Cunningham v. Smith
| Decision Date | 25 January 1936 |
| Docket Number | 32787. |
| Citation | 143 Kan. 267,53 P.2d 870 |
| Parties | CUNNINGHAM v. SMITH et al., Board of County Com'rs. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Act respecting fees and salaries of county officers and employees held not unconstitutional because it did not specifically repeal previous existing sections of statute relating to fees and salaries, where act was temporary measure and its purpose was temporarily to supersede general statute and not to repeal it (Laws 1933, c. 186; Const. art. 2, § 16).
Chapter 186, Laws 1933, is not invalid on the ground that it violates article 2, section 16, of our Constitution.
Appeal from District Court, Reno County; J. G. Somers, Judge.
Action by Ed. Cunningham against Harry Smith and others, comprising the Board of County Commissioners of Reno County. From an order overruling a demurrer to the petition, defendants appeal.
Reversed with directions.
Wesley E. Brown, and J. Richards Hunter, both of Hutchinson, for appellants.
Eustace Smith, J. N. Tincher, Clyde Raleigh, and Leaford F Cushenbery, all of Hutchinson, for appellee.
This is an appeal from an order overruling defendants' demurrer to plaintiff's petition. The question involved is the constitutionality of chapter 186 of the Laws 1933. The title and first two sections of this statute read as follows:
These are followed by a number of sections fixing the fees and salaries of county officers, the amount they shall be allowed for deputy hire, and, with respect to sheriffs, the amount they shall charge for the services required by law to be performed by them, and the mileage to be charged by them in the performance of their duty. The act does not purport to amend or repeal prior existing statutes with respect to the fees and salaries of county officers and the amounts to be charged by them for their services. Generally speaking, it reduced the compensation of county officers for the time the act was to be in effect from that provided by the general statutes (R.S. 28--101 et seq., as amended) relating to fees and salaries.
Plaintiff alleged that he was sheriff of Reno county, Kan.; that his salary under the general statutes relating to fees and salaries at the time of the enactment of chapter 186, Laws 1933, was at the rate of $3,499.92 per year, and that he was entitled to mileage at the rate of 10 cents per mile; that for the months of April to December, 1933, defendants refused to pay him salary at that rate, but paid him at the rate of $2,800 per year, and for his mileage at the rate of 5 cents per mile, as provided in chapter 186, Laws 1933; that chapter 188, Laws 1933, is void as being in violation (1) of article 1, section 10, of the Constitution of the United States; (2) of article 15, section 7, of our State Constitution; (3) of article 2, section 14, of our Constitution; and (4) of article 2, section 16, of our Constitution. He sued for $524.94, being the difference in salary under the two statutes for the months from April to December, 1933, and for an additional sum for the difference in mileage.
Defendants demurred to the petition on the ground and for the reason that it does not state facts sufficient to state a cause of action. The trial court overruled the demurrer upon the sole ground that chapter 186, Laws 1933, is in violation of article 2, section 16, of our Constitution.
We shall speak of the parties as they appeared in the trial court. In this court plaintiff does not contend the statute in question should be held void as being in violation of article 1, section 10, of the Federal Constitution, or of article 7, section 15, or of article 2, section 14, of our State Constitution; hence these contentions originally made by plaintiff may be regarded as having been abandoned. Indeed, it is at least tentatively conceded by plaintiff that his original contentions on these points previously have been decided adversely to him. Plaintiff argues, however, that the trial court correctly held the statute to be in violation of article 2, section 16, of our Constitution, which, so far as here pertinent, reads as follows: "And no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed."
It is argued that, since the act in question does not specifically repeal previous existing sections of the statute relating to fees and salaries, it fails to comply with the above-quoted section of our Constitution, and is therefore invalid. The point is not well taken. Statutes may be repealed by implication. Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 P. 1009. Such repeals do not come within the purview of article 2, section 16, of our Constitution. State ex rel. v. Cross, 38 Kan. 696, 700, 17 P. 190. But we do not predicate our decision upon the doctrine of repeal by implication. The statute in question was not intended or designed to repeal existing statutes on fees and salaries or any other statute. It was enacted as a temporary measure for "a term and emergency herein provided" (as the title states), and for a time "commencing April first, 1933, and ending March thirty-first, 1935," as provided in section 1 of the act. Its purpose was to supersede for the time stated the general statute relating to the subject covered by the act, and was not designed to repeal it. The section of the Constitution above quoted does not prohibit that class of legislation.
It is familiar law under our form of government that originally all governmental powers were vested in the people; that they surrendered a part of such powers by delegating them to the federal government when it was organized, hence the federal government, by its Constitution, is one of granted or delegated powers; that all governmental powers not so granted or delegated to the federal government were retained by the people of the respective states; that, in the formation of State Constitutions the people sometimes restricted the exercise of their own governmental powers in certain respects; and that the people of a state now have and may exercise all governmental powers not delegated to the federal government and in the exercise of which they have not restricted themselves by the terms of their own Constitution. Among the general governmental powers retained by the people, and to be exercised by them through their Legislatures, is the power to enact, amend, and repeal statutes (12 C.J. 805) and to suspend for a time the operation of statutes previously enacted. In Cooley's Constitutional Limitations (8th Ed.) p. 809 (7th Ed. p. 558), it is said: "The legislature may suspend the operation of the general laws of the State; but when it does so the suspension must be general, and cannot be made for individual cases or for particular localities" (citing cases). See, also, the same author, page 232: "The suspension of a statute is a legislative act."
In 59 C.J. 940, it is said:
The confusion which might arise from suspension of statutes has been recognized by the framers of the Constitutions of some states. In Massachusetts, article 20 of the Declaration of Rights, reads: "The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for."
For construction of this, see In re Opinion of the Justices, 286 Mass. 611, 191 N.E. 33. Similar provisions are found in the Constitutions of Maine, section 13, Declaration of Rights, New Hampshire, article 29, Bill of Rights, Ohio, section 18, Bill of Rights, Vermont, article 15, Declaration of Rights, and perhaps in some other states. These declarations, however, do not differ materially from the principles of law stated by Cooley and in 59 C.J., above quoted. Our Constitution contains no specific declaration respecting authority to suspend laws, hence contains no restriction on such action, and the question in this state is governed by the general rules of law above quoted.
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