Kenyon v. Kansas Power & Light Co.

• Decision Date: 10 December 1993
• Docket Number: No. 69309,69309
• Citation: 254 Kan. 287,864 P.2d 1161
• Parties: Marty Louis KENYON, Appellant, v. KANSAS POWER & LIGHT COMPANY, d/b/a KPL Gas Service Company, Appellee.
• Court: Kansas Supreme Court

Page 1161

864 P.2d 1161

254 Kan. 287

Marty Louis KENYON, Appellant, v.KANSAS POWER & LIGHT COMPANY, d/b/a KPL Gas Service Company, Appellee.

No. 69309.

Supreme Court of Kansas.

Dec. 10, 1993.

Syllabus by the Court

1.The legislature and the governor exercise coordinate 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.A bill never becomes a law until the constitutional prerequisites respecting the manner of enactment have been fully complied with.(Following Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771[1963].)

2.The requirements of Article 2, § 14 of the Kansas Constitution are mandatory that the governor sign the same bill that passed the legislature.The strict rule calling for full compliance with constitutional requirements is, in the long run, a good one, beneficial to our republican form of government.(Following Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771[1963].)

3.Severability may become an issue only when a portion of a constitutionally enacted law is deemed to be unconstitutional.

4.In construing a statute, errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable.But the court cannot delete vital portions or supply vital omissions in a statute.No matter what the legislature may have intended to do, if it did not in fact do so under any reasonable interpretation of the language used, the defect is one that the legislature alone can correct.(followingHarris v. Shanahan, 192 Kan. at 196, 387 P.2d at 771.)

5.The Overhead Power Line Accident Prevention Act, K.S.A. 66-1701 et seq., is unconstitutional as enacted.

Donald W. Vasos, of Law Offices of Donald W. Vasos, Kansas City, argued the cause, and David A. Hoffman, of the same firm, and Mark J. Sachse, Kansas City, were with him on the briefs, for appellant.

Gregory A. Lee, of Gehrt & Roberts, Chartered, Topeka, argued the cause, and Jeffrey S. Southard and Diana G. Edmiston, of Kansas Power & Light Co., Topeka, were with him on the brief, for appellee.

DAVIS, Justice:

Plaintiff, Marty Louis Kenyon, appeals from an adverse jury verdict in this personal injury action, claiming that the trial court's application of the provisions of the Overhead Power Line Accident Prevention Act (OPLA), K.S.A. 66-1701 et seq., constituted reversible error.He contends that OPLA was improperly enacted under Article 2, § 14 of the Kansas Constitution and is, therefore, void.

On November 29, 1990, plaintiff was injured when the metal ladder he was moving at a work site came into contact with an overhead power line.Kenyon filed this action against Kansas Power & Light Company(KP & L), seeking compensation for his injuries.The trial court instructed the jury in accordance with the provisions of OPLA, and the jury returned a verdict assessing zero percent fault against KP & L.

During the 1990 legislative session, the House Appropriations Committee introduced H.B. 3086, "The Overhead Power Line Accident Prevention Act."Section 6(b)(which is now K.S.A. 66-1706[b] ) was not included in the version passed by both houses of the Kansas Legislature:

"In a civil action in a court of this state when it is shown by competent evidence that damage to any high voltage overhead line owned or operated by a public utility, a personal injury or other damages occurred as a result of a violation of this act, there shall be a rebuttable presumption that the person violating the provisions of this act was negligent as a result of such violation."

When the enrolled bill was returned by the printer to the legislature, section 6(b) was included.Apparently this went undetected and the enrolled bill, with section 6(b), was signed by the officers of the Senate and the House, sent to Governor Hayden for his signature, and signed by the Governor.

There is no dispute that both houses of the Kansas Legislature passed a version of OPLA that did not contain K.S.A. 66-1706(b).There also is no dispute that the House and Senate officers signed a version of the bill that erroneously contained K.S.A. 66-1706(b).The governor signed the version of the bill containing K.S.A. 66-1706(b).Thus, the bill that passed both houses of the legislature was not the bill signed by the governor.

