State ex rel. Donaldson v. Hines

• Decision Date: 27 June 1947
• Docket Number: 36955.
• Citation: 163 Kan. 300,182 P.2d 865
• Parties: STATE ex rel. DONALDSON, County Attorney, v. HINES, County Superintendent of Public Instruction, et al.
• Court: Kansas Supreme Court

182 P.2d 865

163 Kan. 300

STATE ex rel. DONALDSON, County Attorney, v. HINES, County Superintendent of Public Instruction, et al.

No. 36955.

Supreme Court of Kansas

June 27, 1947

Syllabus by the Court.

1. The power to establish and reorganize school districts is legislative in character.

2. Legislative powers, as distinguished from administrative cannot be delegated unless there is constitutional sanction therefor. There is no provision in the constitution of Kansas authorizing the legislature to vest in school reorganization committees the power to make legislative regulations concerning the establishment of school districts.

3. The establishment of a uniform system of schools is not a subject of 'local legislation' which can be conferred upon 'tribunals transacting the county business' under Section 21 of Article 2 of the Constitution of Kansas.

4. A delegation of administrative authority must fix a reasonably clear standard which governs the exercise of the authority.

5. The school reorganization act of 1945 (G.S.1945 Supp., 72-5601 to 72-5623, inclusive) does not contain an adequate standard upon which the school reorganization committees, provided for therein, can exercise the authority conferred upon them, and constitutes an improper delegation of legislative power in violation of Section 1, Article 2 of the Constitution of Kansas.

6. All of the sections of the statutes above referred to are connected in the general plan of the act and cannot be separated without violating the evident intent of the legislature, and are, therefore, void.

7. The amendatory school reorganization act of 1947, House Bill No 376 (Chapter 374, Session Laws of 1947) is also void for the reason set forth in syl. par. 5.

8. All of the sections of the 1947 act, House Bill No. 376, are invalid.

George W. Donaldson, Co. Atty., of Chanute, for plaintiff.

Harold R. Fatzer, Asst. Atty. Gen. (Edward F. Arn Atty. Gen., on the brief), for defendants.

Clarence J. Malone, of Topeka, E. E. Kite, of St. Francis, and Marc. Boss, of Columbus, amici curiae.

BURCH Justice.

This action, in the nature of quo warranto, was brought to test the validity of the so-called school reorganization laws. Both the original act of 1945, which is Chapter 291 of the laws of that year, G.S.1945 Supp. 72-5601 to 72-5623, inclusive, and the amendatory act, House Bill No. 376, See Chapter 374, Session Laws, 1947, are challenged. The plaintiff asserts that the involved statutes are unconstitutional for seven reasons. The defendants, of course, vigorously contend to the contrary.

Before giving consideration to the specific questions presented, some general observations should be made. The court is cognizant of the complicated consequences which rest upon the result of the litigation. The court realizes that probably nothing is more essential to the welfare of the state than the maintenance of adequate schools. The court is comprehensive of the complex problems which have confronted the legislature in its efforts to enact satisfactory legislation controlling the controversial questions which arise upon consideration of school reorganizations. As a consequence this case presents an instance wherein the rule relative to the duty of a court to hold that statutes are valid, whenever it is reasonably possible to do so, has profound significance. The court is aware, also, of the thought often expressed to the effect that the constitution must be given flexibility so that it may vibrate in tune with the vicissitudes of time. The court, likewise, is contemporaneously conscious of the admonition that the flexibility theory of constitutional construction should not be followed to the point of regarding the dominant document as being merely worthy of mention. The constitution still stands, not only as the supreme expression of powers granted by the people to their government, but it stands today and should stand tomorrow, staunch and rigid in its restraints upon governmental powers in our system of democracy. With such general concepts in mind, the court has given extended consideration to the statutes which are herein subjected to constitutional tests.

The first contention of the plaintiff is that the powers conferred upon the school reorganization committees in the respective counties by the act of 1945 amounts to a delegation of legislative power in violation of the provisions of Section 1 of Article 2 and Section 21 of Article 2 of the constitution of the State of Kansas. Section 1 of Article 2 reads:

'The legislative power of this state shall be vested in a house of representatives and senate.'

