Bailey v. Kelly

• Decision Date: 11 February 1905
• Docket Number: 14,270
• Citation: 79 P. 735,70 Kan. 869
• Parties: W. J. BAILEY, as Governor, etc., v. T. T. KELLY, as State Treasurer, etc
• Court: Kansas Supreme Court

79 P. 735

70 Kan. 869

W. J. BAILEY, as Governor, etc., v. T. T. KELLY, as State Treasurer, etc

No. 14,270

Supreme Court of Kansas

February 11, 1905

Decided January, 1905.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

APPROPRIATION FOR EXECUTIVE RESIDENCE--Act of 1903 Construed. The act of 1903, appropriating money for maintaining the executive residence, does not authorize the employment of any part of the sum so appropriated for the purchase of provisions to be used there. If given such construction, the act would, to that extent, be in contravention of the constitutional prohibition against increasing the compensation of the governor during his term of office, and therefore void.

Loomis Blair & Scandrett, and Frank Doster, for plaintiff in error.

Gleed, Ware & Gleed, and F. Dumont Smith, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

This is an original proceeding in mandamus brought to require the state treasurer to countersign a warrant for $ 162.89, issued by the auditor of state. It involves the construction of the statutes relating to the residence provided by the state for the use of the governor.

The act of 1903 (Laws 1903, ch. 13, § 1) making provision for the ordinary expenses of the executive and judicial departments of the state government included in the amounts appropriated to the governor an item of $ 2000 for each of the years ending January 1, 1904, and January 1, 1905, the purpose of which was indicated by the mere phrase "maintaining executive residence," unaccompanied by any words of enlargement, limitation, or explanation. It appears from the pleadings, evidence and agreed facts that the greater part of the amount so appropriated was expended under the direction of the governor in providing for lighting and heating the executive residence, for household service, repairs and like matters, and in adding to its permanent equipment of furniture and utensils. During the period indicated its occupants entertained guests upon public, semipublic and other occasions in the spirit of official hospitality deemed to be in keeping with the quasi-public character of the place. As an incident to such entertainment it was necessary that food be purchased in excess of what would have otherwise been required. No effort was made to keep any separate account of the additional expense so occasioned, but charges for food supplies in an amount considered in a general way approximately to correspond to such increased cost were from time to time made against the fund appropriated for maintaining the executive residence and, with the approval of the attorney-general, they were allowed by the auditor and paid by the treasurer. The warrant here involved was issued in November, 1904, upon an account rendered in pursuance of this custom, for a part of the supplies purchased in the two preceding months. The refusal of the treasurer to countersign it is based upon the contention that the law does not authorize the payment by the state of any amount whatever for food used at the executive residence; and the soundness of this proposition is the sole question presented for determination.

In support of the defendant's position it is argued that the very words in which the object of the appropriation is stated preclude any other view; that these words are not merely inappropriate to express a purpose that a part of the amount named should be expended in supplying the table at the governor's official home, but that they are incapable of such interpretation under any circumstances; that by no breadth of meaning or liberality of construction can a "residence" be said to be "maintained" by supplying victuals to be there eaten. The precise question to be decided, however, is narrower than this. It is not whether the words employed might ever receive such a meaning, but whether such a meaning can be fairly attributed to them in the present instance; not what they might mean, but what they do mean. If, prior to the passage of the act in which they occur, the state had definitely assumed, in whole or in part, the burden of keeping a full larder at the residence provided for the governor, it might plausibly be claimed that the words were used with that in view, and disclosed a purpose to devote the sum named to maintaining such residence as a place where entertainment, including sustenance, was to be provided at the expense of the state; for the object of the several items of a general appropriation bill prepared to meet existing demands may be supposed to be merely indicated by phrases chosen for their brevity and convenience, rather than fully described in apt and accurate language.

Prior to this enactment no such obligation had been assumed. The only legislation on the subject was chapter 7 of the Laws of 1901, by which the purchase of an executive residence was authorized. That act appropriated to the executive council $ 33,000 for the purchase, furnishing and equipment of such a residence, and $ 2000 for "maintaining and repairing" it for two years. That "maintaining" as there used had no reference to supplying food is manifest. There is nothing in the context to suggest it; the somewhat detailed enumeration of things to be provided by the state, including furniture, carpets, utensils, light, and heat, warrants the inference that if food had been in contemplation it would have been specifically mentioned; and the association of the words "maintaining" and "repairing" suggests a similarity of meaning. The inquiry, therefore, is whether the appropriation act of 1903, either by its very terms, or as interpreted in connection with other acts, indicate a change of legislative policy and the assumption of a new liability by the state.

To say that the words "maintaining executive residence" do not, in and of themselves, include or imply the furnishing of food to be there eaten is practically to exhaust the subject. No refinement of definition, no wealth of illustration, can add to, or take from, the simple statement that, standing alone and without aid from any outside source, they do not and cannot convey that meaning. Moreover, it is a recognized canon of construction that "whenever a legislature has used a word in a statute in one sense and with one meaning and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby." (County Seat of Linn Co., 15 Kan. 500.) As already suggested, the appropriation made in 1901 for "maintaining and repairing said (executive) residence" had obvious reference to the keeping up of the physical property--the...