26 Kan. 724 | Kan. | 1882
The opinion of the court was delivered by
The only question involved in this case is with reference to the validity of chapter 20, of the laws of 1879, (p. 19,) passed by the legislature of the state of Kansas, on March 8, 1879, making appropriations for the state fish commissioner for the years ending June 30, 1880, and June 30, 1881; but it is claimed by counsel on both sides that involved in this main question is this further question, whether the house of representatives of the state of Kansas can ever, under any circumstances, exceed in number one hundred and twenty-five members; and this latter question, with the questions necessarily involved in it, is the only question which they desire to present to us, or to have us consider or decide.
From the admission of the state of Kansas into the union, on January 29, 1861, up to November-4, 1873, the following constitutional provisions, to wit, sections 2, 8, 10, 13, 14 and 26, of article 2, and sections 1 and 2, of article 10, were in force, as follows:
“ Sec. 2. The first house of representatives under this constitution shall consist of seventy-five members, who shall be chosen for one year. The first senate shall consist of twenty-five members, who shall be chosen for two years. After the first election, the number of senators and members of the house of representatives shall be regulated by law; but shall never exceed one hundred representatives and thirty-three senators.”
“Sec. 8. A majority of each house shall constitute a quorum. Each house shall establish its own rules, and shall
“Sec. 10. Each house shall keep and publish a journal of its proceedings. The yeas and nays shall be taken and entered immediately upon the journal, upon the final passage of every bill or joint resolution. . . .”
“Sec. 13. A majority of all the members elected to each house — voting in the affirmative — shall be necessary to pass any bill or joint resolution.
“Sec. 14. Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve it, he shall sign it. . . .”
“Sec. 26. The legislature shall provide for taking an enumeration of the inhabitants of the state, at least once in ten years. The first enumeration shall be taken in A. D. 1865.”
“Section 1. In the future apportionment of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.
“Sec. 2. It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.”
Soon after the state was admitted into the union, proper laws were passed for taking the census of the state, and similar laws have been in force ever since, and the legislature has made apportionments in accordance with §§ 1 and 2 of article 10 of the constitution, basing the apportionment each time upon the census of the preceding year.
On March 3, 1871, the legislature of the state of Kansas passed an act, making an apportionment for members of the legislature of the state of Kansas, § 1 of which act reads as follows:
“Section 1. That the senate shall consist of thirty-three members, and the house of representatives of ninety members, but the number of representatives may be increased by the ■organization of new counties to not more than one hundred:
Section 3 of the above-mentioned act apportions all the organized counties of the state into representative districts, making ninety districts; and § 5 gives to each representative district one representative.
On November 4, 1873, § 2 of article 2 of the constitution was amended so as to read as follows:
“Sec. 2. The number of representatives and senators shall be regulated by law, but shall never exceed oue hundred and twenty-five representatives and forty senators. From and after the adoption of the amendment, the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the-next preceding general election; and each organized county in which less than two hundred legal votes were cast at the-next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.”
The other sections of the constitution above quoted still remain in force, as above quoted, unless they have been modified or changed by the amendment of § 2 of article 2 of the-constitution, as above quoted.
On March 2, 1876, the legislature of the state of Kansas passed another act, making an apportionment for members of the legislature of the state of Kansas, basing such apportionment on the census of the previous year; section 1 of which act reads as follows:
“Section 1. That the senate shall consist of forty members, and the house of representatives of one hundred and twenty-three members; but the number of representatives-may be increased by the organization of new counties to not more than one hundred and twenty-five: Provided, That no county not now organized shall be entitled to more than one representative until the next apportionment.” (Laws of 1876, P-7.)
By § 3 of this act, the legislature apportioned all the organized counties of the state, easting at least 250 votes at the last preceding general election, into one hundred and twenty-three
At the session of the legislature in 1877, there were one hundred and twenty-seven persons admitted as members of' the house of representatives, one hundred and twenty-three of which were admitted as members from the one hundred and twenty-three representative districts provided for by the apportionment of 1876, and the other four were admitted to-represent the counties of Edwards, Barbour, Rooks and Rush, respectively.
