§ 3) gives the supreme court "such appellate jurisdiction as may be provided by law," for the quoted clause does not contemplate its exercise, upon appeal, of any but judicial powers. State v. Atchison, T. & S. F. R. Co. 6 Kan. 500, 7 Ám. Rep. 575.

A typical situation is presented for the application of the declaratory judgment act. There is a present controversy between the parties, the defendant claiming the right to perform the duties of the office to which he has been elected, and the plaintiff denying that right. The controversy is actual, not moot; concrete, not abstract. An interpretation of the statute concerning ineligibility is not the ultimate object of the suit, but is a necessary step in determining whether the defendant is entitled to act as city commissioner. That question, under the ordinary procedure, could only be judicially decided after the defendant had assumed the duties of the office, thereby exposing himself to punishment by both fine and imprisonment. Even if injunction would lie to prevent his acceptance of the office, such relief would be unnecessary. In the remote contingency of his desiring to occupy the office after his ineligibility had been determined, the statutory penalty would exercise a sufficient restraining influence. The decision when announced is not merely advisory. It is a final adjudication having the binding force of any other judgment. If, after its being adjudged that the defendant is disqualified, he should undertake to hold the office, and the state should bring a proceeding to oust him, the only matter open to inquiry would be whether he was actually holding it; he could not be heard to raise any issue of either law or fact going to the question of his eligibility, and this results from the principle of res judicata, and not from that of stare decisis.

2. The statute which the plaintiff regards as rendering the defendant ineligible reads as follows: "No of

ficer, employee, agent or servant or stockholder in any corporation, firm, company or person holding or operating under any franchise granted by such city, including street and other railways, telephone companies, electric light companies or gas companies, or having any contract with such city, shall hold any city office; and no officer or employee of such city shall accept or hold any office in or employment by such corporation, firm, company or person seeking to acquire any such contract or franchise; and any person violating any of the provisions of this section shall thereby vacate his office and be fined not less than five hundred dollars nor more than one thousand dollars, and imprisoned in the county jail not less than six months nor more than one year." Gen. Stat. 1915, § 1556.

The Missouri Pacific Railroad Company uses certain streets and alleys in Wichita under ordinances. granting it the right to occupy them with its tracks on condition of its conforming to certain requirements. The defendant is employed by the company as a boiler maker. He contends that the rights acquired by the company under the ordinances referred to are not "franchises" within the meaning of the term as used in the statute, and that the relations between the city and the company with respect thereto are not contractual.

It is said that legislative disqualifications to hold office are strictly construed against the claim of inelegibility. 29 Cyc. 1380, 1381. Whether that be true otherwise than where the statute is penal or adds to requirements of the Constitution need not be determined. The primary rule of construction is to ascertain and give effect to the real purpose of the legislature, and that will prove sufficient here.

The word "franchise" is often used in such sense as not to include the grant by a city to a railway company of a right of way over its streets. McPhee & McG. Co. v. Union P. R. Co. 87 C. C. A. 619, 158

Fed. 5. This court, however, has held that "franchise" in the quo warranto statute is to be interpreted as covering a right of that character acquired in that manner. Olathe v. Missouri & K. Interurban R. Co. 78 Kan. 193, 96 Pac. 42. The statute now under consideration refers explicitly to franchises granted by a city to railway corporations. The rights ordinarily given by a city to such companies are of the kind granted by the ordinances here involved. And, inasmuch as the term "franchise" is a proper one by which to describe them, the fair conclusion is that they are the sort of rights the legislature had in mind when it used the word.

The defendant also argues that, if the rights granted by the ordinances referred to are regarded as franchises, they are void because of the provision of the statute limiting the duration of franchise granted by the city to twenty years, and making other requirements which have not been met. Gen. Stat. 1915, § 1661, subd. 2. The limitation appears to apply to contracts, grants, rights, and privileges as well as franchises. The statute, however, contains a provision expressly excepting from its operation grants of "sidetrack or switch privileges to railway companies for the purpose of reaching and affording railway connections and switch privileges to the owners or users of any industrial plants." Id. subd. 7. Several of the ordinances in question contain express recitals showing that their grants are of that character, and in others that inference may reasonably be drawn.

