State ex rel. Anderson v. Fadely

Citation180 Kan. 652,308 P.2d 537
Decision Date05 March 1957
Docket NumberNo. 40507,40507
PartiesSTATE of Kansas ex rel. John ANDERSON, Jr., Attorney General, Plaintiff, v. Richard T. FADELY, State Treasurer of the State of Kansas, and Roy Shapiro, Controller of the State Department of Administration of the State of Kansas, Defendants.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Constitutionality of a statute is presumed, doubts as to its constitutionality are resolved in favor of legality, and before a statute may be stricken down it must clearly appear it offends applicable constitutional provisions.

2. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

3. While courts will not refuse to pass on the constitutionality of statutes in any proceeding in which such determination is necessarily involved, unnecessary consideration of attacks on their validity will be avoided and courts will not assume to pass upon constitutional questions not duly raised and insisted upon since they are not properly before it.

4. The power to appropriate money belonging to the state and rightfully in the state treasury and over which the legislature has the rightful control is a legislative power, and, except as is restricted by the constitution, the legislature has the exclusive power to direct how, when and for what purpose the public funds shall be applied in carrying out the objects of the state government.

5. The term 'specific appropriation made by law' as used in Art. 2, § 24 of the constitution of Kansas is construed to mean an authority from the legislature given at the proper time and in legal form setting apart a specific sum of money out of the state treasury to proper officials to apply in a given period, to a specific object or demand against the state.

6. G.S.1955 Supp. 75-3708 to 75-3714, inclusive, creating the state finance council and authorizing such council, by the unanimous vote of its members, to make allocations to, and authorize expenditures by, state agencies from the state emergency fund for the use and purposes and within the limitations prescribed by G.S.1955 Supp. 75-3713 do not violate Art. 2, § 1 of the constitution of Kansas. Nor are Ch. 2, §§ 22 and 34, and Ch. 34, Budget Session Laws 1956 in violation of Art. 2, § 24 of the constitution as failing to distinctly specify the purpose to which they may be applied, since the multiple purposes specified in G.S.1955 Supp. 75-3713 are all embraced within the single specific purpose for which the appropriations were made, i.e., to meet and solve contingencies or emergencies which may arise in the state government after, or which were not foreseen when, the legislature was in session.

7. The legislature may not delegate its power to make laws but may enact a law in general terms which confers upon an officer or board administrative duties to enforce and apply the law, and, to accomplish the end, to ascertain the existence or nonexistence of some future fact, event or condition which the officer or board is required to ascertain; but; the statute must prescribe reasonably clear standards by which those vested with the duty to make the statute operate will do so in the manner intended. Where, however, the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.

8. Following State ex rel. Fatzer v. Kansas Turnpike Authority, 176 Kan. 683, 692-696, 273 P.2d 198, administrative duties imposed upon legislative members of the state finance council are not an encroachment upon the power of the executive in violation of Art. 1, § 3 of our constitution.

9. G.S.1955 Supp. 75-3713 construed and held: to contain reasonably clear standards by which the discretion vested in the state finance council to allocate and authorize the expenditure of money appropriated to the state emergency fund may be governed, and does not violate Art. 2, § 1 of the constitution.

John Anderson, Jr., Atty. Gen., argued the cause, and Paul E. Wilson, Robert E. Hoffman and Charles C. McCarter, Asst. Attys. Gen., were with him on the briefs, for plaintiff.

Ward D. Martin, Topeka, argued the cause, and A. Harry Crane, Arthur L. Claussen, Harvey D. Ashworth and C. H. Hobart, Topeka, were with him on the briefs, for defendants.

FATZER, Justice.

This is an original proceeding in mandamus brought by the attorney general to determine the constitutionality of acts of the legislature establishing a state emergency fund, making appropriations thereto and creating a state finance council. The prayer of the amended petition is that the state treasurer and the controller be commanded to transfer all moneys in the state emergency fund, consisting of $948,748, to the general revenue fund in the state treasury and to make appropriate record of such transfer.