Section 21 of the same article reads:

'The legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient.'

The plaintiff asserts that the establishment or alteration of school districts is a legislative function; that the establishment or alteration of school districts cannot properly be classified as 'county business' or 'local legislation' and that, therefore, the legislative powers cannot properly be delegated to 'tribunals transacting the county business' or any other tribunals.

1. Obviously, the first question which must be answered is whether the creation of school districts or the alteration of their boundaries is a legislative function. Beginning with State ex rel. Attorney General v. Board of Com'rs of Ford County, 12 Kan. 441, this court has held repeatedly that the legislature has 'absolute power over the organization of * * * school-districts * * *.' See, also, School District No. 57 v. Board of Education, 16 Kan. 536, 540; School District No. 70 of Rice County v. Board of Education, 110 Kan. 613, 620, 204 P. 758; State ex rel. v. Mowry, 119 Kan. 74, 78, 237 P. 1032; State, ex rel. Jackson v. School District, 140 Kan. 171, 34 P.2d 102; and State ex rel. Rosenstahl v. Storey, 144 Kan. 311, 58 P.2d 1051 from which the following is quoted:

'We agree with appellee that the questions considered by the state superintendent of public instruction, as shown by his testimony, pertain to the prudence or advisability of establishing the joint rural high school district, with its proposed boundaries, were legislative in character, * * *.' (Emphasis supplied.) (144 Kan. at page 317, 58 P.2d at page 1054.)

The court is of the opinion that consistency commands us to hold that the principal purpose of the act, which was to accomplish the reorganization of schools throughout the state, was legislative in character.

2. The next question which must be considered is whether the legislative power can be delegated to the tribunals named in the statute. If the powers sought to be delegated are legislative in character, as distinguished from administrative, ordinarily they cannot be delegated unless their delegation is authorized by some express provision of the constitution or the authorization arises by reason of clear implication therefrom. Such a result follows from the doctrine of separation of the powers of government. The functions of the legislature must be exercised by it alone and cannot be delegated unless there is constitutional sanction therefor. The opinion in the case of State ex rel. Jackson v. School District, supra, 140 Kan. 171, 34 P.2d 102, reads as follows:

'* * * An attempt to confer such power is said to be an attempt to delegate legislative power, which is futile. This is settled by a long line of decisions, beginning with Commissioners of Wyandotte County v. Abbott, 52 Kan. 148, 34 P. 416, and extending to Barrett v. City of Osawatomie, 131 Kan. 50, 289 P. 970.' (140 Kan. at page 175, 34 P.2d at page 104.) See, also, Oakland State Bank v. Bolin, 141 Kan. 126, 40 P.2d 437, and State ex rel. Rosenstahl v. Storey, supra, and cases therein cited.

The last expression upon the subject by this court will be found in State ex rel. Mitchell v. Jackson County Board of Social Welfare, 161 Kan. 672, 171 P.2d 651. From page 680 of the opinion in 161 Kan., at page 656 of 171 P.2d the following is quoted:

'* * * Legislative power is vested exclusively in the State Legislature except that it is provided in section 21, Article 2 of the Constitution, that 'The legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient.' No such delegation of legislative power to a state board or agency is provided for in the Constitution; and it is well-established law that in the absence of such provision, legislative power cannot be delegated.'

Comprehension of the necessity for constitutional confirmation of the power essential to the delegation of legislative functions forces us to search for the fundamental elements which may give validity and life to the legislation under consideration. Section 3 of Chapter 291 of the Laws of 1945, now G.S. 1945 Supp., 72-5603, provides that 'There is hereby created in each county of the state a school reorganization committee.' The question develops at once, is there any constitutional provision authorizing the formation of a school reorganization committee in each county of the state to which can be delegated legislative power? The constitution contains no express provision to such effect. Section 1 of Article 6 of the constitution reads 'The state superintendent of public instruction shall have the general supervision of the common-school funds and educational interests of the state, and perform such other duties as may be prescribed by law. A superintendent of public instruction shall be elected in each county, whose term of office shall be two years, and whose duties and compensation shall be...