State v. Kelly

Decision Date07 July 1905
Docket Number14,438
PartiesTHE STATE OF KANSAS, ex rel. C. C. Coleman, as Attorney-general, v. T. T. KELLY, as Treasurer, etc., et al
CourtKansas Supreme Court

Decided. July, 1905.

Original proceeding in mandamus.


THIS proceeding was instituted in this court by the state, on the relation of the attorney-general, for a peremptory writ of mandamus to compel Thomas T. Kelly, as state treasurer, and E. B. Jewett, as warden of the state penitentiary, to execute, negotiate and sell certain bonds on behalf of the state of Kansas and apply the proceeds as directed by senate bill No. 30 (Laws 1905, ch. 478). An alternative writ was allowed, to which the defendants separately answered that the state was proceeding under an act authorizing them, in their official capacities, to issue and sell the bonds in question and apply the proceeds thereof to the construction maintenance and operation of a state oil-refinery at Peru all of which would be one of those "works of internal improvement" to the carrying on of which the state may never be a party without violating the provisions of section 8 of article 11 of the constitution.

In reply to the claim of defendants the state contends that the intention of the legislature was to build a branch penitentiary in that part of the state where oil is found in large quantities, and, incidental thereto and as a part thereof, for the purpose of furnishing proper employment for the inmates of the state penitentiary, to build and operate an oil-refinery. Anticipating the position that would be assumed by the state, the defendants separately pleaded certain extraneous facts for the purpose of laying the foundation for the introduction of evidence tending to prove that the state had a penitentiary of sufficient capacity for all convicts of the state, complete in all its details, with ample and suitable means for their employment; that the operation of the oil-refinery contemplated would not furnish employment for more than fifteen persons; that the employees in an oil-refinery should be persons skilled in the business of refining oil, and that none of the convicts in the state penitentiary is thus skilled or has had any such experience. The state moves that these extraneous allegations be stricken from the proceedings. The parties have agreed to certain facts and have filed the depositions of certain witnesses. All questions that the court deems competent and material to the determination of any of the issues involved are considered in the opinion.

Peremptory writ denied.



1. STATUTORY CONSTRUCTION--Methods of Interpretation. In the interpretation of an ambiguous statute courts should examine it in the light of the history of its enactment as disclosed by the journals of the legislature, the contemporary history of the conditions and situation of the people, the economic and sociologic policy of the state, its constitution and laws, and all other matters of common knowledge within the limits of their jurisdiction.

2. STATE OIL-REFINERY--"Work of Internal Improvement." The construction, operation and maintenance of an oil-refinery for the purpose of receiving, manufacturing, storing and handling crude and refined oil and its by-products, and marketing the same, constitute a "work of internal improvement."

3. STATE OIL-REFINERY--Act of 1905 Void. Senate bill No. 30 (Laws 1905, ch. 478) is an act appropriating money for "works of internal improvement." It contravenes section 8 of article 11 of the constitution, and hence is void.

C. C. Coleman, attorney-general, S. M. Porter, and W. S. Fitzpatrick, for The State.

Mulvane & Gault, J. W. Gleed, and John L. Hunt, for defendants; Gleed, Ware & Gleed, and D. E. Palmer, of counsel.

GREENE J. All the Justices concurring.



The sole question in this proceeding is the constitutionality of the act of 1905 called the "oil-refinery bill." In its consideration the object of the statute--that is, the good that the legislature intended to accomplish, or the evil that it intended to prevent or correct--must be determined. Whether this law is simply a provision for securing larger and better facilities for the maintenance, employment and care of the inmates of the penitentiary, thus accomplishing a good work, or a provision for constructing, operating and maintaining an oil-refinery, thus attempting to correct a great evil, is of supreme importance.

