State ex rel. Fatzer v. Anderson
| Decision Date | 30 June 1956 |
| Docket Number | No. 40265,No. 1,B,1,40265 |
| Citation | 180 Kan. 120,299 P.2d 1078 |
| Parties | STATE of Kansas ex rel. Harold R. FATZER (John Anderson, Jr., substituted), as Attorney General of the State of Kansas, Plaintiff, v. A. E. ANDERSON, Howard Bentley, Clyde Littler, Dale E. Saffels, Donald S. Hults, C. L. Huxman and R. C. Woodward, as Members of the Pretended Legislative Investigating Committee Created Pursuant to House Joint Resolutionudget Session of 1956; R. T. Fadely, State Treasurer, and Roy Shapiro, Controller of State, Defendants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In an original action in quo warranto wherein the state on the relation of the attorney general seeks to oust the members of a committee of the legislature appointed pursuant to a House Joint Resolution passed by the legislature at the session meeting for the first time in an even-numbered year pursuant to Article 2, § 25, as amended by the people at the election of 1954, the amendment provided:
Held, (a) our constitution limits rather than confers powers; (b) the amendment limits the legislature to a consideration of four subjects (1) the governor's budget report; (2) appropriation bills for the succeeding year; (3) revenue bills necessary therefor; and (4) such bills, resolutions or motions as might be necessary to provide for the expenses and conduct of the budget session; and (c) House Joint Resolution No. 1 of the above session dealt with none of the above subjects and (d) House Joint Resolution No. 1 is unconstitutional and confers no power whatever on the members of the committee attempted to be created thereby.
John Anderson, Jr., Atty. Gen., argued the cause, and Paul E. Wilson, Robert E. Hoffman, and Robert J. Roth, Asst. Atty. Gen., were with him on the briefs for plaintiff.
W. D. Jochems and George Stallwitz, Wichita, argued the cause and W. F. Lilleston, Wichita, was with them on the briefs for defendants.
This is an original action in quo warranto wherein the state on the relation of the attorney general seeks to oust a committee of the legislature from carrying out powers purporting to be conferred on it by a resolution of the budget session of 1956 and to oust the members of the committee and each of them as members of the committee and the state treasurer and controller of the state from expending or disbursing any funds pursuant to the resolution.
The case reaches us on the second amended petition. It alleged the defendants, Anderson, Bentley, Littler, Saffels, Hults, Huxman and Woodward were members of the pretended committee created pursuant to House Joint Resolution No. 1, Budget Session of 1956; that Fadely and Shapiro were the state treasurer and controller; that pursuant to Section 25 of Article 2 of the State Constitution, as amended by the people at the general election of 1954, the legislature assembled at the state capitol on January 19, 1956, for the purpose of holding a budget session, as contemplated by Section 25 of Article 2; that while so assembled the legislature did purport to enact House Joint Resolution No. 1 creating the pretended legislative investigating committee as an interim committee to meet and investigate other agencies of the state government during the period between the sine die adjournment of the 1956 budget session and the convening of the regular session of 1957; that the defendant members of the committee were purporting to act in their capacity as members of the investigating committee and were about to assume and exercise the powers purported to be granted House Joint Resolution No. 1.
The amended petition then alleged the resolution was unconstitutional and void because it violated Section 25 of Article 2 for the reason it was enacted for a purpose aside from and in excess of the matters to which the above section limited the budget session; that Section 25 of Article 2, provided in pertinent part that the legislature shall meet in budget sessions of not to exceed thirty calendar days duration in each even numbered year, commencing with the year 1956, at which budget session 'the legislature shall consider only the governor's budget report, appropriation bills for the succeeding fiscal year, revenue bills necessary therefor, and such bills, resolutions or motions as may be necessary to provide for the expenses and conduct of the budget session.'
The amended petition further alleged the legislature while assembled in its budget session of 1956 was without power to create during that session a continuing committee to exercise any of the powers of the legislature after adjournment of the budget session; that the power of the defendant members of the committee to act as members of the senate and house of representatives terminated with the sine die adjournment of the 1956 budget session, and after that date the defendants were without power to exercise any inherent or delegated powers incidental to their official positions, or to perform any of the acts purported to be authorized by House Joint Resolution No. 1.
The amended petition further alleged that the resolution was unconstitutional because it purported to grant pay to the members of the legislature purporting to act in their legislative capacities beyond the limitations imposed by Article 2, § 25, of the Constitution; that the pay provided for in the resolution was in excess of the sum allowed by Article 2, § 3, of the Constitution, all members of the committee having received and having been paid to the full extent their allowable pay for the 1955 session and the budget session of 1956; that the resolution was an attempt to extend the life and power granted the 1956 budget session beyond the thirty days to which it is limited in violation of the express inhibition of Article 2, § 25; that House Joint Resolution No. 1, as introduced in the house of representatives in January 1956, was not an 'appropriation bill for the succeeding fiscal year' nor was it a 'revenue bill necessary therefor' nor a 'bill, resolution or motion as may be necessary to provide for the expenses and conduct of the budget session' nor a part of the 'governor's budget report'; that on January 30, 1956, the state senate amended House Joint Resolution No. 1 to include Section 7, purporting to appropriate from the state general revenue fund the sum of $75,000 for the purpose of carrying out the unlawful powers purported to be authorized by the remaining provisions of the resolution and the resolution as so amended was passed by the senate on the 30th day of January, 1956; that the resolution as amended was concurred in by the house on January 31, 1956, signed by the governor on February 7, 1956, and duly published; that the resolution as amended was unconstitutional and void for the further reason that it contained more than one subject in violation of Section 16 of Article 2, of the Constitution, which provides in part 'No bill shall contain more than one subject.'
The amended petition then alleged there was no need for the committee for the reason that the powers purportedly imposed upon it were fully provided for in Chapter 46, Article 2, General Statutes of 1949, which authorized the legislative council to perform all the duties purported to be conferred upon it; that the resolution provided for a duplication of the functions conferred by law on the council; that an appropriation of $75,000 was made by the 1956 budget session to the council for the purpose of carrying on within the provisions of that law such investigating procedures as were deemed necessary by the Kansas legislature for further budgeting purposes.
The amended petition further alleged that Shapiro and Fadely would unless ousted from so doing disburse funds belonging to the state, pursuant to orders of the defendant committee under the purported authority of the resolution.
The prayer was as already set out in this opinion.
To this amended petition the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against defendants.
House Joint Resolution No. 1, as amended by the senate and concurred in by the house, will be found attached to this opinion as Exhibit B.
The action arises out of the activities of the first session of our legislature to take place following the adoption by the people of an amendment to our constitution submitted to them at the general election of 1954.
Prior to that time our legislature had since 1877 met biennially except when called in session by the governor 'on extraordinary occasions' pursuant to Article 1, § 5 of the Constitution. Article 2, § 25, of the Constitution prior to the adoption of the recent amendment provided as follows:
'All sessions of the legislature shall be held at the state capital, and beginning with the session of eighteen hundred and seventy-seven, all regular sessions shall be held once in two years, commencing on the second Tuesday of January of each alternate year thereafter.'
The amendment to that section pursuant to which the legislature met for the 1956 budget session provides as follows:
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