State ex rel. Boynton v. Kansas State Highway Commission

• Decision Date: 27 January 1934
• Docket Number: 31717.
• Citation: 28 P.2d 770,138 Kan. 913
• Parties: STATE ex rel. BOYNTON, Atty. Gen., v. KANSAS STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

28 P.2d 770

138 Kan. 913

STATE ex rel. BOYNTON, Atty. Gen., v. KANSAS STATE HIGHWAY COMMISSION.

No. 31717.

Supreme Court of Kansas

January 27, 1934

Syllabus by the Court.

Statute permitting highway commission, for purpose of providing work for unemployed, to borrow money from agency of federal government for construction and maintenance of highways, held not unconstitutional on ground that state could not furnish relief to poor and needy (Laws 1933 [Sp. Sess.] c. 98; Const art. 7, § 4).

Title of statute permitting highway commission to borrow funds from agency of federal government for construction and maintenance of highways held not objectionable as misleading or dealing with more than one general subject (Laws 1933 [Sp. Sess.] c 98; Const. art. 2, § 16).

Statute permitting highway commission to borrow funds from agency of federal government for construction and maintenance of highways held not objectionable as conferring legislative authority on Governor or commission (Laws 1933 [Sp. Sess.] c 98; Const. art. 2, § 1).

Statute permitting highway commission to borrow funds from agency of federal government for construction and maintenance of highways held not to unconstitutionally authorize expenditure of money over period of more than two years (Laws 1933 [Sp Sess.] c. 98; Const. art. 2, § 24).

Statute permitting money from taxation of motor vehicles and motor fuels to be used in repaying money borrowed from agency of federal government for construction and maintenance of highways held not to violate constitutional provision that no tax should be levied except in pursuance of law distinctly stating object thereof (Laws 1933 [Sp. Sess.] c. 98; Const. art. 11, §§ 4, 9).

Warrants issuable by state highway commission to secure money borrowed from agency of federal government for construction and maintenance of highways held not objectionable as constituting "general obligation" of state, where payable out of motor vehicles and motor fuels taxation fund (Laws 1933 [Sp. Sess.] c. 98; Const. art. 11, §§ 8, 9).

Warrants are not "bonds" and ordinarily are not "debts" within constitutional provision requiring ratification by voters where in excess of $1,000,000 (Const. art. 11, §§ 5, 6).

Warrants issuable by highway commission to secure money borrowed from agency of federal government are not "debts," within Constitution requiring ratification by voters, where payable from motor vehicles and motor fuels taxation fund, since debts referred to in Constitution are those to be paid by general property tax (Laws 1933 [Sp. Sess.] c. 98; Const. art. 11, §§ 5, 6).

Constitution prohibiting debts in excess of $1,000,000 unless ratified by voters held not applicable to work of constructing and maintaining state highways (Const. art. 11, §§ 5, 6, 8, 9).

In an action in quo warranto, which questions, on constitutional grounds, the validity of a recent act of the Legislature (chapter 98, Laws 1933, Sp. Sess.), the various questions raised are considered, and it is held, the act is not invalid for any of the reasons urged against it.

Original quo warranto proceeding by the State, on the relation of Roland Boynton, Attorney General, against the Kansas State Highway commission.

Judgment for defendant.

Roland Boynton, Atty. Gen., and Dunkin Kimble and Everett E. Steerman, Asst. Attys. Gen., for plaintiff.

Wint Smith, of Kansas City, and Gale Mose, of Topeka (Kirke W. Dale, of Arkansas City, Frank H. McFarland, of Topeka, and W. H. Vernon, of Larned, of counsel), for defendant.

HARVEY Justice.

