Norman v. Kentucky Board of Managers of World's Columbian Exposition

• Decision Date: 09 December 1892
• Citation: 93 Ky. 537,20 S.W. 901
• Parties: Norman, State Auditor, v. Kentucky Board of Managers of World's Columbian Exposition.
• Court: Kentucky Court of Appeals

20 S.W. 901

93 Ky. 537

Norman, State Auditor, v. Kentucky Board of Managers of World's Columbian Exposition.

Court of Appeals of Kentucky.

December 9, 1892

Appeal from circuit court, Franklin county.

"To be officially reported."

Petition for mandamus by the Kentucky Board of Managers of the World's Columbian Exposition against L. C. Norman state auditor, to compel the issuance of a warrant on the state treasurer. From a judgment granting the writ, defendant appeals. Reversed.

Holt C.J.

The questions in this case are of supreme importance. The president of the State Board of Managers of the World's Columbian Exposition presented a proper order to the appellant, the state auditor, for a warrant upon the state treasurer for a portion of the $100,000 claimed to have been appropriated by an act of the legislature to make an exhibit of the resources of our state at the exposition. The auditor acting no doubt from a conscientious desire to properly discharge his duty, and under the advice of the attorney general, who is by law his legal adviser in such matters refused it, and this is an action for a mandamus to compel him to give it.

It is said, in limine, that he has no personal interest in the matter, and, being a ministerial officer, cannot refuse to issue it upon the ground that the legislature could not constitutionally make the appropriation, or that the act was not constitutionally passed,-in short, that his only duty was obedience, and that he has no standing in court. It is a general rule that a court will not listen to one who says a legislative act is unconstitutional unless his rights are involved, or he has a right to question it. Section 230 of our new constitution, however, says: "No money shall be drawn from the state treasury except in pursuance of appropriations made by law;" and our statute forbids the issue by the auditor of a warrant upon the treasury "unless the money to pay the same has been appropriated by law." Gen. St. c. 6, art. 1, § 6. If the act of the legislature be void for want of power to pass it, or because it was not passed in the manner required by the constitution then it is not law; and the auditor is vested with such power, and occupies such a position, that it is not only his right, but his duty, whenever he is called upon to order the payment of money out of the treasury, to inquire whether it is being done legally. He is, in a certain sense, a trustee; and the public interest requires that his office should give him the right to question the validity of a legislative act under which, by means of his warrant, the public money is to be expended.

The right to the mandamus is denied by him, first, upon the ground that the legislature had no power to make the appropriation. It is urged that it is not for a public or governmental purpose. Our constitution says "Taxes shall be levied and collected for public purposes only." It is often difficult to draw the line which bounds constitutional taxation, or to determine whether the purpose is one in aid of which the taxing power may be invoked, or the money thus raised expended. If it be doubtful, and the legislature has seen proper to exercise the power, the judiciary should not interfere. The doubt is then to be solved in favor of the legislative action. The object in this instance, however, is to exhibit the resources and progress of the state. It is not to promote the interest of one or a few individuals, and perhaps incidentally that of the public; but the purpose is public in character, and calculated and intended to benefit the entire state. Our legislature has repeatedly, heretofore, and running through many years, appropriated money for like purposes, and its power to do so is now for the first time questioned. It was done in 1876 for the Centennial Exposition at Philadelphia, and later for the one at New Orleans. This was well known to the framers of our present constitution, adopted in 1891; and, had it been intended to forbid the exercise of the power by the legislature for such purposes, it would no doubt have been done, in unmistakable terms. In our opinion, it contains no such provision. It is not a loaning of the credit of the state, and therefore forbidden by it. The commissioners selected to expend the money are merely the state's agents to do so, and provide the exhibit for the benefit of its people. The legislature had the power to provide the means for such a purpose, but in doing so was bound to act in conformity to the constitution.

The troublesome question in the case is whether it has done so, and what are the duty and power of this court as the parties present themselves. The auditor claims that it has not, and this is the second ground of his defense. Section 46 of our constitution provides: "No bill shall become a law unless, on its final passage, it receives the votes of at least two fifths of the members elected to each house, and a majority of the members voting, the vote to be taken by yeas and nays, and entered in the journal: provided, any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each house." The act originated in the senate, and passed that body, upon a yea and nay vote, entered upon its journal, by the required majority. It then went to the other house, where, after being amended, it passed, upon a like vote, entered upon its journal, by a like majority. It then came back to the senate, where the amendments were concurred in without a yea and nay vote, and without the vote of a majority of the members elected. It is conceded by the counsel for the appellees, and seems plain, that this mode of proceeding did not conform to the constitution. It complied with it in neither letter nor spirit. The object of the section above cited was to have the assent of a majority of all the members elected to each house to all the provisions of the act, and that this should appear by a yea and nay vote entered upon its journal. If a bill, after passing one house in the proper manner, and then, after amendment, passing the other house in like manner, could come back to the house in which it originated, and be adopted by a majority of those voting, or a quorum, it would defeat this object, and render the section ineffectual. Let us look at it practically. An appropriation bill of $100 originates in the senate, and is properly passed. It goes to the house, where it is amended by making the sum $10,000, and is then properly passed by it. It returns to the senate for concurrence, and is adopted, as amended, by a majority of those present, without a yea and nay vote. Can it be well contended that this would be a compliance with the constitution? If so, then, there being 38 senators, it would require 20, or a majority of them, to pass a bill for a trifle; but, after being amended in the house so as to perhaps bankrupt the treasury, it could be concurred in by the senate by the votes of 11 members, or a majority of a quorum; and in case of the house, with its 100 members, it would require 51 to pass the bill, if it originated there, but only 26, or a majority of a quorum, to concur in it after it had been changed in like manner by the senate. Further illustration seems needless.

It is true it has been held that the "final passage" of a bill means when it first passes the body, and not when it returns to it, after amendment, for adoption; and it is said that the constitutional provision as to the number of votes, and the entry of the yea and nay vote on the journal, does not apply to amendments, or the reports of conference committees. If so, then, no matter how material the change, a majority vote of a quorum may pass the bill. The words "final passage," as used in our constitution, mean final passage. They do not mean some passage before the final one, but the last one. They do not mean the passage of a part of a bill, or what is first introduced, and which may, by reason of amendment, become the least important. If so, then the body may pass what is practically a new bill in a manner counter to both the letter and spirit of the constitution. When the bill was voted on in the senate, as amended, and after its return from the house, there never was any further action by the senate. It was the final vote, and therefore its final passage; and, being so, a majority vote of all the members elected, with an entry by yea and nay vote upon the journal, was necessary to its constitutional enactment. The bill, as approved by the speakers of the two houses and by the governor, never was passed by the senate, by a majority of all its members, nor by a yea and nay vote.

It is said, however, upon the one side, that, having been enrolled signed by the presiding officer of each house, and approved by the governor, the act must be conclusively presumed to have been constitutionally enacted; that public policy requires this rule, else confusion will result, by our statute law being reduced from a state of certainty to one of doubt. Upon the other side, it is urged, with equal ability, that a prima facie case only is thereby presented, and that resort may be had to the journals of the legislature, which are required by the constitution to be kept, and are kept, under the supervision of all the members, as to the truth of the matter. Each position is supported by numerous authorities, and, whether the one rule or the other obtains, more or less abuse and danger may result. There is some dynamite either way, but perhaps not as much in the latter as some apprehend, as the party questioning the enrolled and approved act must at the outset overcome a prima facie case. The first view is the English one, where there is no written...