Most of the ordinances by their terms required an acceptance by the railway company before becoming effective. The defendant, however, argues that no contract resulted, because no obligations were imposed on the company and there was a want of mutuality. Provisions to the following effect are made in one or more of the ordinances: Under certain conditions the railway com

Office-dis

city.

pany is to pave the right of way in accordance with plans made by the city engineer; the company is to furnish such protection to the traveling public as the board of commissioners shall from time to time direct; the company is to maintain a driveway for the traveling public and a cement sidewalk by the side of a certain track or spur; the company is to hold the city harmless from claims for damages occasioned by its occupancy of the street; the city may compel the observance of the conditions laid down at any time it may elect. Some of the provisions relating to the conduct of the railway company may be mere expressions of legal obligations that would in any event be implied. But others are quite clearly contractual. The defendant's disqualification results from the plain and unambig- qualificationuous language of employee of the statute. It is also as clearly within the purpose and spirit of the act. The legislature obviously proceeded upon the assumption that a corporation holding a franchise from or contract with the city was likely, by reason thereof, to be drawn into controversy with it, and that a city officer who was required to take some action in relation to the matter, if he were an employee of the company in any capacity, might be influenced in his conduct by that circumstance. The provisions of the ordinances described are of such character that a dispute might readily arise out of conflicting interests, and the connection of a member of the commission with the company might prove an Whether that embarrassment. probability is strong enough to render it expedient to make such relationship an absolute disqualification is, of course, a matter for the legislature to determine.

For the reasons stated, the judgment of the court has been rendered, declaring the defendant disqualified to hold the office of city commissioner.

I. In general, 1124.

II. Distinction between declaratory orders or judgments and judgments giving consequential relief, 1124.

III, Declaratory orders or judgments: a. In general, 1124.

b. Constitutionality of statutes permitting declaratory judgments:

1. In general, 1124.

2. As affected by question of exercise of judicial func

tion, 1125.

[No later decisions herein.]

IV. Under English and colonial practice

acts and orders:

a. In general, 1125.

b. Relief as being discretionary, 1127.

c. Necessity of bona fide controversy as to which judgment will be res judicata, 1127.

V. Illustrative cases:

a. In general, 1130.

b. Matters relating to estates and
trusts:

1. Management of, 1130.
2. Distribution, 1130.

This annotation supplements an annotation on the same subject, reported in 12 A.L.R. 52.

1. In general.

See 12 A.L.R. 53.

II. Distinction between declaratory orders or judgments and judgments giving consequential relief. See 12 A.L.R. 53.

III. Declaratory orders or judgments. a. In general.

See 12 A.L.R. 55.

b. Constitutionality of statutes permitting declaratory judgments.

1. In general. (Supplementing annotation in 12 A.L.R. 57.)

As appears in the note in 12 A.L.R. 52, the right of the lawmaking power to impose upon or vest in courts

V. continued.

c. Construction and validity of in

struments:

1. Wills, 1130.

2. Contracts, 1131.

3. Leases; landlord and tenant
generally, 1131.

4. Insurance policies, 1131.
5. Bill of sale, 1132.

[No later decisions herein.] 6. Mortgages and deeds of trust, 1132.

7. Assignments, 1132.

d. Construction and validity of statutes, 1132.

e. Title to real and personal prop

erty, 1133.

ee. Vendor and purchaser, 1134. f. Life tenants, 1134.

[No later decisions herein.] g. Husband and wife, 1135. h. Legitimacy, 1135.

[No later decisions herein.] i. Employer and employee, 1135. ii. Attorney and client, 1135. j. Private associations and corporations, 1135.

k. Public authorities, 1136.

1. Easements, 1136.

m. Taxation, 1137.

n. Miscellaneous, 1137.

the authority to make judgments merely declaratory of the rights of litigants, without giving any consequential relief, has been questioned. And in Anway v. Grand Rapids R. Co. reported in 12 A.L.R. 26, the power of the legislature in this regard is denied. In this respect, the opinion of the majority of the court going further than was required by the actual question presented. Additional light is thrown upon the question by the case of STATE EX REL. HOPKINS V. GROVE (reported herewith) ante, 1116, which sustains the constitutionality of a statute, not materially different from the one involved in the Anway Case, unless it is that the Kansas statute provides for declaratory judg ments in actual controversies, while by the Michigan statute such judgments are in effect authorized in actions or proceedings.

2. As affected by question of exercise of judicial function.

No later decisions herein. For earlier cases, see 12 A.L.R. 63.

IV. Under English and colonial practice acts and orders.

a. In general. (Supplementing annotation in 12 A.L.R. 65.)

It is apparently settled under the English practice acts and orders that the right of the courts to make declaratory judgments is not dependent upon any right in the parties to the litigation to consequential relief.

In Simmonds v. Newport Abercarn Black Vein Steam Coal Co. (1921) 124 L. T. N. S. (Eng.) 557, in discussing the question of jurisdiction under order XXV. rule 5, to make a declaration as to the duty of the employer of a minor to make a statement of the manner in which his wages are made up, in compliance with an act requiring employers to make such statement, the court said: It is "argued that there was no jurisdiction under order XXV. rule 5, to make the declaration claimed, because, as he said, the court cannot grant relief in the matter in dispute between the parties. The words of the rule are: 'No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not.' I do not follow the argument that the court cannot grant relief in the matter in dispute, unless it means that the appellants do not propose to act upon any declaration made in favor of the respondent; but surely a declaration by the High Court of Justice of a plaintiff's rights in a dispute between him and his employer is of itself a granting of relief at least as great as a conviction of the employer in a court of summary jurisdiction. With regard to the jurisdiction of the High Court, in Guaranty Trust Co. v. Hannay [1915] 2 K. B. (Eng.) 562, 12 A.L.R. 1, 113 L. T. N. S. 98, [1915] W. N. 131, 84 L. J. K. B. N. S. 1465, there is a passage in the

