Coleman v. Miller

Decision Date16 September 1937
Docket Number33459.
PartiesCOLEMAN et al. v. MILLER, Secretary of Senate, et al. [*]
CourtKansas Supreme Court

Syllabus by the Court.

The Lieutenant Governor of Kansas is prohibited by the State Constitution from voting as member of the Senate on final passage of bills and joint resolutions, though Senate is equally divided (Const. art. 1, § 12; art. 2, § 13).

Where Kansas Senate, in voting on proposed child labor amendment to the Federal Constitution, was evenly divided, the Lieutenant Governor was entitled to cast deciding vote, despite constitutional provision that majority of all members of each House, voting in the affirmative, should be necessary to pass any bill or joint resolution, since proposed child labor amendment was not an "act of legislation having force of law," but merely expression of assent of Legislature to proposed amendment (Senate Concurrent Resolution No. 3; Const.U.S. Proposed Child Labor Amendment [see 43 Stat. 670]; Const. art. 2,§ 13).

A State Legislature which has rejected an amendment proposed by Congress may later reconsider its action and give its approval, and ratification once given cannot be withdrawn.

The Kansas Legislature had power to act on the proposed child labor amendment to the Federal Constitution, though Legislature had rejected proposed amendment 12 years before and such act of ratification was final and complete (Senate Concurrent Resolution No. 3; Laws 1925, c. 191; Const. U.S Proposed Child Labor Amendment [see 43 Stat. 670]).

Proposed child labor amendment to Federal Constitution, which was proposed by Congress by resolution adopted on June 2, 1924 had not lost its potency by old age when Kansas Senate by resolution ratified it on February 15, 1937, and resolution of Senate was valid and binding (Senate Concurrent Resolution No. 3; Const.U.S. Proposed Child Labor Amendment [see 43 Stat. 6701].

1. Upon the passage of a bill or joint resolution, where the Senate is equally divided, the Lieutenant Governor, under section 12 of article 1, and section 13 of article 2 of the Constitution, is not entitled to vote.

2. Where, upon the passage of a Senate concurrent resolution ratifying the proposed child labor amendment to the Constitution of the United States, the Senate was equally divided, it is held that as such measure was not an act of legislation having the force of law, but a mere expression of assent of the Legislature to the proposed amendment, under the above sections of the Constitution of Kansas, the Lieutenant Governor was entitled to cast the deciding vote on such concurrent resolution.

3. Where the Legislature has rejected an amendment to the Constitution of the United States proposed by Congress, it may later reconsider its action and give its approval to such proposed amendment.

4. The child labor amendment to the Constitution of the United States, proposed by Congress by resolution adopted by that body on June 2, 1924, retained its vitality as a proposed amendment, and the action of the State Senate on February 15 1937, in adopting the senate concurrent resolution ratifying such proposed amendment was valid and binding.

Original proceeding in mandamus by Rolla W. Coleman and others, as members of the State Senate and members of the House of Representatives, against Clarence W. Miller, as Secretary of the Senate, and others, to compel erasure of an indorsement to the Child Labor Amendment Resolution to effect that resolution was adopted by the Senate, and to compel indorsement thereon the words: "Was not passed."

Writ denied.

HUTCHISON, J., dissenting.

Rolla W. Coleman, of Olathe, and Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, for plaintiffs.

E. R. Sloan, of Topeka, for William N. Lindsay, Lieutenant Governor.

C. V. Beck, Atty. Gen., and Payne H. Ratner, of Parsons, for Frank J. Ryan, Secretary of State.

Harry Fisher, of Fort Scott, J. S. Parker, Asst. Atty. Gen., and C. V. Beck, of Topeka, for H. B. Buzick, Speaker of the House, and W. T. Bishop, Chief Clerk.

ALLEN Justice.

This is an original proceeding in mandamus brought by twenty-one members of the State Senate and three members of the House of Representatives to compel Clarence W. Miller, Secretary of the State Senate, to erase an indorsement on Senate Concurrent Resolution No. 3 (generally known as the Child Labor Amendment Resolution) to the effect that the same was adopted by the Senate, and to compel him to indorse thereon the words: "Was not passed."

There is no dispute as to the facts. On June 2, 1924, the Sixty-Eighth Congress of the United States proposed the following amendment to the Constitution of the United States:

"Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.
"Sec. 2. The power of the several States is unimpaired by this article except that the operation of the State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress."