At the session of the legislature in 1879, there were one-hundred and twenty-nine persons admitted as members of the house of representatives, one hundred and twenty-three of which being admitted to represent the one hundred and twenty-three representative districts provided for by the apportionment of 1876, and the other six being admitted to-represent the counties of Edwards, Barbour, Rooks, Rush, Harper and Kingman, respectively. All these one hundred and twenty-nine persons were admitted as members by the house of representatives, without any action of the senate,, and without any further law being passed, and were admitted in the order in which we have mentioned them ; and the-facts were such that they were all entitled to be admitted as-members, provided the house of representatives could then, under § 2 of article 2 of the constitution, and under the laws-then in force, consist of one hundred and twenty-nine members.
On March 8, 1879, the legislature, as then constituted, passed the act now in controversy, making the said appropriation for the state fish commissioner; and upon the final vote-taken in the house of representatives upon the passage of this act, the act received only sixty-six affirmative- votes, and these sixty-six votes included the votes of the members from
The amount appropriated by this act was $500 for the fiscal year ending June 30, 1880, and $500 for the fiscal year ending June 30, 1881. No question was raised as to the validity of this act until December 25, 1880. The fish commissioner at various times and in various sums drew the full ■amount that was appropriated for the year ending June 30, 1880, and also at various times and in various sums drew the full amount that was appropriated for the year ending June -30, 1881, except the amount of $34.15. The record of this •case, however, shows that this amount was $41.50.
On December 22, 1880, the auditor of state drew his warrant on the defendant as state treasurer in favor of the fish ■commissioner for the sum of $34.15, that sum being all that was then left not drawn of the appropriation made by the said act; and the defendant, as state treasurer, was about to pay said warrant out of the moneys in his custody belonging to the state of Kansas as a part of the general revenue fund, when this action was begun in the district court of Shawnee county, on December 25, 1880. The object of the •action is to restrain the defendant, as state treasurer, from paying said warrant. The case was decided in the district court on December 31, 1880, in favor of the defendant. Afterward, and on February 3, 1881, a case for the supreme court was made, settled and signed in the district court, and ■on February 5, 1881, the case thus made, settled and signed, was filed in the supreme court. On June 7, 1881, the case was submitted to the supreme court for its decision, but as
The first question properly arising in this case is, whether or not the enrolled statute embodying the act in controversy is conclusive evidence of the regularity of the passage of the act, and of its validity. In many of the states of this union it is held that the enrolled statutes are conclusive evidence of the due passage and validity of the acts purporting to be embodied in them. See authorities cited in the case of the Division of Howard County, 15 Kas. 211; and State v. Swift, 10 Nev. 176, cited in the case of Comm’rs of Leavenworth County v. Higginbotham, 17 Kas. 78. If it should be held that the enrolled statute is conclusive evidence of the validity of the act embraced in it, that would end this case; for if the act is valid, the plaintiff certainly has no cause of action. But the defendant’s counsel do not raise this question. They apparently admit that if the house of representatives cannot consist of over one hundred and twenty-five members, then the act in controversy is void, and that the plaintiff has a good cause of action. In our opinion, the enrolled statute is very strong presumptive evidence of the regularity of the
Also, as these six persons were entitled to seats in the legislature, unless the house of representatives cannot consist of more than one hundred and twenty-five members, and as there were not one hundred and twenty-five members in the aggregate present and voting for and against the act in controversy, then were not the votes of these six persons entitled to be counted ? It seems to be admitted that the votes of the representatives from Edwards and Barbour counties should be
Any construction of the first and second clauses of § 2, article 2 of the constitution, which would allow the house of representatives to consist of more than one hundred and twenty-five members, would limit the operation of such clauses, pervert their meaning, and render them, partially at least, nugatory. Any such construction of these clauses would be •virtually saying that the people of Kansas, when they adopted this amendment, said at one and the same time that the number of representatives “ shall never exceed one hundred and twenty-five,” and also that the number of representatives may exceed one hundred and twenty-five. And further, the first clause of this section says that “the number of representatives and senators shall he regulated by law.” Now, if only a portion of the number of representatives should be regulated by law, (that portion, for instance, coming from representative ■districts created at the time of making the general apportion
The judgment of the court below will therefore be reversed, and the cause remanded for further proceedings.