Moore v. Shanahan
| Decision Date | 11 March 1971 |
| Docket Number | No. 46358,46358 |
| Citation | 486 P.2d 506,207 Kan. 1 |
| Parties | , 207 Kan. 645 Earl C. MOORE, Appellant, v. Elwill M. SHANAHAN, Secretary of State, Appellee. . Order |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action by the plaintiff, a taxpayer and qualified elector of the state and residing in Wichita, commenced on October 19, 1970, on his behalf and on behalf of all the other electors of the state similarly situated, to enjoin the secretary of state from submitting three proposed constitutional amendments to the electors at the general election on November 3, 1970, is examined, and for reasons set forth at length in the opinion, it is held: (1) The plaintiff, Earl C. Moore, had legal standing and capacity to maintain the action; (2) proposition 2 to amend Sections 1 and 2 of Article 14 of the Constitution was properly submitted to the electors pursuant to that article, and was constitutionally adopted; (3) proposition 3 was improperly submitted to the electors in violation of Section 1, Article 14 of the Constitution Earl C. Moore, Wichita, argued the cause, and Dan Turner, Ron Baxter, and John Wilkinson, Topeka, were with him on the brief for appellant.
and is void, and (4) not more than three propositions to amend the Constitution were submitted at the general election on November 3, 1970. This court's conclusion with respect to the invalidity of proposition 3 does not affect the validity of proposition 2.
Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
ORDER
Upon consideration of this appeal, the court is of the opinion the appellant, Earl C. Moore, has legal capacity to maintain the action.
Upon further consideration, a majority of the court is of the opinion that proposition No. 2 (Amendments Article) was properly submitted pursuant to Art. 14, Sec. 1, of the Constitution, and was constitutionally adopted.
Upon further consideration, a majority of the court is of the opinion that proposition No. 3 (Executive Article and Militia Article) was improperly submitted in violation of Art. 14, Sec. 1, of the Constitution, and is void.
The court's conclusion with respect to the invalidity of proposition No. 3 does not affect the validity of proposition No. 2.
A formal opinion will be filed when the same is prepared.
This appeal was heard at the March 1971 Session, and on March 11, due to the pressing public questions presented, the court announced its decision affirming in part and reversing in part the judgment of the district court. (Moore v. Shanahan, 207 Kan. 1, 486 P.2d at p. 509.)
At the 1970 Session of the Legislature, three propositions for the amendment of the Kansas Constitution were adopted by two-thirds of the members of the House of Representatives and the Senate, to be submitted to the qualified electors of the state for their approval or rejection at the general election on November 3, 1970.
On October 19, 1970, the plaintiff, Earl C. Moore, a member of the Bar of Kansas, a taxpayer and qualified elector, and residing in Wichita, commenced this action against Elwill M. Shanahan, Secretary of State for the state of Kansas, to enjoin her from submitting each of the said proposed amendments to the electors of the state. The petition alleged the plaintiff filed the action on his behalf and on behalf of all the electors of the state of Kansas similarly situated, upon the ground the three proposed amendments were ineffective as amendments to the Constitution of Kansas, and would be inoperative if approved by the people; that, as a taxpayer and elector, he was entitled to relief against the unconstitutional submission of said amendments, and the improper expenditure of public funds. The plaintiff specifically alleged that each proposed amendment was in violation of that part of Section 1, Article 14, which reads:
'When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.'
Proposition 1 was proposed by Senate Concurrent Resolution No. 8 (L.1970, Ch. 189), to amend Section 10, Article 15, by removing the provision forever prohibiting the 'open saloon' in Kansas. In view of what is stated hereafter, no further reference to this amendment need to made.
Proposition 2 was proposed by House Concurrent Resolution No. 1033 (L.1970), Ch. 411), to amend Sections 1 and 2, Article 14, relating to constitutional amendment and revision.
Proposition 3 was proposed by House Concurrent Resolution No. 1026 (L.1970, Ch. 347), to amend Article 1, relating to the executive branch of the state government, and to repeal Article 8, relating to the militia of the state.