This is an original proceeding in quo warranto challenging the authority of the state highway commission to execute and carry out on its part the provisions of chapter 98 of the Laws of the Special Session of the Legislature of 1933, and for a declaratory judgment as to the validity of the act. Among other things, the petition alleges that, proceeding under this act, defendant is about to enter into a contract with the proper agency of the federal government for borrowing the sum of $17,000,000 to be used for the purposes expressed in the act, namely, the construction, improvement, reconstruction, and maintenance of state highways and bridges; that in conformity with the regulations of such federal agency defendant will be entitled to receive, in addition to the sum borrowed, the further sum of $5,100,000 for such use; that to secure such loan defendant will issue and pledge to such federal agency revenue anticipation warrants, payable serially, in not less than three nor more than thirty years, and create a sinking fund for paying such warrants, with interest at a rate of not more than 4 percent., and paying fiscal agency charges, which payments shall not exceed $1,000,000 per year. The petition further alleges the act is invalid, which allegations are put in issue by the answer, for a number of reasons which are stated and argued under seven heads. We shall discuss these in the order presented:

First. Is the act a valid exercise of the police power of the state? Or, stated more specifically, has the state, through its Legislature, power and jurisdiction to provide work for the unemployed, or otherwise care for poor and needy citizens of the state, in view of article 7, § 4, of our Constitution, which reads: "The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants, who, by reason of age, infirmity, or other misfortune, may have claims upon the sympathy and aid of society."

The provision is not self-executing. It requires legislation, and much has been enacted (see R. S. 39--301 to 39--511). There is necessarily vested in the Legislature a discretion as to what may be prescribed by law. Passing that thought, in our governmental scheme these things are fundamental: All governmental power primarily is and originally was vested in the people. Some of these governmental powers were granted to the federal government by our federal Constitution; the others remained with our people. In the formation of our state Constitution some governmental powers were prohibited, others were limited. Except as so prohibited or limited, all governmental power not granted to the federal government remains with the people and may be exercised by them. Normally that is exercised or initiated by legislative enactment. Our Constitution nowhere prohibits the state from making provision by legislative enactment for the care of the poor and needy. See Treadwell v. Beebe, 107 Kan. 31, 38, 190 P. 768, 10 A.L.R. 1359, and authorities there cited. To the extent, therefore, the bill in question attempts to or does furnish relief to the poor and needy it violates no constitutional provision. However, what is said in the act on that subject is in the nature of a preamble, stating reasons or grounds for enacting the statute. The economic depression mentioned in section 1 of the act is not created by this section, and may not be entirely cured by the act. What is stated in the section is valuable, if at all, in aiding the court to understand the purposes, or some of the purposes, of the Legislature in passing the act. Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165; State v. Martin (Wash.) 23 P.2d 1. The validity of the act must be tested by its provisions. The act makes no provision for the relief of poor and needy persons except as some of them may obtain employment in the construction and maintenance of highways contemplated by the provisions of the act.

Second. Is the title of the act valid in view of article 2, § 16, of our Constitution, which reads in part: "No bill shall contain more than one subject, which shall be clearly expressed in its title. ***"

Primarily this provision is one for the benefit of the members of the Legislature to prevent them from being misled or deceived by the title of the bill, but it is one which the Legislature should follow, and a clear disregard of it renders the act invalid. While the title to the act in question is more in detail than necessary--it could have been better drawn with fewer words--it cannot be said either to be misleading, or that it deals with more than one general subject.

Third. Does the act confer legislative authority upon (a) the Governor, (b) the state highway commission, in violation of article 2, § 1, of the Constitution, which reads: "The legislative power of this state shall be vested in a house of representatives and senate."

The duties conferred upon the Governor and state highway commission are no more than those necessary to be exercised by any administrative officer or board in carrying out the will of the Legislature with respect to business transactions, which necessarily call for the use of judgment and discretion.

Fourth. Does the act authorize the withdrawal and expenditure of money over a period of more than two years, in violation of article 2, § 24, of the Constitution, which reads: "No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years."

This act makes no appropriation for any length of time. It outlines a policy and authorizes a plan of conducting certain state business. Perhaps the statute will call for appropriations from time to time--many of our statutes do--but if so, we cannot assume they will not be made. At any rate it is clear this act is not invalid for the reason here urged.

Fifth. Does the act, in permitting money from taxation of motor vehicles and motor fuels to be used in payment of a loan made by the government of the United States and interest and carrying charges thereon, violate article 11, § 4, of the Constitution, which reads: "No tax shall be levied except in pursuance of a law,...