majority">

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is: Are the provisions of the statute entitled, “Proceedings in Aid of Execution,” and found on pages 724, 725, 726, 727, and 728 of the General Statutes of the State of Kansas, constitutional and valid in so far as they attempt or purport to confer upon the probate judge power, authority or jurisdiction to issue the process, entertain such proceedings, make'the orders, and punish their disobedience, as is provided for in the sections *100of the statutes found on the pages above mentioned ? Can a probate judge be invested with judicial functions as to cases pending in the district court? This really separates itself into two questions: Can a probate judge receive other judicial powers than those granted by the constitution to the probate court? and can judicial functions, as to cases pending in the district court, be granted to any person other than the duly-elected judge thereof? The first question is no longer an open one in this court, but has been already answered in the affirmative. In re Johnson, 12 Kas., 102, and cases cited in opinion. The second question must also be answered in the affirmative. The jurisdiction of the district court is not defined by the constitution. It is left to the legislature to prescribe its limits, and the manner of its exercise. While it may be that, under § 5 of article 3 of the constitution, it is impossible for the legislature to provide for more than one judge of a district court, and while it may be that no legislation could be upheld which excluded such single judge from a supervisory control of all the proceedings of that court, yet, within this limit, we think it competent for the legislature to provide that other persons may exercise some judicial functions in cases pending therein. Thus, the legislature has authorized the trial of certain cases before referees. No question has been, none can well be made, as to the validity of such legislation. Yet here is an officer other than the judge who is exercising judicial functions in cases in that court. So also, at common law the sheriff exercised judicial functions. The sheriff’s jury, to assess damages, was an every-day occurrence. And in proceedings before such jury the sheriff acted as a quasi judge. In our own proceedings under the occupying-claimant act may be found something of the same nature. To require of the judge the performance of all these duties, because judicial in their nature, would so burden him as to work a great hindrance to the dispatch of business, and the trial of cases. Now, these proceedings in aid of execution are of this same subordinate nature. It has been claimed that they were a substitute for *101and equivalent to the old creditor’s bill. While in many respects they resemble, yet they are far from being exactly similar. See opinion of Denio, J., in the case of Hayner v. James, 17 N. Y., 316. They are based upon a judgment already obtained. They are proceedings to aid in its collection, proceedings resulting from the inability of the sheriff to accomplish such collection by means of ordinary execution. They are simply means to reach all the property of the debtor, and apply the same to payment of a debt whose existence has been already judicially determined. It needs but a little reflection to perceive, that, no matter how wide may be the scope of these proceedings, they are of a subordinate nature. Judicial functions in such matters may, it seems to us, be granted by the legislature to officers other than the regularly-elected judge, subject of course to his supervisory control. This determines the case, and the judgment of the district court must be reversed, and the case remanded for further proceedings.

All the Justices concurring.

Citation profile

How this case has been treated — in progress