State Ex Rel. Anderson v. Fadely

Schboeder, J.

(concurring): As to that portion of the opinion corresponding to paragraph 8 of the syllabus, I concur in the result only, since in my opinion it presents inadequate reason and authority on the special facts before this court. Concerning the other portions of the majority opinion I concur fully.

Do the provisions of the state finance council act appointing legislative members ex-officio to the council violate the fundamental principle of the separation of powers inherent in our state constitution? This question will be dealt with in two parts: (a) Do the provisions of Art. 2, § 19, and Art. 15, § 1, imposing upon the legislature the duty to provide for the election or appointment of individuals to all positions, not otherwise provided for in the constitution, carry with them the power to appoint members to positions created by the legislature in either the executive or the judicial departments?; (b) Does the separation of powers in the state constitution into legislative, executive, and judicial departments create an implied inhibition against the usurpation by one department of the powers which belong to another?

The Attorney General by this proceeding in mandamus asks that this court overrule the case of State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 692-696 , 273 P. 2d 198 . He argues, in effect, that the court is lifting itself by the boot straps in the Turnpike case. The court there said:

“We first note that there is no provision of our constitution with reference to the power of the legislature to provide that some one or more of its members shall be ex-officio members of a board, commission or other body created by it. That the legislature has so provided in many instances must be conceded. We are not disposed to search for all statutes where it has done so but a list would include the following from G. S. 1949:

“20-2201, creating the judicial council of which the chairmen of the judiciary committees of the house and senate are ex-officio members (no salary but are paid necessary expenses);

“46-404, creating the Kansas commission on interstate cooperation of which the five members of the senate committee on interstate cooperation and the five members of the like house committee are made members. No provision is made as to salary or expenses;

“And see 46-301 et seq. and 46-401 et seq. for other instances where members of the legislature are ex-officio members of councils or boards created;

“76-201 et seq., creating a committee to investigate complaints of official misconduct for which five members of the legislature are to be appointed and *690 to receive the per diem and mileage they would be entitled to during the session of the legislature.

“And the following instances may be found in G. S. 1953 Supp.:

“74-4301 et seq., creating the motor vehicle reciprocity commission of which the chairmen of named committees of the legislature are made ex-officio members and to receive actual expenses but no compensation for services;

“75-3601 et seq., creating the state office building commission to which only members of the legislature shall be appointed, and omitting provisions as to expiration of term, they shall not be entitled to any compensation ‘during any regular or special session of the legislature’;

“75-3708, creating the state finance council consisting of six members including the president pro tern of the senate, the speaker of the house and the chairmen of the ways and means committees of the senate and the house, who shall be compensated for time spent in attendance at meetings at the rate of twenty dollars per day and actual traveling and necessary expenses in attending meetings.

“It has been repeatedly held that questions of public policy are for legislative and not judicial determination, and where the legislature does so declare, and there is no constitutional impediment, the question of the wisdom, justice or expediency of the legislation is for that body and not for the courts (see West’s Kan. Dig., Const. L. § 70 (3) and Hatcher’s Kan. Dig., Const., L. § 31).

“The State’s contention that the act constitutes an unauthorized attempt to confer executive power upon members of the legislature is not extended further than to the appointment of two of its committee chairmen as ex-officio members of the Authority. While the legislature cannot interfere with nor exercise any powers properly belonging to the executive, it may engage in activities which may properly be regarded as incidental to and within the scope of its legislative duties, and it is not an encroachment on the executive for the legislature to create a commission and to designate its members to perform delegable legislative duties. See 16 C. J. S. pg. 332, et seq. [Particularly, Constitutional Law, §§ 97 to 100 inch, pp. 344-469.] A power of appointment is not an exclusive function of the executive, nor has it ever been so considered. The above statutes and many others that could be cited demonstrate it has not been so considered, and if it were fully so this court would be without authority to appoint its own clerk and reporter. Insofar as the State’s argument that the salary of a legislator is increased beyond constitutional limitations is concerned, it is observed that the compensation paid is not connected with any duty those named persons have as members of the legislature, but is for the performance of administrative duties as members of tire Authority.

“We are of the opinion the contention made under this heading cannot be sustained.”

■ This court after having given full consideration to this question, which was decided by a unanimous court as then constituted, the decision of which was announced on July 24,1954, is now requested in substance to break faith and do an about face.

