The opinion of the court was delivered by
This is an original action in quo warranto brought by the state of Kansas on the relation of the attorney general to oust the Kansas Turnpike Authority, hereafter referred to as the Authority, from attempting to exercise the powers and duties purportedly conferred by Laws 1953, Ch. 308, now appearing as G. S. 1953 Supp., 68-2001 to 68-2020 both inclusive, references hereafter being made to the latter under chapter and section number only, for the asserted reasons that the act creating the Authority is unconstitutional.
We need not detail the allegations of the petition nor of the answer of the Authority, it being sufficient to state that they form an adequate basis for the contentions of unconstitutionality as presented in the State’s brief and as hereafter discussed. We note that the petition also alleges that certain proceedings of the Authority had under the act are idtra vires and not authorized by the act and contentions thereunder are later discussed.
The act under attack consists of twenty sections creating the Authority and fixing its powers and duties. In view of the contentions made by the State, it is not necessary that a detailed review
The State presents its contentions that the act in question violates our state constitution under ten titles which will be stated in substance as presented by it, and in the same order. Under Title XI the question of claimed ultra vires acts of the Authority will be considered. Of necessity there is some overlapping of discussion under the several titles.
I.
Does the act violate Art. II, § 1 of the constitution for the reason it constitutes an unlawful delegation of power?
The above section of the constitution provides that the legislative power of this state shall be vested in a house of representatives and senate. The State directs attention to
Johnston v. City of Coffeyville,
We shall not dwell at length on the two decisions last above noted. In the City of Coffeyville case the statute provided for improvement of a county road one-half of which was in the county and one-half of which was in the city, and made detailed specific provision for
The Hines case involved a school district reorganization act. In the course of a long opinion discussion was had of the delegation of legislative power as well as of administrative power, to which reference is made, and it was held that legislative power, as distinguished from administrative power, cannot be delegated unless there is constitutional sanction therefor, and that a delegation of administrative authority must fix a reasonably clear standard which governs the exercise of tire authority.
As originally adopted our constitution provided that the state shall never be a party in carrying on any work of internal improvement. The section was amended in 1920 to provide that the state could aid in the construction of roads and highways under conditions no longer of importance and it was further amended in 1928 by adding to the language first used that the state may adopt, construct, reconstruct and maintain a state system of highways but no general property tax shall ever be laid or bonds issued by the state for such highways. After the amendment, statutes were enacted for financing the state highway system and for the issuance of tax anticipation warrants payable solely from excise tax and were considered in
State, ex rel., v. State Highway Comm.,
Without further discussion, we think it clear that as this court
The constitutional provision for highway construction is not self-executing and requires legislative action. It is apparent that the legislature was not in a position to determine positive location of toll roads or turnpikes, the length of a particular project, and cost of right of way, the over-all cost of construction and all the minutia of facts so that it could pass an act in which nothing was left for future determination. A reading of the act passed makes it clear that any project to be constructed is to be self-liquidating and that no funds resulting from any general tax are to be used for construction, operation or maintenance of any project, and that before a project is undertaken it must be determined that when completed it will earn a revenue from tolls and income arising from operation of the project to pay the principal and interest of the revenue bonds to be issued and sold to raise funds to initiate and complete the project. The act makes it clear the legislature was aware that only intensive studies would reveal whether such a project could be constructed from prospective available funds arising from the sale of revenue bonds and whether a project between termini within the state would be financially feasible and would facilitate vehicular traffic. ' The legislature therefore created the Authority and empowered it to issue revenue bonds payable solely from revenues to pay the cost of a toll road project but it provided that no such project should be undertaken unless and until such project and its proposed location have been thoroughly studied with respect to traffic, engineering cost and financing nor unless the study showed that public funds for construction of a free expressway are not available; that the construction of a toll expressway can be fi
With respect to contentions above stated as to the Authority’s employing experts and others and fixing their compensation and issuing bonds and selling the same at public or private sale no separate argument is made by the State. We know of no constitutional impediment. The question is one within the discretion of the legislature, and the question of the wisdom, justice and expediency of the legislation respecting the above is for that body and not for the courts. See discussion on this phase under Title IV, infra.
