Prowant, Administratrix v. Kings-X

347 P.2d 254, 185 Kan. 602, 1959 Kan. LEXIS 454

Opinions

Price, J.,

dissenting: I am unwilling to regard the principle and doctrine of stare decisis as lightly as the majority of my colleagues, and therefore dissent.

With one stroke of the pen, so to speak, the court today strikes down and overrules a long line of consistent decisions construing the statute in question. The McCarthy case was decided in 1877, and during the intervening years the rule there announced has been attacked and challenged on numerous occasions but has been adhered to consistently by the many able judges who have sat on this court and reconsidered the question. Under the circumstances, therefore, such construction must be considered to be the settled law of this state until changed by the legislature.

The fundamental basis of the doctrine of stare decisis is that for the sake of certainty and stability in the law a conclusion reached in one case should be applied to succeeding cases if the facts and questions are substantially the same, to the end that those who are bound by it may rely upon it. The application of the doctrine is essential to the maintenance and performance of a well-ordered system of jurisprudence, making it possible for trial courts to adjudicate controversies in reliance on decisions of this court rather than be subjected to the uncertainties brought about by changes in personnel of the court.

The question being one of statutory construction consistently adhered to for eighty-two years, a change, if any is to be made, should be by the legislature and not this coqrt.