The doctrine of stare decisis is a well-established general rule that *691 when a principle of law has become settled by decision, it forms a precedent which is not afterwards to be departed from. This rule is based on expediency and public policy, and although generally it should be strictly adhered to by the courts, it is not universally applicable. It is, however, indispensable to the due administration of justice, especially by a court of last resort, that a question once deliberately examined and decided should be considered as settled and closed to further argument. (21 C. J. S., (Courts, § 187, pp. 302 and 303.)

On October 14,1954, by force of the constitutionality of the Turnpike Act $160,000,000.00 in bonds, the principal amount of the turnpike revenue bonds, were sold and delivered to Smith, Barney & Company and The First Boston Corporation. These bonds then found their way to the investing public in all parts of the country. The proceeds were applied to the construction of the Kansas Turnpike and its operation. (Kansas Turnpike Authority — Third Annual Report, 1955, pp. 8 and 9.) If the doctrine of stare decisis has force, it should be applied with greater force under the circumstances now present.

In the case now before the court the same identical question is presented relative to the designation of legislative members to serve ex-officio on the state finance council which the legislature created by enactment.

The first question considered is: Do the provisions of Art. 2, § 19, and Art. 15, § 1, imposing upon the legislature the duties to provide for the election or appointment of individuals to all positions, not otherwise provided for in the constitution, carry with them the power to appoint members to positions created by the legislature in either the executive or the judicial departments?

These sections so far as here applicable, read:

“. . . It shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.” (Art. 2, § 19.)

“All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.” (Art. 15, § 1.)

The constitution of the state of Kansas limits rather than confers power, and where a statute is attacked as unconstitutional the question to be determined is not whether its provisions are authorized by the constitution, but whether they are prohibited by it. (Lemons v. Noller, 144 Kan. 813 , 63 P. 2d 177 ; State, ex rel., v. Ancient Order *692 of United Workmen, 178 Kan. 69 , 283 P. 2d 461 ; State, ex rel., v.. Anderson, 180 Kan. 120 , 299 P. 2d 1078 .)

The long and well-established rules of this jurisdiction relative to the presumption of constitutionality of a statute and rules' of construction are succinctly set forth in the majority opinion. To unduly burden this opinion by repetition would serve no purpose. These rules are fully applicable to the questions discussed herein and specific reference is made to them. (Hunt v. Eddy, 150 Kan. 1, 4 , 90 P. 2d 747 ; Carolene Products Co. v. Mohler, 152 Kan. 2 , 102 P. 2d 1044 ; Board of County Comm'rs v. Robb, 166 Kan. 122 , 199 P. 2d 530 ; State, ex rel., v. Board of Regents, 167 Kan. 587 , 207 P. 2d 373 ; Marks v. Frantz, 179 Kan. 638 , 298 P. 2d 316 ; State, ex rel., v. Board of Education, 137 Kan. 451, 455 , 21 P. 2d 295 ; State, ex rel., v. State Highway Comm., 163 Kan. 187 , 182 P. 2d 127 .)

There is no express provision of the constitution which restricts or limits the power of the legislature to appoint its members to boards or commissions created by legislative enactment. Then, is there a restriction or limit implied from the inherent provisions of the constitution which provides for three distinct and separate departments of government — legislative, executive and judicial? To create by implication an inhibition there must be some express affirmative provision. The mere silence of the constitution creates no prohibition. To sustain an implied inhibition, the express provision must apply to the exact subject matter. (Prouty v. Stover, Lieut. Governor, 11 Kan. 235 ; Lemons v. Noller, supra.) An implied prohibition is as potent as an express inhibition, but it must be as plain as an express inhibition, and in order that it may be so, the implication must arise from an express provision. (Bank v. Laughlin, 111 Kan. 520 , 207 Pac. 433 .)

A power of appointment is not an exclusive function of the executive department, nor has it ever been so considered. (State, ex rel., v. Kansas Turnpike Authority, supra.) If there existed in the provisions of Art. 2, § 19, and Art. 15, § 1, an implied inhibition that the legislature could not appoint members to a board or commission of its own creation, then obviously it could not even appoint members to a board or commission created by its own enactment to perform strictly legislative duties and functions, whether temporary or permanent. No implied inhibition arises from these sections of the constitution alone. This question is not controverted.

Once the true meaning of Art. 2, § 19, and Art. 15, § 1, considered *693 separate and apart, crystalizes, it follows that an inhibition of the legislature to appoint members to boards or commissions created by the legislature in either the executive or judicial departments must be implied strictly from the inherent separation of powers of the three departments of government in our constitution.