With respect to the State’s contention the act authorizes the state highway commission to advance funds to the Authority for preliminary studies without determining the circumstances under which such money shall be'advanced or the extent of the advance, we see little that warrants extended discussion. The act states that to provide for preliminary expenses of the Authority the legislature shall not appropriate any moneys from the state general fund but shall appropriate "such amounts as it may deem necessary” not exceeding $25,000 for any one fiscal year “from the state highway fund.” There is no grant of power to the Authority — what amount is to be appropriated is retained by the legislature. No constitutional question is involved. And see the discussion in Title V, infra.
The Authority, in its brief, directs our attention to decisions from other states wherein validity of statutes with respect to toll roads was upheld. These decisions will not be noted or their constitutional backgrounds discussed for we are of the opinion the matter is
II.
Does the act violate Art. XI, §§ 6 and 7 of the constitution which specifically prohibit the state from contracting a debt unless the proposed law for creating the debt shall be first submitted to a direct vote of the electors of the state?
The argument made under this title is much more limited than its language suggests.
The State in its brief quotes the above constitutional provisions, which need not be set forth at length here. In general they provide that for the purpose of making public improvements the state may contract debts not in
excess
of one million dollars, and that no debt shall be contracted, except as provided, unless the proposed law shall first be submitted to a direct vote of the electors. The State argues that although the act purports to create the Authority as a body politic and corporate, it is an alter ego of the state; that it may sue and be sued in its own name, and although the act provides bonds issued under it shall not be deemed to constitute a debt of the state, the Authority may be sued and a judgment recovered, which judgment is not by the act made payable solely from the revenues of the Authority and would
constitute a
debt of the state; that the state, as a sovereign is immune from suit without its consent,
(Hyre v. Sullivan,
. “By our constitutional provision (art. 11, §8) it is the state which is authorized to construct and maintain a state system of highways. By chapter 225 of the Laws of 1929 the legislature created a highway commission toperform those state functions and provided funds for that purpose. It declared the commission ‘shall be a body corporate, with power to sue and be sued/ thus making it a quasi-corporate body to carry forward the work for the state of constructing and maintaining a state system of highways. (McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651 ,296 Pac. 720 ; Payne v. State Highway Comm.,136 Kan. 561 ,16 P. 2d 509 .) The state has given its consent to be sued by an action against the state highway commission with respect to contracts it is authorized to make or was required to take over. It also has given its consent to be sued for damages under certain circumstances by an action against the state highway commission. (R. S. 1931 Supp. 68-419.) But the state has not given its general consent to be sued for all purposes. (Barker v. Hufty Rock Asphalt Co.,136 Kan. 834 ,18 P. 2d 568 .) The state highway commission is therefore acting for the state in all of its activities authorized by statute for the construction and maintenance of state highways. The funds which it uses for that purpose are state funds, and the warrants it draws on the fund are state warrants, payable, however, from the fund, and are general as they apply to this fund.” (1. c. 917)
The State’s argument does not indicate whether the judgment it states may be recovered is for contract or tort liabilities. Without further discussion we think it may be said that if contract liability is what is meant, the question was laid to rest in the last cited case. If tort liability is meant, it must suffice to say that at no place in the act is there any waiver of the state’s immunity.
The State’s contention that the creation of the Authority as a body corporate and politic with power to sue and be sued constitutes a waiver of immunity cannot be upheld, and unless it be upheld, there is no basis for a contention that a judgment against the Authority would constitute a debt of the state.
III.
Does the act violate Art. XI, § 9 of the constitution in that it purports to make the state a party to the construction of a work of internal improvement?
The State directs our attention to the fact it was stated in
State, ex rel., v. State Highway Comm.,
If the argument is predicated on the proposition the terms “state system of highways” and “state highway system” are synonymous, and that the turnpike project must fail unless it is a part of the state highway system, it cannot be sustained. In
State, ex rel., v. State Commission of Revenue and Taxation,
“We think the phrase, ‘a state system of highways,’ in our constitution (sec. 9, supra) is broad enough to authorize the state to classify all the highways of the state and to provide for their construction and maintenance either by the state or by any of its political subdivisions, or by any combination of them, as it may deem proper. It is well settled that the state, through its legislature, may exercise any governmental powers not granted to federal government and not prohibited by our constitution. (Jansky v. Baldwin,120 Kan. 332 ,243 Pac. 302 ; Lemons v. Noller,144 Kan. 813 ,63 P. 2d 177 .) Certainly the power authorized to be exercised by the constitutional provision was not exhausted by the establishment of the state highway system under G. S. 1945 Supp. 68-406.” (1. c. 247)
Although not argued by the State we think it clear- the legislature had power to create an arm of the state other than the state highway commission to construct a particular type of highway; that the proposed turnpike project is a part of a state system of highways; that its cost is not to be paid by any general property tax nor by bonds to be paid by a general property tax; that it was within the power of the legislature to provide that at a fixed time, the turnpike project will become a part of the state highway system subject to maintenance, operation and control of the state highway commission as the act provides. The State’s third contention is not sustained.
