 12 Kas. 441,) and that therefore there was no district court in such county, and it was impossible for the legislature to attach any other county or territory to it for judicial purposes. To. this it may be replied that there was an existing, though as decided an illegal and fraudulent organization, which was in 1874 legalized and made valid by act of the legislature. (Laws 1874, p. 8.) And further, that though the act establishing a district court in Ford county and attaching other territory to it for judi■cial purposes might not have been operative at once for lack of a valid county organization, yet it would become so whenever there was such an organization. There is no inherent vice in such legislation, but only suspended animation. The law is good, even though it amounts to nothing until the actual organization of the county.
We think therefore the petitioner is not entitled to his discharge, and must be remanded to the custody of the sheriff of Ford county; and it is so ordered.
All the Justices concurring.