Further consideration of this point leads to a discussion of the next point.

Does the separation of powers in the state constitution into legislative, executive, and judicial departments create an implied inhibition against the usurpation by one department of the powers which belong to another?

The language as generally used in cases involving a constitutional question is prone to waive in terms of broad generalities which are hard to pinpoint to the application of facts until such time as the writer of the opinion comes to the conclusion that the matter before the court is or is not constitutional.

It is neither difficult by continued repetition of constitutional theory, as expressed in relation to other facts before a particular court, to conjure in the mind of the reader an impression of facts which do not exist, nor is it difficult to present other facts and circumstances as hypothetical fodder for argument. One should not be overcome by the repetition of theory piled higher and higher in matters concerning the separation of powers before the facts and practical aspects of the problem have been thoroughly exploited by judicial thought.

Presently before the court is a specific set of facts and circumstances definitely limited and very narrow in scope concerning which a constitutional attack is made. Of importance to this action in mandamus is whether the state treasurer and controller should be compelled to transfer all moneys in the state emergency fund to the general revenue fund in the state treasury. It is limited to the specific enactments involving this fund and its administration by the state finance council. Constitutions and enactments of other states or general statements of law based upon facts, circumstances and statutes dissimilar to the precise case before us are misleading and immaterial.

Material to this discussion are only a few specific statutes. They are: G. S. 1955 Supp., 75-3708, creating the state finance council; G. S. 1955 Supp., 75-3711, prescribing the powers and duties of the *694 state finance council and specifically setting forth in Subsection 4 thereof:

“Make allocations to, and approve expenditures by a state agency, from any appropriations to the finance council for that purpose, of funds for unanticipated and unbudgeted needs, under conditions and limitations prescribed by the legislature”;

G. S. 1955 Supp., 75-3712, providing as follows:

“The state emergency fund created by section 74-4105 of the General Statutes of 1949 is hereby continued in the office of the treasurer of state for the use of the state finance council created by section 8 [75-3708] of this act for the purposes and within the limitations prescribed by sections 13 [75-3713] and 14 [75-3714] of this act.”;

and G. S. 1955 Supp., 75-3713, providing for the allocation to, and expenditure of funds by, state agencies from the state emergency fund in case of emergency and extraordinary circumstance. It must be emphasized that fire duties and functions of the state finance council beyond the administration of the provisions of G. S. 1955 Supp., 75-3713, are not presently before the court. For the specific point now under consideration, let us examine the structure in the state finance council.

Its organizational structure, found in G. S. 1955 Supp., 75-3708, consists of six members, the members of which shall be (1) the Governor, (2) the Lieutenant Governor, (3) the President Pro Tem of the Senate, (4) the Speaker of the House of Representatives, (5) the Chairman of the Senate Committee on Ways and Means, and (6) the Chairman of the House of Representatives Committee on Ways and Means. The act specifically provides that the governor shall be the chairman and the executive director shall be the secretary of the council but shall not be a member of such council.

The provisions of G. S. 1955 Supp., 75-3713, provide among other things that the state finance council by unanimous vote of all its members is authorized and empowered to make allocations to, and authorize expenditures by, state agencies from the state emergency fund for the specific purposes specified, they being enumerated conditions of emergency and extraordinary circumstance. It is readily apparent from the foregoing that the chief executive of the state, the governor, has a negative power of control over the state finance council as well as do each of the other members by reason of the veto provision in the act itself which authorizes expenditures from the state emergency fund. The chief *695 executive of the state likewise hy the provisions of the enactment (G. S. 1955 Supp., 75-3708) here under consideration has a positive control over the state finance council by reason of the fact that he is made the chairman. Thus, in its legislative wisdom the law making body has specifically taken the precaution to provide the organizational structure for the state finance council and proscribe its limitations.

An analogous situation exists under the laws governing the United Nations. By provisions of the Charter of the United Nations, Chapter 5, Article 23, Section 1, the security council is made up of eleven members of the United Nations. Of those eleven members, five members are permanent members of the security council. Then by the provisions of Chapter 5, Article 27, Section 3, decisions of the security council on all matters other than procedural shall be made by an affirmative vote of seven members including the concurring votes of all the permanent members. This is the famous provision which grants to any one of the five permanent members the right of veto. No one of these permanent member nations on the security council has contended that their rights of sovereignty have been surrendered by reason of their participation in the United Nations as.a subscribing member, and no case has been found on the constitutional question in the Supreme Court of the United States indicating that the sovereignty of the United States has been jeopardized or surrendered by reason of its participation as a member nation, it being one of the permanent members of the security council. In fact, by the provisions of the Charter of the United Nations, Chapter 1, Article 2, Section 1, the organization of the United Nations is based on the principle of the sovereign equality of all its members.