IV.
Does the act violate Art. II, §§ 1 and 3 of the constitution in that it constitutes an unauthorized attempt to confer executive powers upon members of the legislature and to increase their compensation?
The State’s contention is that it is fundamental that all officers who have the appointing power are disqualified for appointment to any office to which they may make appointments (67 C. J. S. pg. 130) and that such a policy is founded upon sound reasoning as it takes away from a legislator any bias or prejudice in his vote
(Mere
dith,
Atty. Gen., v. Kauffman,
We first note that there is no provision of our constitution with reference to the power of the legislature to provide that some one or more of its members shall be ex-officio members of a board, com
20-2201, creating the judicial council of which the chairmen of the judiciary committees of the house and senate are ex-officio members (no salary but are paid necessary expenses);
46-404, creating the Kansas commission on interstate cooperation of which the five members of the senate committee on interstate cooperation and the five members of the like house committee are made members. No provision is made as to salary or expenses;
And see 46-301 et seq. and 46-401 et seq. for other instances where members of the legislature are ex-officio members of councils or boards created;
76-201 et seq., creating a committee to investigate complaints of official misconduct for which five members of the legislature are to be appointed and to receive the per diem and mileage they would be entitled to during the session of the legislature.
And the following instances may be found in G. S. 1953 Supp.:
74-4301 et seq., creating the motor vehicle reciprocity commission of which the chairmen of named committees of the legislature are made ex-officio members and to receive actual expenses but no compensation for services;
75-3601 et seq., creating the state office building commission to which only members of the legislature shall be appointed, and omitting provisions as to expiration of term, they shall not be entitled to any compensation “during any regular or special session of the legislature”;
75-3708, creating the state finance council consisting of six members including the president pro tem of the senate, the speaker of the house and the chairmen of the ways and means committees of the senate and the house, who shall be compensated for time spent in attendance at meetings at the rate of twenty dollars per day and actual traveling and necessary expenses in attending meetings.
In.
McAllister v. Fair,
“The right to determine what is the best policy for the people is in thelegislature, and courts cannot assume that they have a wisdom superior to that of the legislature and proceed to inject into a statute a clause which, in their opinion, would be more in consonance with good morals or better accomplish justice than the rule declared by the legislature. It has been said that ‘the well-considered cases warrant the pertinent conclusion that when the legislature, not transcending the limits of its power, speaks in clear language upon a question of policy, it becomes the judicial tribunals to remain silent.’ (Malinda Deem et al., v. Thomas Millikin et al., 6 Ohio C. C. 357, 360.)” (1. c. 536)
In the recent case of
Noel v. Menninger
Foundation,
“The declaration of public policy is primarily a legislative function though courts have authority to declare a public policy which already exists and to base its decisions upon that ground, but in absence of a legislative declaration before courts are justified in declaring existence of public policy it should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.”
It has been repeatedly held that questions of public policy are for legislative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice or expediency of the legislation is for that body and not for the courts (see West’s Kan. Dig., Const. L. § 70 (3) and Hatcher’s Kan. Dig., Const., L. § 31).
The State’s contention that the act constitutes an unauthorized attempt to confer executive power upon members of the legislature is not extended further than to the appointment of two of its committee chairmen as ex-officio members of the Authority. While the legislature cannot interfere with nor exercise any powers properly belonging to the executive, it may engage in activities which may properly be regarded as incidental to and within the scope of its legislative duties, and it is not an encroachment on the executive for the legislature to create a commission and to designate its members to perform delegable legislative duties. See 16 C. J. S. pg. 332,
et seq.
