Johnson County Sports Authority v. Shanahan

• Decision Date: 19 July 1972
• Docket Number: No. 46870,46870
• Citation: 499 P.2d 1090,210 Kan. 253
• Parties: JOHNSON COUNTY SPORTS AUTHORITY, Plaintiff, v. Elwill M. SHANAHAN, Secretary of State of the State of Kansas, Defendant.
• Court: Kansas Supreme Court

Page 1090

499 P.2d 1090

210 Kan. 253

JOHNSON COUNTY SPORTS AUTHORITY, Plaintiff, v. Elwill M. SHANAHAN, Secretary of State of the State of Kansas, Defendant.

No. 46870.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. The statutory duty of the secretary of state to exercise editorial judgment in the preparation of the session laws required by K.S.A.1971 Supp. 45-310(d) does not include the power to change the language of enrolled bills. The secretary of state must copy the enrolled bills and publish them in the session laws as they are written without changes or corrections.

2. Mandamus will not lie to compel a public officer to perform an unauthorized act.

3. The supreme court can take original jurisdiction under the declaratory judgment statute, K.S.A. 60-1701, only where consequential relief could be obtained through quo warranto, mandamus or habeas corpus.

4. There must be at least two parties who can assert rights which have developed or will arise against each other before an actual controversy can exist which is justiciable under the declaratory judgment act.

A. C. Cooke, of Cooke, North, Crossette & Dickson, of Prairie Village, argued the cause, and Thomas H. Bornholdt and George A. Burns, Prairie Village, Were with him on the brief, for plaintiff.

Patrick L. Connolly, Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief, for defendant.

PRAGER, Justice.

This is an original proceeding in mandamus brought by the Johnson County Sports Authority as plaintiff to compel the defendant Elwill M. Shanahan, Secretary of State, to correct an error in the final enrolled version of House Bill 1715 which was passed by the 1972 Kansas legislature. Specifically plaintiff seeks to compel the secretary of state to insert the word 'not' in section 1(f) of the statute and to publish the statute as corrected in the 1972 Session Laws. In addition to relief by way of mandamus plaintiff prays this court to render a declaratory judgment construing House Bill 1715 section 1(f) as corrected.

The facts in this case are undisputed and are essentially as follows: During the 1972 session of the Kansas legislature House Bill 1715 was introduced authorizing the creation of a county sports authority by the borad of county commissioners in an urban area county. The county sports authority is granted the authority to construct and operate sport facilities, to issue revenue bonds, and to pledge revenues dervied from the facilities and from a proposed entertainment tax to the payment of the revenue bonds. The proposed entertainment tax is to be levied by the board of county commissioners when requested by the sports authority. The impact of the entertainment tax is to fall upon persons engaged in the business of providing sleeping accommodations in connection with any motel, hotel or tourist court. The entertainment tax is calculated on the basis of a percentage of the gross rental receipts paid by transient guests for sleeping accommodations. In addition the entertainment tax is levied upon the gorss receipts dervied from the retail sales of food by persons engaged in the business of operating a cafe, caferteria, lunchroom or restaurant.

The problem arose in this case because of a printing error in the final enrolled bill which was signed by the governor. In the engrossed bill, which was acted upon and passed by both houses of the legislature, section 1(f) of the bill defined a 'transient guest' as follows:

'Transient guest' means a person who occupies a room in a hotel, motel or tourist court for not more than thirtyone (31) days.' (Emphasis supplied.)

The error in printing occurred when the engrossed bill was sent to the state printer by the chief clerk of the house. In preparation of the enrolled bill the state printer omitted the word 'not' from section 1(f) so that that section defined the term 'transient guest' as follows:

"Transient guest' means a person who occupies a room in a hotel, motel or tourist court for more than thirty-one (31) days.'

The chief clerk of the house did not notice the error in the enrolled bill and sent the enrolled bill with the printing error to the house and senate leaders and to the governor for their signatures and signed the same himself. The enrolled bill with the printing error omitting the word 'not' in section 1(f) was published in the official state paper on March 13, 1972.