Sub

judgment of the present master of the rolls, then Pickford, L. J., which has already been mentioned. There is also a passage, in my judgment, which seems appropriate, and I therefore repeat it. After saying that, in my opinion, it is open to the court to grant a declaration in any case in which the person claiming the declaration can be said to be seeking relief, I went on: 'What is meant by this word "relief"? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action, it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant, or contrary to the accepted principles upon which the court exercises its jurisdiction. ject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief; and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors, I think the rule should receive as liberal a construction as possible.' It is said that in Thomas v. Moore [1918] 1 K. B. (Eng.) 567, 118 L. T. N. S. 298, 87 L. J. K. B. N. S. 577, Pickford, L. J., went back from what he had said in the former case. Thomas v. Moore (Eng.) supra, he said: 'I have never heard of a declaration that a defendant is doing wrong, unless it is followed by a statement that either damage has accrued or is likely to accrue, and that the defendant threatens to continue his wrongful act against the plaintiff.' Those words were very applicable to the facts in that case, but the lord justice did not intend to go back on anything that had been said in Guaranty Trust Co. v. Hannay (Eng.) supra, a case which has been lately approved in this court in Barwick v. Southeastern & C. R. Co. [1921] 1 K. B. (Eng.) 187, 124 L. T. N. S. 71, [1920] W. N. 333, 90 L. J. K. B. N. S.

In

377, 85 J. P. 65, 18 L. G. R. 757. In my opinion the court has jurisdiction to make the declaration, and Bray, J., exercised a wise discretion in granting it."

In the same case Atkin, L. J., said: "As to the form of action, I have no hesitation in saying that this is precisely the kind of case in which the court has power to grant relief by way of declaratory judgment, and I should be very sorry to cut down a jurisdiction which is a most valuable addition to the existing powers of the court. The court has power to make

a declaration whenever it is just and convenient; and if it is just and convenient, as I think it is in this case, the plaintiff should not be driven to take a course which does not secure the performance of this right or the remedy for the breach of it, but merely leads to the possible conviction of the appellants for an offense before a court of summary jurisdiction."

In Ex parte Malone (1921) 124 L. T. N. S..(Eng.) 217, Darling, J., said: "There is a very great difference between the position of the High Court and the position of a county court. In the High Court the plaintiff may ask for an injunction or a declaration simpliciter, not coupled with anything else, and it may be a declaration which is perfectly useless at the time when it is given, but which may be valuable in the future. The jurisdiction of a county court is very different in this regard from that of the High Court. The county court, by reason of § 56 of the County Courts Act 1888, is not at all upon the same plane as the High Court. In the county court the jurisdiction is confined to personal actions, where the debt, demand, or damage 'claimed' is, not more than £100. If the only possible claim is for an injunction or a declaration simpliciter, it cannot be entertained by the county court. It must be coupled with a right to make another claim which is within the jurisdiction of the county court. Now, it is said that in the present case the plaintiff's claim for an injunction and a declaration was not coupled with the right to make any other claim at all, although a claim

for an injunction or a declaration must be coupled with something that comes within the words 'debt, demand, or damage claimed.' What is claimed must be something that can be legally claimed. It would not be enough to claim that which the court could not possibly grant. In the course of the argument my brother Avory put the case of a claim for damages for nonrepair of a highway. Or, again, a plaintiff might sue a defendant for £100, on the ground that the defendant was a rich man, but the plaintiff was a poor man, and might ask for a declaration that the defendant owed him this sum of £100. That would be a 'claim,' but it could not possibly be good in law, and my difficulty is to see how the claim ultimately made by the plaintiff in the present case could be good in law."

In Rex v. Cheshire County Ct. Judge (1921) 90 L. J. K. B. N. S. (Eng.) 772, Lord Sterndale, M. R., in considering the question whether the county court had jurisdiction to make a declaration, said: "The jurisdiction of the county court is derived from the County Courts Act of 1888, § 56, and the Act of 1903. . . Therefore, the jurisdiction, so far as this case is concerned, is limited to a personal action where the debt, demand, or damage claimed is not more than £100. Then, by the Supreme Court of Judicature Act 1873, § 89, it is provided [that every inferior court which now has or which may, after the passing of this act, have jurisdiction in equity or at law and in equity and in admiralty respectively, shall, as regards all causes of action within its jurisdiction for the time being, have power to grant, and shall grant in any proceeding before such court, such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall in every such proceeding give such and the like effect to every ground of defense or counterclaim equitable or legal . . . in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice]. So that the powers conferred by that section of the Judicature Act