Harris v. Shanahan

• Decision Date: 05 December 1963
• Docket Number: No. 43289,43289
• Citation: 192 Kan. 183,387 P.2d 771
• Parties: J. P. HARRIS et al., Appellees, v. Paul R. SHANAHAN, as Secretary of State, et al., Appellants.
• Court: Kansas Supreme Court

Page 771

387 P.2d 771

192 Kan. 183

J. P. HARRIS et al., Appellees, v. Paul R. SHANAHAN, as Secretary of State, et al., Appellants.

No. 43289.

Supreme Court of Kansas.

Dec. 5, 1963.

Syllabus by the Court

1. Pursuant to Article 2, Section 14 of the Constitution of Kansas, the legislature and the governor exercise co-ordinate functions in enacting laws, and the governor is an essential part of the legislation. Until a bill has the final consideration of the three law-making powers, that is, the house, the senate, and the governor, it is not a law, and the requirements of this provision are mandatory that the governor sign the same bill which passed the legislature.

2. Before an enrolled bill can be impeached successfully by the journals of the legislature, the latter must show affirmatively, clearly, conclusively, and beyond all doubt that the bill as enrolled was not the bill passed.

3. The rule that an enrolled bill imports absolute verity and is conclusive evidence of its passage and of its validity cannot be used for the purpose of upholding a bill where the legislative records show beyond any doubt that the enrolled bill the governor signed was not the bill passed by the house of representatives and the senate.

4. Generally speaking, courts have no right to correct errors made in an enrolled bill but will ordinarily take the bill as they find it, and if not constitutionally enacted, will declare it void.

5. Senate bill No. 440 apportioning the state into 40 senatorial districts (Laws 1963, Ch. 13) and the legislative journals of the 1963 regular session of the legislature are examined and it is held: That the enrolled bill signed by the governor and published in the 1963 Session Laws was not the bill passed by the legislature and was not made into law in the form and manner prescribed by Article 2, Section 14, and is a void enactment.

6. Every citizen and qualified elector in Kansas has the right to have the districts for representatives and senators created in accordance with Article 2, Section 2, and Article 10, Sections 1 and 2 of the Constitution of Kansas, and has a further right to invoke the power of the courts to protect such constitutional right.

7. Article 2, Section 2, and Article 10, Section 1 of the Constitution of Kansas are examined, construed, and held to mean that the number of representatives constituting the house of representatives, and the number of senators constituting the senate, shall be regulated by law; that the number of representatives and senators as regulated by law shall never exceed 40 senators and 125 representatives, but the number of representatives shall not be less than the number of organized counties which cast at least 250 legal votes at the last preceding general election.

8. Article 10, Section 2 of the Constitution of Kansas directs that the legislature be apportioned every five years after the year 1866 based upon the census of the preceding year, and requires that, subject to constitutional geographical limitations for the house of representatives prescribed in Article 2, Section 2, and Article 10, Section 1, all legislative districts of the state be of equal or substantially equal population, and such provision is mandatory and not subject to legislative discretion in making the apportionment.

9. The republican form of government is designed to function through representatives chosen by the people and responsible to them on regularly recurring election days, and it is premised upon the fact that the people cannot speak in mass and the right to choose a representative is every citizen's portion of sovereign power.

10. Article 4, Section 4, of the Constitution of the United States guarantees to every state in the Union a republican form of government and every sentence and provision of the Constitution of Kansas evidences principles of that form of government declaring and guaranteeing the liberties of the people.

11. Under the republican form of government prescribed in the Constitution of Kansas, every citizen and qualified elector is entitled to a vote and representation equal or substantially equal to every other citizen and qualified elector in the state, subject to the geographical limitation that each organized county shall have at least one representative, and an apportionment act which ignores this right and exceeds bounds of authority vested in the legislature in violation of the restrictions of Article 10, Sections 1 and 2, is unconstitutional and void and it is the duty of the courts to so declare.