There is little difficulty in concluding that the members of the state finance council operate and function as individual members of an administrative body in the performance of administrative duties. As individuals, they must cooperate with each other in this administrative capacity to function as a state finance council at all. When they cease to cooperate they cease to function for the simple reason that any member has a power of veto. Likewise, four members of the state finance council being ex-officio legislative members, it cannot be overlooked as a practical matter that as between the legislative and the executive departments of our government the enactment contemplates comity and coopera *696 Ron and not a blending of powers. When either of these attributes of the enactment under consideration, that is, comity and cooperation as between the two departments or cooperation among the individual members serving on the state finance council, break down, the state finance council ceases to function concerning expenditure for matters of emergency and extraordinary circumstance confronRng our state government. The governor confronted with an emergency in such event, if the legislature is not in session and necessity requires, must convene the legislature pursuant to his powers under the provisions of Art. 1, § 5, of the constitution.

There is no quarrel with the law that the constitutton of Kansas creates three distinct and separate departments — the legislative, the executive, and the judicial. In this respect, our state constitution is the same as our federal constitution. In O’Donoghue v. United States (1933), 289 U. S. 516 , 53 S. Ct. 740 , 77 L. Ed. 1356 , Justice Sutherland speaking for the court said:

“The Constitution, in distributing the powers of government, creates three distinct and separate departments — the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, . . . namely, to preclude a commingling of these essentially different powers of government in tire same hands. . . .

“If it be important thus to separate die several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others — independent not in the sense diat they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected directly or indirectly, to, the coercive influence of either of the other departments. . . .” (Emphasis added)

See also: 11. Am. Jur., ConsRtuRonal Law, §187, p. 886; and 16 C. J. S., ConsRtuRonal Law, § 130, pp. 545-547.

On the facts before this court we are confronted quite definitely with a cooperative proposition on matters of emergency and extraordinary circumstance, and not one which consists of the usurpation of power by the legislature over the execuRve or vice versa. At no place in the enactments under consideraRon is one department of the government subjected directly or indirectly to the coercive influence of the other. It was aptly said by Justice Sutherland in the foregoing quoted portion of the opinion that the independence of the departments in government does not mean *697 independent in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the constitution.

It is significant to point out that the portion of the state finance council act presently before the court does not consist of an effort on the part of the legislature to create an agency of the state made up of a collection of its own members only as was true in the case of Stockman v. Leddy, 55 Colo. 24 , 129 Pac. 220 . The authority and duty of the governor of the state to faithfully execute the laws enacted by the legislature is not in any way infringed by the state finance council enactment insofar as the question is now before this court.

Under all the facts and circumstances here considered the legislature has seen fit to set up a cooperative plan in the public interest and the wisdom of such plan is not for the judiciary to pass upon but only to determine whether the enactment complies with the requisite constitutional safeguards. (Noel v. Menninger Foun dation, 175 Kan. 751 , 267 P. 2d 934 ; McAllister v. Fair, 72 Kan. 533 , 84 Pac. 112 ; 115 Am. St. Rep. 233 ; 3 L. R. A. n. s. 726; see West’s Kan. Dig., Constitutional Law, § 70 [3] and Hatcher’s Kan. Dig., Constitutional Law, § 31.) It is true that the legislative department of our government may not operate in the executive department to execute laws, but it is clear that the legislative department may cooperate, investigate, study, research, recommend and enact laws. The specific enactments, as limited by the scope of this action, challenged before this court fall in the realm of cooperation on the part of the legislature and do not attempt to usurp functions of the executive department of the government.

The statutory enactments under constitutional attack, when construed in accordance with the rules set out in Hunt v. Eddy, supra, and the cases following as herein cited, clearly indicate no violation of the separation of powers inherent in our state constitution, there being no usurpation by one department of the powers of the other on the specific facts and circumstances presented in this action.

Under such conditions it follows that no inhibition may be implied to prevent the legislature from appointing its members ex-officio to the state finance council by enactment. The legislature may engage in activities which may properly be regarded as incidental to and within the scope of its legislative duties. (State, ex rel., v. Kansas Turnpike Authority, supra).'

*698 Parker, C. J., and Price, J., join in the foregoing concurring opinion.