The allegations of the amended petition and amended answer will not be summarized. Suffice it to say it is alleged in the amended petition and denied in the amended answer that the acts in question, G.S.1955 Supp. 75-3708 to 75-3714, inclusive, hereafter referred to as the state finance council act, and §§ 22 and 34 of Ch. 2, and Ch. 34, Budget Session Laws 1956, hereafter referred to as the appropriation acts, violate the constitution of Kansas for reasons asserted, and are therefore unconstitutional and void.

Before considering the statutes alleged to be invalid, a brief history of preceding acts leading up to their enactment will be helpful. In 1943 the legislature established a state war emergency fund, created a state war emergency fund board, Ch. 207, Laws 1943, and transferred out of the retail sales tax fund the sum of $500,000 to such fund, Ch. 310, Laws 1943, for the use and purposes of such board as provided in Ch. 207, Laws of 1943. Sec. 2 of the last mentioned act created the state war emergency fund board and provided that its six members consist of the governor, lieutenant governor, auditor of state, speaker of the house of representatives and chairman of the committee on ways and means of the senate and of the house of representatives. Sec. 3 set forth the powers and authorities of such board and provided that while the United States was engaged in hostilities with any foreign nation and no longer, such board, by unanimous vote of all its members, was authorized and empowered to make allocations to and authorize expenditures by various state agencies from the state war emergency fund for two purposes, i. e., (1) preservation of the public health and protection of persons and property from extraordinary conditions arising out of the war and which were not foreseen at the time appropriations were made by the regular session of 1943; (2) repair or temporarily replace buildings or equipment owned by the state and destroyed or damaged by sabotage, fire, wind, tornado or act of God if such building or equipment was absolutely necessary to the continued functions of the particular state agency using the same.

In 1945 the regular session of the legislature, Ch. 66, Laws 1945, appropriated all moneys credited to the state was emergency fund to the state war emergency fund board for the purposes specified in Ch. 207, Laws 1943, and directed that any unexpended balance existing on April 2, 1947, be transferred to the retail sales tax fund. In addition, Ch. 67, it appropriated the sum of $79.732.20 from the general revenue fund of the state to the state war emergency fund board for the use and purposes provided in Ch. 207, Laws 1943. The pleadings admit that during the fiscal years 1943 to 1947, inclusive, the state war emergency fund board made allocations of the total sum of $381,751.12 out of the state war emergency fund and authorized the expenditure of such amount by various state agencies for the purposes specified.

The 1947 regular session of the legislature repealed all laws relating to the state war emergency fund and the state war emergency fund board, and created in lieu thereof a state emergency fund and a state emergency fund board, Ch. 402, Laws 1947, and directed that all unencumbered and unexpended balances in the state war emergency fund be transferred to the state emergency fund created by such act. In addition there was appropriated out of the general revenue fund of the state the sum of $294,018.92 to the state emergency fund for the use of the state emergency board, Ch. 403, Laws 1947. At the same regular session, Ch. 404, Laws 1947, there was created a state school emergency fund and the state emergency fund board was authorized to make allocations to and authorize expenditures by various state educational institutions for the purpose of paying increased costs of operating said institutions subsequent to the passage of the act. $1,200,000 was appropriated out of the general revenue fund of the state for this purpose.

In both the 1949 and 1951 regular sessions of the legislature all unencumbered and unexpended balances in the state emergency fund were appropriated and made available to the state emergency fund board for the use and purposes provided in Ch. 407, Laws 1947, and in addition, a total of $783,986.95 was appropriated from the general revenue fund of the state to the state emergency fund, Ch. 55, 56, Laws 1949; Ch. 33, 34, 35, Laws 1951.

At the regular 1953 session of the legislature all laws relating to the state emergency fund and the state emergency fund board were repealed and the state department of administration and the state department of post-audit were created, Ch. 375, Laws 1953, now ...

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