State ex rel. Schneider v. Bennett, 48212

• Decision Date: 06 March 1976
• Docket Number: No. 48212,48212
• Citation: 219 Kan. 285,547 P.2d 786
• Parties: STATE of Kansas ex rel. Curt T. SCHNEIDER, Attorney General, Appellant, v. Robert F. BENNETT, Governor of the State of Kansas, et al., Appellees.
• Court: Kansas Supreme Court

Page 786

547 P.2d 786

219 Kan. 285

STATE of Kansas ex rel. Curt T. SCHNEIDER, Attorney General, Appellant, v. Robert F. BENNETT, Governor of the State of Kansas, et al., Appellees.

No. 48212.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. The separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created by legislative enactments. Individual members of the legislature may serve on administrative boards or commissions where such service falls in the realm of cooperation on the part of the legislature and there is no attempt to usurp functions of the executive department of the government.

2. The separation of powers doctrine prohibits individual members of the legislature from serving on administrative boards or commissions where such service results in the usurpation of powers of another department by the individual legislators.

3. When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented.

4. A usurpation of powers exists where there is a significant interference by one department with operations of another department.

5. In determining whether or not a usurpation of powers exists a court should consider (1) the essential nature of the power being exercised; (2) the degree of control by one department over another; (3) the objective sought to be attained by the legislature; and (4) the practical result of the blending of powers as shown by actual experience over a period of time.

6. Statutory powers vested in the state finance council with respect to expenditures from the state emergency fund (K.S.A.1975 Supp. 75-3713 and 75-3713a) and its authority to order the issuance of certificates of indebtedness (K.S.A.1975 Supp. 75-3725a) are not unconstitutional as a violation of the separation of powers doctrine.

7. Statutory powers vested in the state finance council as considered and set forth in the opinion which involve supervision and control over the operations of the state department of administration and its divisions are held to be an unconstitutional usurpation of executive powers by the legislative department in violation of the separation of powers doctrine.

8. Statutory powers vested in the state finance council as considered and set forth in the opinion which involve the authority to approve expenditures from special revenue funds in excess of fixed statutory limits are held to be an unconstitutional delegation of legislative power without adequate standards of guidelines.

John R. Martin, First Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellant.

Charles N. Henson, Eidson, Lewis, Porter & Haynes, Topeka, argued the cause, and was on the brief for appellees.

Robert A. Coldsnow, Kansas Legislative Counsel, Topeka, was on the brief amicus curiae, for the Kansas Senate, Kansas House of Representatives, and Kansas Legislative Coordinating Council.

PRAGER, Justice:

This is an action in quo warranto brought by the state of Kansas on the relation of the attorney general as plaintiff seeking to oust members of the state finance council from the exercise of various powers and responsibilities placed in them by statute. Judgment was entered by the district court in favor of the defendants-appellees denying the relief sought by the plaintiff. Because of a change in the personnel of the state finance council an order has been entered by this court substituting new parties defendant for certain original parties. Sen. Ross O. Doyen, president of the Kansas senate, has been substituted for Richard D. Rogers who no longer holds that position. Sen. Wint Winter has been substituted for Sen. Ross O. Doyen, who was formerly chairman of the senate ways and means committee. Rep. John F. Hayes, as majority floor leader of the Kansas house of representatives has been substituted for Donn J. Everett, who formerly held that position. Rep. John Carlin, as minority floor leader of the house of representatives, has been substituted for Richard C. 'Pete' Loux. The remaining original defendants are Robert F. Bennett, governor of Kansas; Rep. Duane S. 'Pete' McGill, speaker of the Kansas house of representatives; Sen. Joseph C. Harder, majority floor leader of the Kansas senate; Sen. Jack Steineger, minority floor leader of the Kansas senate; and Rep. Wendell Lady, chairman of the house of representatives ways and means committee. All legislator defendants are members of the state finance council by virtue of their legislative positions.

The questions presented in this case are entirely questions of law. The case must be determined on the basis of statutes creating the state finance council and prescribing the duties and powers thereof. It is the position of the attorney general that the exercise of certain statutory duties and powers of the state finance council by the legislative members of that body violates the constitutional doctrine of the separation of powers and that the exercise of certain other statutory duties constitutes an unlawful delegation of legislative powers.

Cases involving alleged violations of the separation of powers doctrine have been before this court on many occasions. The separation of powers doctrine was most recently discussed in Leek v. Theis, 217 Kan. 784, 539 P.2d 304. Leek involved the question of whether K.S.A. 22-3707, providing for senatorial approval or rejection of gubernatorial appointments to the Kansas Adult Authority, is constitutional. Although Leek did not involve an attempt by the state legislature to have its own members serve on an administrative board, Leek is important because it discusses in some detail the separation of powers doctrine and some of the general principles pertaining thereto. Like the Constitution of the United States, the Constitution of Kansas contains no express provision requiring the separation of powers, but all decisions of this court have taken for granted the constitutional doctrine of separation of powers between the three departments of the state government-legislative, executive and judicial. The separation of powers doctrine was designed to avoid a dangerous concentration of power and to allow the respective powers to be assigned to the department most fitted to exercise them. (Van Sickle v. Shanahan, 212 Kan. 426, 446, 511 P.2d 223.) In Van Sickle Mr. Chief Justice Fatzer set forth an excellent history on the separation of powers doctrine which does not need further elaboration here.

Throughout the judicial history of this state two basic approaches have been taken toward the doctrine. Some courts have applied the separation of powers doctrine strictly, refusing to tolerate the members of one department performing any duties traditionally assigned to a different department. A good example of this approach is that of Mr. Justice Smith in the majority opinion in State v. Johnson, 61 Kan. 803, 60 P. 1068, decided in 1900. There Mr. Justice Smith declares that the Constitution of Kansas has created three distinct and separate departments of government and that the functions of the three departments should be kept as distinct and separate as possible, except so far as the action of one is made to constitute a restraint upon the action of the other to keep them within proper bounds and to prevent hasty and improvident action. At times the strict view has been applied without qualification to the point that if any department of government acts in any way beyond the bounds of its designated power such action is without jurisdiction, unconstitutional and void.

Although the theoretical separation of powers of government was strictly enforced in our early history without qualification, the more recent cases have modified the doctrine and applied a more practical approach. In Leek it is pointed out that despite the excellent theoretical framework which various cases have constructed this court has held the separation of powers of government has never existed in pure form except in political theory. This view was taken in 1900 by Mr. Chief Justice Doster in his dissenting opinion in State v. Johnson, supra, where he states as follows:

'. . . I wish to say that in the practical affairs of government there is not and cannot be any such thing as a clearly defined and complete separation of such powers. There is not and cannot be any such thing as a legislature which wills and ordains, and nothing else; a judiciary that interprets and decides, and nothing else, and an executive that enforces, and nothing else. The metaphysical distinction between the spheres of will, judgment and action cannot be applied in the domain of political science. In the practical affairs of government the distinction between legislator, judge and executioner is speculative and doctrinal, rather than actual, and the lines of demarcation between them vague and fanciful, rather than real. There are points at which the functions of the one assimilate so closely to the others as to be impossible of detection and separation. The most that can be done is to recognize the theoretical classification made and preserve in general outline the distinction drawn. Modern political science has, however, generally discarded this theory (the distribution of governmental powers), both because it is incapable of accurate statement, and because it seems to be impossible to apply it with beneficial results in the formation of any concrete political organization." (p. 837, 60 P. p. 1079.)

In our judgment a strict application of the separation of powers doctrine is inappropriate today in a complex state government where administrative agencies exercise many types of power including legislative, executive, and judicial powers often blended together...