A power of appointment is not an exclusive function of the executive, nor has it ever been so considered.' The above statutes and many others that could be cited demonstrate it has not been so considered, and if it were fully so this court would be without authority to appoint its own clerk and. reporter. Insofar as the State’s argument that the salary of a legislator is increased beyond constitutional limitations is concerned, it is observed that the compensation paid is not connected with any duty those named persons
We are of the opinion the contention made under this heading cannot be sustained.
V.
Does the act violate Art. II, §§16 and 24 of the constitution for the reason 68-2018 is an appropriation matter not covered by the title of the act as required by Sec. 16 and purports to make an appropriation for a longer period than two years as prohibited by Sec. 24?
The above constitutional provisions cover that no bill shall contain more than one subject, which shall be clearly expressed in its title and that no money shall be drawn from the treasury except in pursuance of a specified appropriation made by law and no appropriation shall be for a longer term than two years. The basis for the short argument made by the State seems to be that the title of the act does not indicate an appropriation and that an appropriation is made by the act (68-2018) for a longer term than two years. Abruptly stated this contention is not good in any of its parts. As previously pointed out the above section of the act states that to provide for preliminary expenses of the Authority in carrying out the act the legislature shall not appropriate any moneys from the state general fund but shall appropriate such amounts as it may deem necessary not exceeding $25,000 per year for any one fiscal year from the state highway fund to be reimbursed when bonds are issued by the Authority. Assuming necessity therefor, the title of the act includes: “providing for tire preliminary expenses of the authority.” That is sufficient. Insofar as any appropriation is concerned it is first observed that any funds of the state highway commission are not raised by or the result of general taxation but are the fruits of levy of special taxes for road and highway purposes under statutes enacted in accord with Art. XI, § 10 of the constitution, all of which are under the general jurisdiction of the legislature for distribution and use for constitutional purposes as it may determine. That such a purpose is to be served is not debatable.
The language of the section does no more than outline a policy to be pursued and in and of itself makes no appropriation whatever. (See
State, ex rel., v. State Highway Comm.,
The State’s contention under this title is not sustained.
VI.
Does the act violate Art. II, § 16 in that the subject matter of the act is broader than the title?
The State’s contention under this title is in a sense supplementary to the contention discussed under Title V. After quoting the section of the constitution that no bill shall contain more than one subject which shall be clearly expressed in its title, the State says it is obvious from reading the title that the reader is not placed on notice of the fact that the state highway commission is involved in any way in the subject matter of the act or that the act relates in any way to the use of funds raised by taxation. No authority is cited in support of the contention. A review of our many decisions bearing on the titles of acts and the subjects of legislation covered is unnecessary. Certain principles applicable here include that the constitutional provision above should not be construed narrowly or technically to invalidate proper and needful legislation
(Philpin v. McCarty,
VII.
Does the act violate Art. XI, § 1 of the constitution in purporting to exempt any turnpike project and bonds issued under the act, their transfer and the income therefrom from taxation within the state?
The above constitutional provision, which need not be quoted, states generally that the legislature shall provide for a uniform rate of assessment and taxation, except that named property and notes and other evidence of indebtedness may be classified and taxed uniformly as to class as the legislature shall provide, and that property used exclusively by named bodies shall be exempt. The argument runs that the attempt to confer tax exemption is unconstitutional because under the act the Authority is empowered to build a highway from Kansas City to Wellington which is not and cannot be of general benefit to the people of the state and by its nature benefits only the sections of the state through which it passes, and is not presently a part of the state highway system. No authority is cited in support of what seems to us to be an argument having nothing to do with exemption from taxation. Insofar as the turnpike projects are concerned, it seems obvious that the Authority cannot, as one project, construct every turnpike which it may be feasible to construct now or in the future, or if that could be done there would be such a project or a series of projects that every citizen of the state would reside in close proximity thereto. An act is not to be denounced because every resident of the state will not receive an immediate benefit. The act is so framed that if the necessary factors as to use and income can be established and the project financed within the terms of the act a project may be constructed at any place in the state. Insofar as exemption from taxation of turnpike revenue bonds held by an individual is concerned, consideration is entirely anticipatory. No bonds have been issued, and no question concerning exemption from taxation is now before us. But as bearing on exemption from taxation of similar bonds see
State, ex rel., v. Kansas Armory Board,
Does the act violate Art. XII, § 4 of the constitution by improperly permitting the vacation or relocation of public roads without prior provision for the payment of damages and costs and by authorizing the taking of immediate possession of property condemned?