The trial court found that K.S.A. 66-1706(b) was invalid but severable, "leaving the remainder of the Act valid, enforceable and applicable."Plaintiff argues that the entire Act is unconstitutional because it was not enacted in accordance with Article 2, § 14 of the Kansas Constitution.

Article 2, § 14 of the Kansas Constitution provides in pertinent part:

"(a) Within ten days after passage, every bill shall be signed by the presiding officers and presented to the governor.If the governor approves a bill, he shall sign it."

According to Article 2, § 13 of the Kansas Constitution, a bill is "passed" when a majority of the members of each house vote in the affirmative in support of the bill.Thus, our Constitution requires that the bill presented to the governor be the bill on which both houses of the legislature agreed.Because the bill signed by Governor Hayden contained section 6(b) and was not the bill passed by the legislature, plaintiff argues that the entire enactment is unconstitutional and void.

Before discussing this contention, we note that the 1993legislature repealed K.S.A. 66-1701 through 66-1708 and enacted a new bill that includes a version of the previously deleted section 6(b).SeeL.1993, ch. 119, § 6.Governor Finney signed H.B. 2410 on April 5, 1993.That statute is not at issue in this case.

Our decision in Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771(1963), resolves the issue in this case.In Harris, as here, the governor signed a bill that differed from the bill passed by the legislature.In addressing the constitutionality of the law signed by the governor, we summarized the rules applicable to Article 2, § 14 that govern transfer of a bill introduced in a legislature into law:

"[T]he legislature and the governor exercise co-ordinate functions in enacting laws, and the governor is an essential part of the legislation.[Citations omitted.] ... [U]ntil 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.[Citations omitted.] .... [A]bill never becomes a law until the constitutional prerequisites respecting the manner of enactment have been fully complied with."192 Kan. at 194, 387 P.2d at 771.

We concluded in Harris that we did not have the power to change the statute so that it conformed with the bill that the legislature passed:

"The long and short of this case is that the bill passed by both houses of the legislature was not the bill approved and signed by the governor and this court has no authority to insert what was omitted.The requirements of Article 2, Section 14, are mandatory that the governor sign the same bill which passed the legislature.It follows that the enrolled bill the governor signed ... was not made into law in the form and manner prescribed, and is a void enactment.

"... It is lamentable that error on the part of engrossing clerks and legislative committees should defeat the action of the legislature.But the strict rule calling for full compliance with constitutional requirements is, in the long run, a good one.In some cases it may work a hardship, but, by and large it is beneficial to our republican form of government."192 Kan. at 200, 387 P.2d 771.

AccordZiegler v. Junction City, 90 Kan. 856, 136 P. 223(1913)(invalidating enactment signed by the governor because it was never passed by the senate).

KP & L attempts to distinguish Harris and its predecessors, arguing that there is no constitutional infirmity that affects the entire bill in this case.According to its contention, the governor signed the bill passed by the legislature because the billhe signed contained everything that was in the billthe legislature passed, although it just happened to contain an additional provision, section 6(b).According to KP & L's argument, because the legislature did not pass the additional provision, it was never properly before the governor and may be severed from OPLA.

KP & L's argument fails to acknowledge that the bill presented to the governor was different from the bill passed by the legislature.The bill signed by the governor contained a provision that the legislature had deleted.Although the legislature's intent may be clear, the governor's intent is not.We have no way of knowing whether the governor would have signed the bill if it had not contained section 6(b).If we were to adopt KP & L's reasoning, we would be minimizing the importance our constitution vests in the governor of this state in the process of enacting laws governing the citizens of this state.The legislature and the governor are equally important:

"In the making of laws under our constitution, the governor and the legislature are coordinate branches.That is the way the writers of the constitution intended it should be.The one is about as important as the other.The court will not for reasons of expediency reach a conclusion that will enable either one to bypass the other."State, ex rel., v. Robb, 163 Kan. 502, 515-16, 183 P.2d 223(1947).

KP & L attempts to distinguish Harris and Robb on the basis that in those casesthe court declined to add language to a statute.KP & L contends that deleting language, as it suggests in this case, is different from adding language.KP & L also argues that Ziegler is distinguishable because it involved a bill that was not approved by one of the houses of the legislature, whereas the bill in this case...