12. The Constitution of Kansas is the direct mandate of the people themselves, and the exercise of discretion and good faith of the legislature in the enactment of an apportionment law must be limited to the standard provided by the Constitution and not to some other which the Constitution has not fixed.

13. Subject to geographical limitations of the house of representatives that each organized county shall have at least one representative, the duty to apportion the state into equal or substantially equal legislative districts is legislative in nature and is committed by the Constitution to the legislature, and courts cannot make an apportionment of such seats themselves.

14. Each citizen and qualified elector is entitled to have the representative seats not allocated on a geographical basis apportioned to counties properly entitled to them by virtue of population and each county entitled to more than one such seat shall be divided into as many districts equal or substantially equal in population as it has representatives.

15. Perfect exactness in the apportionment of the legislature in accordance with the census of the preceding year is neither required nor possible, but there should be as close an approximation to exactness as possible and this is the utmost limit for the exercise of legislative discretion. The requirement of equality is not satisfied with less than such equality as common justice and ordinary knowledge of our territory and population would suggest. It is not enough that one legislative district is a proper size theoretically so long as other districts are given greater or less representation than is warranted by the Constitution and their population. The provisions of an act apportioning the state into legislative districts are so largely dependent upon each other that, if one or more of the districts are unconstitutionally apportioned, the entire apportionment is void.

16. The duty of properly apportioning the legislature in accordance with Article 10, Sections 1 and 2, is a continuing duty resting upon the legislature notwithstanding the failure of any previous session to make a lawful apportionment, which duty may be performed by any subsequent regular or special session of the legislature. An apportionment must comply fully with the Constitutional mandate, and once completed, unless it so completely fails to meet such standards that it must be set aside by the courts, it will not be subject to alteration until the next apportionment period prescribed by the Constitution.

17. The apportionment of the state into legislative districts pertains to the future election of a senator or representative from the district created by law and does not affect the title to office or the tenure of the members making the apportionment.

18. Members of the house of representatives and senate are elected for two and four-year terms, respectively, and each house is the sole and final judge of the elections and qualifications of its own members. When a member is duly and regularly elected and his election and qualifications have been approved by the house to which he was elected and he takes the oath of office prescribed by law, he is entitled to exercise the legislative powers of his office during the term he was elected at any regular or budget session or at a special session called by the governor.

19. Members of the legislature duly elected from a legislative district under an existing apportionment law subsequently declared unconstitutional are nevertheless de jure officers competent to enact valid legislation at a budget or special session, including at a special session, an apportionment statute apportioning the state into equal or substantially equal legislative districts.

20. Courts have no power to overturn a law enacted by the legislature within its constitutional limitations, even though the law may be unwise, impolitic, or unjust, but when legislative action exceeds boundaries prescribed by our Constitution and transgresses a right guaranteed to a citizen, final decision as to invalidity of such action rests exclusively with the courts.

21. Since the method of equal proportions has been approved by scientific bodies and because it appears to give the best results insofar as Kansas population is concerned, such method is approved as producting as close an approximation to exactness as possible in the distribution of the 20 'extra' seats in the house of representatives pursuant to Article 10, Section 1 and 2.

22. The admitted and stipulated facts in conjunction with population statistics of the state of which this court takes judicial notice, show on their face an inequality of apportionment so glaring that it repels any presumption that there exists a fair approximation of what is required by Article 10, Section 2, and compels the conclusion that G.S.1961 Supp. 4-103, apportioning the 20 'extra' seats in the house of representatives is unconstitutional and void.

A. K. Stavely and Park McGee, Asst. Attys. Gen., Topeka, argued the cause, and William M. Ferguson, Atty. Gen., and Robert E. Hoffman and Richard H. Seaton, Asst. Attys. Gen., Topeka, were with them on the briefs, for appellants.

William Y. Chalfant, Hutchinson, argued the cause, and H. R. Branine and C. E. Chalfant, Hutchinson, were with him on the briefs, for appellees.

FATZER, Justice.

This action attacks the apportionment of the senate and...