Thereafter the Board of County Commissioners of Johnson County, Kansas, acting under the authority of House Bill 1715 established the Johnson County Sports Authority. The attorneys for the Johnson County Sports Authority discovered the omission of the word 'not' in the enrolled bill and became concerned as to the legality of the proposed revenue bonds and entertainment tax as authorized by the bill. The printing error was called to the attention of the secretary of state. The Johnson County Sports Authority requested the secretary of state to publish House Bill 1715 in the 1972 Session Laws with the inclusion of the word 'not' in section 1(f). The secretary of state declined to take this action. In lieu thereof the secretary of state inserted an editorial dagger between the words 'for' and 'more' in the definition of 'transient guest' in section 1(f) and on page 415 of the 1972 Session Laws at the conclusion of House Bill 1715 she caused to be placed a footnote calling attention to the printing error in the following language:

'In the printing of the enrolled bill, the word 'not' was omitted.'

The Johnson County Sports Authority then brought this original proceeding in mandamus in the supreme court.

In this proceeding the plaintiff contends in substance that an order of mandamus should be issued directing the secretary of state to insert the word 'not' in section 1(f) of House Bill 1715 as published in the 1972 Session Laws. Plaintiff takes the position that an action in mandamus will lie to compel the secretary of state to exercise her editorial judgment under the provisions of K.S.A.1971 Supp. 45-310(d) in preparing the bound volumes of the 1972 Session Laws. Plaintiff further urges the court to render a declaratory judgment construing section 1(f) of House Bill 1715 by including the word 'not' at the point where it was erroneously omitted in the definition of 'transient guest' in section 1(f) of the final enrolled bill.

In her answer the secretary of state admits that she has the power to exercise editorial judgment in the preparation of the volumes of the 1972 Session Laws as provided by K.S.A.1971 Supp. 45-310(d). She specifically denies that such power includes the right to make changes or correct errors of omission in formally enrolled bills of the legislature. Finally the secretary of state contends that in her official capacity she did in fact exercise her editorial judgment as directed by K.S.A.1971 Supp. 45-310(d) by preparing the volumes of the 1972 Session Laws which have now been published and are in the process of distribution.

On the basis of the undisputed record before this court we hold that the petition for a writ of mandamus should be denied and further that under the circumstances of this case this court has no original jurisdiction to enter a declaratory judgment construing section 1(f) of House Bill 1715.

In arriving at this decision we have concluded that the statutory duty of the secretary of state to exercise editorial judgment in the preparation of the volumes of the session laws as provided by K.S.A.1971 Supp. 45-310(d) does not include the power to change the language of enrolled bills. On the contrary the secretary of state must copy the enrolled bills and publish them in the session lawas as they are written without changes or corrections.

K.S.A.1971 Supp. 45-310 covers the general subject of the publication of the session laws passed at each session of the legislature. It requires that such publication shall be accomplished under the direction of the secretary of state as follows:

'45-310. Session laws; publication, printing, title and contents. (a) All acts and joint resolutions passed at each session of the legislature shall be published in one or more volumes, under the direction of the secretary of state, as soon as practicable after the close of the session at which the same are passed. Such acts and joint resolutions ahll take effect and be in force from and after such publication, unless otherwise specifically provided in such act or resolution. Such volume or volumes shall also have included therein an index, the veto messages of the governer, if any, all certificates that a bill or joint resolution or item or items of a bill have been approved notwithstanding the governor's veto, if any, and all concurrent resolutions adopted by the legislature, except such resolutions extending congratulations or making a memorial for any decedent. Whenever any bill, act or resolution of the legislature shall provide that the same shall be effective from and after its publication in the statute book, the words 'publication in the statute book' mean publication in the session laws of Kansas as provided in this section.

'(b) Such volume or volumes shall be titled and may be cited as '_ _ Session Laws of Kansas.' The blank shall be filled with the numeric designation of the year, in the case of regular sessions, and in the case of special sessions the blank shall be filed with the numeric designation of the year followed by the word 'Special.' Such title shall be printed on the back of each volume.

'(c) The sections in such volume or volumes shall be printed in the same manner as the 1967 Session Laws of Kansas, except (1) material added to an existing section of the statutes shall be printed in italic type, and (2) material deleted from an existing section of the statutes shall be printed in canceled type.

'(d) The secretary of state...