In construing a statute resort should first be had to the language of its provisions. If it be found that a clear and definite meaning may be ascertained by giving the words their common signification, the court has no choice or discretion to exercise; its only duty is to declare the result of its investigation. An observance of this rule requires the court to consider every part of the act, and, if possible, to discover from the whole the legislative intent. Another requisite rule of construction is that where it is doubtful which of two objects the legislature had in view, one being within its authority and the other not, the language must be given a broad and liberal interpretation, and. an endeavor made to apply the act to the object within. the legislative authority. All presumptions are resolved in favor of the constitutionality of a statute, and when doubt is entertained its language should be given that construction which will sustain it. (The People, ex rel. Sinkler, v. Terry, 108 N.Y. 1, 14 N.E. 815; Miller v. Dunn, 72 Cal. 462, 14 P. 27, 1 Am. St. Rep. 67; City of San Diego v. Granniss, 77 id. 511, 19 P. 875; Mauldin v. City Council, 42 S.C. 293, 20 S.E. 842, 27 L. R. A. 284, 46 Am. St. Rep. 723; Wenger v. Taylor, 39 Kan. 754, 18 P. 911.)

We confess to great difficulty in determining the object of the act under consideration. The title expresses it in this way:

"An act to provide for a branch penitentiary and oil-refinery in connection therewith, the issuance of bonds for said purpose, and making an appropriation therefor, and for the payment of principal and interest on said bonds." (Laws 1905, ch. 478.)

The title indicates that it was the intention to build and maintain a branch penitentiary, and also to build an oil-refinery. Section 1 provides:

"For the purpose of providing proper employment for convicts confined in the state penitentiary, the warden of the Kansas state penitentiary is hereby empowered, by and with the advice of the board of directors of said penitentiary, to secure, without expense to the state, a suitable site for the erection of a branch of the state penitentiary and oil-refinery at Peru." (Laws 1905, ch. 478.)

Here again appears the double purpose--a branch of the state penitentiary, and an oil-refinery. The subsequent provisions of the section do not indicate an intention to build a branch of the state penitentiary, but go into great detail for the construction, maintenance and operation of an oil-refinery for the manufacture of crude and refined oil and its by-products, and the warden of the state penitentiary is required to keep such refinery in repair and furnish the requisite machinery, equipments and instrumentalities for receiving, manufacturing and storing crude and refined oil, and marketing the same. No reference is made to the construction or maintenance of a branch of the state penitentiary, its dimensions, the number of rooms, the material of which it shall be constructed, or that any shall be constructed.

Section 2, however, makes some reference to a branch penitentiary, but closely connects it with the oil-refinery. It provides that in "constructing, maintaining and operating such branch penitentiary and oil-refinery, said warden and board of directors are hereby authorized to employ convicts in the state penitentiary." The latter part of this section makes a specific provision with reference to a so-called branch of the state penitentiary, authorizing the officials to provide "suitable and humane facilities for the housing, feeding, guarding and overseeing of said convicts and the work to be performed by them."

The only other reference in the act to the construction of a branch penitentiary is in section 3, where an appropriation of $ 10,000 is made for the construction of suitable quarters and facilities for housing, feeding, guarding and overseeing the convicts at the branch penitentiary. It also makes an appropriation of $ 200,000 for the construction of an oil-refinery plant, and $ 200,000 more for operating and keeping the same in repair, the purchase of crude oil, and the expense of receiving, refining, storing, handling and marketing its products.

From these provisions alone it is doubtful whether the primary object of the bill was to build a branch penitentiary at Peru, where oil is produced in great quantities, and incidentally thereto, and for the purpose of furnishing employment to the convicts confined therein, to build and operate an oil-refinery, or whether it was to construct and operate an oil-refinery plant in this oil-field, and operate it, so far as possible, by convicts in the state penitentiary, with such provisions, and only such, for the housing, guarding and feeding of such convicts as would be necessary for their care while employed in the refinery. But for the rule previously stated--that all presumptions are in favor of the constitutionality of a statute and that all doubts should be resolved in support of it--and but for other means of information than the language of the act, we would be strongly inclined to hold that the legislature regarded the building and operating of the oil-refinery as of paramount importance.

Where however, an act is so ambiguous, indefinite and uncertain that it is doubtful which of two objects the...

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