The secretary of state having caused the proposed amendments to be published as required by Section 1, Article 14, and also having prepared and distributed to the various county clerks and election commissioners, the form of the ballot for the submission of said proposed amendments to the electors for their approval or rejection, the district court, in accordance with the principle of general application that courts will not enjoin the holding of an election, refrained from issuing a temporary injunction, or the restraining order prayed for. (Dunn v. Board of County Comm'rs of Morton County Comm'rs, 162 Kan. 449, Syl. 3.)
At the general election on November 3, 1970, a majority of the qualified electors voting on proposition 1 rejected it, and a majority of those electors voting on propositions 2 and 3 adopted each proposed amendment, although in so doing, they cast some 120,000 less votes on propositions 2 and 3 than they cast on proposition 1.
On November 6, 1970, the attorney general of Kansas, acting for and on behalf of the secretary of state, filed an answer to the plaintiff's petition. The answer alleged the defendant had no knowledge of plaintiff's residence in Wichita, but 'admits that plaintiff is qualified to bring this action.' The answer made allegations of the electors' rejection of proposition 1, and that the plaintiff's claim concerning the same was moot. It denied the plaintiff was entitled to any relief requested, and alleged the remaining two proposed amendments, 2 and 3, were constitutional. The prayer was that judgment be entered in favor of the defendant on propositions 2 and 3, and that they be declared to be constitutionally submitted and adopted.
Thereafter, and on November 9, 1970, the plaintiff filed an amended petition in which he incorporated many of the allegations of his original petition, including his right to bring the action, and alleged that proposition 2 contained at least six separate amendments, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the six proposed amendments completely revising Article 14, constituted more than one amendment, and denied the plaintiff and all other electors similarly situated the right to vote 'yes' or 'no' on each amendment separately, and also violated the constitutional prohibition that not more than three propositions to amend shall be submitted at the same election.
The amended petition further alleged that proposed amendment 3 contained at least twelve separate amendments to Article 1, and repealing Article 8, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the twelve proposed amendments completely revising Article 1, and repealing Article 8, constituted more than one amendment, and denied the plaintiff and all other electors similarly situated, the right to vote 'yes,' or 'no,' on each amendment separately, and also violated the constitutional prohibition that not more than three amendments be submitted together.
The amended petition contained allegations concerning the State Board of Canvassers and its duty to canvass the election abstracts, and that the defendant and the members of such Board should be restrained from certifying the abstracts of election on amendments 2 and 3 until the court had opportunity to pass upon their constitutionality. Further reference to those allegations and the restraining order issued thereon, is deemed unnecessary.
On December 3, 1970, the district court heard the case on its merits, and on January 27, 1971, it entered judgment dismissing the plaintiff's action, 'because (1) he has no legal standing to bring the action, and (2) plaintiff is not entitled to the relief he seeks since propositions 2 and 3 submitted to the electors on November 3, 1970, are constitutional.'
The plaintiff timely perfected this appeal, and this court advanced the case for hearing to the March 1971 Session. The case was heard on its merits March 5, and on March 11, this court made public announcement of its decision. (Moore v. Shanahan, supra.)
At the outset, we are met with the plaintiff's contention the district court erred in holding he had no legal standing or capacity to bring the action. The point is well taken. The verified petition alleged the plaintiff was a qualified elector of Wichita and brought the action on his behalf and all other electors of the state of Kansas similarly situated. The defendant's answer made no denial of that allegation, and specifically admitted the plaintiff was qualified to bring the suit. The question was neither raised nor briefed by the parties in the district court, but the court, on its own initiative, injected the issue into the case. Courts have jurisdiction to decide only such issues as are raised by the pleadings or defined in the pretrial order, or new issues raised by evidence to which no objection is made. (Shriver v. Board of County Commissioners, 189 Kan. 548, 552, 370 P.2d 124, and cases c...
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