The State contends the act violates the above section of the constitution which provides that no right of way shall be appropriated to the use of a corporation until compensation therefor shall be first made or secured by deposit of money to the owner. It is argued that as the Authority has no power of taxation there can be no assurance of payment of compensation for lands taken for the statutory purposes which include acquisition of right of way and change of location of a portion of any public highway, restrictions on the power of change of location being of no present importance. An exhaustive answer to the contention would lead us somewhat afield. Generally it may be said that under 68-2006 lands may be purchased “solely from funds provided under the authority of this act” and if a price cannot be agreed upon, or other specified conditions exist, the Authority is empowered to acquire by condemnation the requisite lands, all such proceedings and compensation to be paid to be in manner provided by the laws of the state which relate to condemnation or the exercise of the power of eminent domain, provided that the title to any property condemned by the Authority shall immediately vest and it shall be entitled to immediate possession upon deposit with the clerk of the court where the proceeding originates of the total amount of the- appraised property and court costs and appraisers’ fees. Provisions for appeal are not now noticed. Under the act as a whole it is abundantly clear that after the initial proceedings have been had and determination has been reached to construct a project, there can be no actual commencement of construction including acquisition of right of way until the necessary revenue bonds have been issued and sold and that funds will be in hand to defray awards and costs in connection with condemnation proceedings, and that this must be the case is deduced from the statutory provisions as to purchase or condemnation which show that purchase can only be made from funds provided by the act and that possession of lands condemned can be taken only after the appraisement, court costs, and appraisers’ fees have been paid into court. Possession of real property taken
IX.
Does the act violate Section 1 of the bill of rights of the constitution as permitting the talcing of property without due process of law?
Under the above heading the State quotes the section of the bill of rights mentioned and also 68-2020 imposing a penalty against a person who uses any turnpike project and fails or refuses to pay the toll provided, and directs our attention to
Britt v. City of Wilmington,
An examination of the above case discloses that it was an action to restrain issuance of parking facility revenue bonds in which space was devoted to whether particular activities were done in a governmental or proprietary capacity, and in which it was said that the criminal processes of the state were available to the city only for the better enforcement of the criminal law and police regulations adopted in furtherance of its functions as a governmental agency of the state, and that a regulation adopted in connection with and in furtherance of an undertaking which is purely proprietary in nature may not be enforced by criminal prosecution. Granting that such a distinction has any merit under our jurisprudence we refuse to now conclude that a turnpike project and its use as contemplated under the act in question are purely proprietary in nature. In any event the inclusion of the penalty section does not destroy the entire act and we do not sustain the State’s contention.
X.
Does the act violate Art. XII, § 1, in that it is a special act conferring corporate power?
The State’s argument under this title is that the turnpike to be constructed is for the purpose of providing a connecting link to the highways of states to the east of Kansas and to constitute a part of a proposed transcontinental highway, and by its very nature the benefits are limited to the area served by the turnpike and, in
In
Board of County Comm’rs v. Robb,
Neither the title to the present act nor anything contained therein is restrictive. The powers therein granted are state-wide and may be exercised at any place in the state or between any locations in the state where preliminary statutory tests are met and the project is feasible thereunder. If this were a case where a taxpayer was objecting because he received no benefit, some discussion would be necessary but that is not the case, for under the statute only the users of the toll road project must contribute to its cost. And see the comment under Title VII.
In our opinion the act may not be denominated as special legislation and we need not discuss the extent to which it confers corporate power.
XI.
Although expressly denying constitutionality of the act under attack, the State contends that if it is constitutional the actions and proposed actions of the Authority are beyond the scope of the powers granted. It may be noted that under 68-2004 the Authority is granted power to adopt bylaws and it has done so and a copy of them is attached to the petition. We have heretofore pointed out that the wisdom, justice, and expediency of the legislation is not for judicial determination. See comment under Titles I and IV. Specific action of the Authority in the future may give rise to a
A review of the entire record convinces this court that the prayer of the petition should be denied and that judgment should be for the defendant and it is so ordered.