On January 13, 1937, a resolution known as "Senate Concurrent Resolution No. 3" was introduced into the State Senate. This resolution, after the preamble setting forth the joint resolution of Congress in proposing an amendment to the Constitution of the United States, commonly known as the Child Labor Amendment, provided:

"Be it resolved by the Senate of the State of Kansas, the House of Representatives concurring therein, that the foregoing and above recited amendment to the constitution of the United States be, and the same is hereby ratified by said legislature of the state of Kansas as a part of, and amendment to, the constitution of the United States."

On February 15, 1937, this resolution came up for consideration in the Senate, and upon roll call twenty Senators voted against the adoption and twenty Senators voted in favor of the adoption of the resolution. Thereupon W. M. Lindsay, the Lieutenant Governor of the State, the presiding officer, over the protest of one of the Senators, cast his vote in favor of the adoption of the resolution.

As stated, this proceeding in mandamus was brought to compel the Secretary of the Senate to erase the indorsement on the resolution that the same was passed, and to make an indorsement thereon that it had not passed.

An alternative writ was allowed and answers filed by all the defendants except the State of Kansas.

At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that on March 30, 1937, the State Senate adopted a resolution directing the Attorney General to appear for the State of Kansas in this action. It further appears that on April 3, 1937, on application of the Attorney General an order was entered making the State of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. G.S.1935, 75-702; State ex rel. v. Public Service Comm., 135 Kan. 491, 11 P.2d 999.

Plaintiffs contend: First, the amendment was not ratified by the Senate because the Lieutenant Governor was not a member of the Senate and had no right to vote; that the resolution did not receive a vote of a majority of the members of the Senate and was lost; Second, when the Legislature, on January 30, 1925 (Laws 1925, c. 191), adopted a resolution to reject the amendment and filed notification thereof with the Secretary of State, it exhausted its power with reference to the proposed amendment.

Did the Lieutenant Governor have the right to cast the deciding vote on Senate Concurrent Resolution No. 3, when the Senate was equally divided? In the solution of this question we first look to the Constitution of the United States.

Article 5 of the Constitution of the United States provides:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

It is settled beyond controversy that the function of a State Legislature in ratifying a proposed amendment to the Constitution of the United States, like the function of Congress in proposing an amendment, is a federal function derived from the Federal Constitution; and it transcends any limitation sought to be imposed by the people of a state. The power to legislate in the enactment of the laws of a state is derived from the people of the state, but the power to ratify a proposed amendment to the Federal Constitution has its source in that instrument. The act of ratification by the state derives its authority from the Federal Constitution to which the state and its people alike have assented. Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505; Hawke v. Smith, 253 U.S. 221, 40 S.Ct. 495, 498, 64 L.Ed. 871, 10 A.L.R. 1504; State of Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946.

If the Legislature in ratifying a proposed amendment is performing a federal function, it would seem to follow that...

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7 cases
  • Coleman v. Miller
    • United States
    • U.S. Supreme Court
    • June 5, 1939
    ...of the proposed amendment by the Legislature of Kansas was final and complete'. The writ of mandamus was accordingly denied. 146 Kan. 390, 71 P.2d 518, 526. This Court granted certiorari. 303 U.S. 632, 58 S.Ct. 758, 82 L.Ed. First.—The jurisdiction of this Court.—Our authority to issue the ......
  • State ex rel. Anderson v. Fadely
    • United States
    • Kansas Supreme Court
    • March 5, 1957
    ...but the lieutenant governor is not entitled to vote on a bill or joint resolution where the senate is equally divided, Coleman v. Miller, 146 Kan. 390, 71 P.2d 518. 9. By Art. 1, § 13, if the lieutenant governor, while holding the office of the governor, shall be impeached or otherwise beco......
  • State ex rel. Sanstead v. Freed
    • United States
    • North Dakota Supreme Court
    • February 21, 1977
    ...225 A.2d 481 (Del.1966); State ex rel. Easbey v. Highway Patrol Board, 140 Mont. 383, 372 P.2d 930 (1962); Coleman et al. v. Miller, 146 Kan. 390, 71 P.2d 518 (1937); and Kelley v. Secretary of State, 149 Mich. 343, 112 N.W. 978 (1907). 3 All four of these cases applied the same rules of co......
  • Moore v. Shanahan
    • United States
    • Kansas Supreme Court
    • March 11, 1971
    ...and in Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. den. 382 U.S. 894, 86 S.Ct. 185, 15 L.Ed.2d 150. See, also, Coleman v. Miller, 146 Kan. 390, 71 P.2d 518, affirmed 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385, where it was held that individual members of the Senate had the right to ......
  • Request a trial to view additional results

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