upholding an act creating the State Finance Council, holding "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 cooperation and not a blending of powers"
How later courts described this case
- upholding an act creating the State Finance Council, holding "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 cooperation and not a blending of powers"
- upholding an act creating die State Finance Council, holding “it cannot be overlooked as a practical matter that as between die legislative and the executive departments of our government die enactment contemplates comity and cooperation and not a blending of powers”
- "While courts will not refuse to pass on the constitutionality of statutes in any proceeding in which such determination is necessarily involved, unnecessary consideration of attacks on their validity will be avoided and courts will not assume to pass upon constitutional questions not duly raised and insisted upon since they are not properly before it."
- "the test is . . . the common understanding . . . of the people at the time they adopted the constitutional provision and the presumption is in favor of the natural and popular meaning in which the words are usually understood by the people who adopted them"
Written by the judges who cited it.
The opinion
Robb, J.
(concurring specially): I find myself unable to agree completely with either the court’s opinion or the dissenting opinion. My purpose in concurring specially in the majority opinion is that I believe some additional discussion may be helpful and I wish to emphasize statements of some of the authorities that I consider appropriate on the particular constitutional problem presented by this case.
I would be inclined to join in the dissent were it not for that long line of decisions of our court following the almost universal rule that an act of the legislature is presumed to be constitutional unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument. (State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 78 , 283 P. 2d 461 .) For additional Kansas cases on this subject see, also, State, ex rel., v. Board of Education, 137 Kan. 451, 453 , 21 P. 2d 295 ; Thompson v. Reno County Comm’rs, 152 Kan. 610 , 106 P. 2d 700 ; Miller v. Jackson, 166 Kan. 141, 143 , 199 P. 2d 513 , Mizer v. Kansas Bostwick Irrigation District, 172 Kan. 157, 175 , 239 P. 2d 370 ; 1 Hatcher’s Kansas Digest, rev. ed., Constitutional Law, §§ 15, 16, pp. 610, 611, and 1956 Cum. Supp. §§ 15, 16, pp. 56, 57; 3A West’s Kansas Digest, Constitutional Law, § 48, p. 23, et seq.) The foregoing are not by any means all of our cases on this subject.
In the majority opinion reference is made to State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683 , 273 P. 2d 198 , and to the fact that some of the members of the Authority are also members of the legislature and serve on the Authority with compensation. In this specially concurring opinion I am not considering any analogy between that case and our present one. However, I do not favor an unlimited creation of boards and commissions with the members of the legislature constituting the paid personnel thereof.
It is elementary that the government of Kansas is conferred upon three coordinate departments — the legislative, the executive, and the judicial. Each is supreme within its own sphere, subject only to our constitutional limitations. (Hicks v. Davis, 97 Kan. 312, 314 , 154 Pac. 1030 ; State, ex rel., v. Ancient Order of United Work *699 men, supra, p. 78 .) The question to be considered is not whether our constitution authorizes an act but whether it is prohibited thereby. Our constitution limits rather than confers powers. (State, ex rel, v. Anderson, 180 Kan. 120, 125 , 299 P. 2d 1078 .)
All political power is vested and inherent in the people under our federal constitution and under section 2 of the bill of rights of our state constitution (Marks v. Frantz, 179 Kan. 638, 650 , 298 P. 2d 316 ) and this fact should always be remembered by those placed in the three branches of our government by the people. The legislature enacts, amends and repeals laws; the executive administers those laws; and the judiciary interprets and enforces them. On some occasions the judiciary has used its power of judicial review to reverse a former interpretation and, as an ultimate proposition, the people have from time to time seen fit to amend the constitution. These are all a part of our orderly processes of government.
As the legislature cannot ordinarily diminish, enlarge, or interfere with the jurisdiction of a court (Wyandotte County Comm’rs v. General Securities Corp., 157 Kan. 64, 75 , 138 P. 2d 479 ) it likewise cannot so affect the jurisdiction of the executive. It must be generally recognized that such an effort would be a contravention of its powers which are limited by the constitution.
The fact that an unconstitutional statute enacted by legislative authority remains in our statutes indefinitely without challenge does not impart legality to a subsequently-enacted statute with the same, or similar, infirmity, nor does this relieve a court of its duty to determine the constitutionality of the subsequent enactment if and when such question is properly presented for determination, as was substantially stated in the Wyandotte County Commrs case at page 79. We are not governed in this case by the fact that other boards and commissions have been established by previous legislative enactment whereby provision was also made for members of the legislature to serve thereon and the constitutionality of such previous legislative enactments has not been properly contested and determined.
Our state constitution was modeled after that of Ohio and the case of Zanesville v. Telegraph and Telephone Co., 64 Ohio St., 67 , 59 N. E. 781 , 52 L. R. A. 150, is cited in the dissent as pertinent on the point of separation of powers. There the legislature delegated power to the probate court to make final determination *700 of problems respecting the installation of poles, etc., of the defendant telephone company in the. city of Zanesville when the cpmpany and the city council were unable to agree. The court held the function there involved was one of. a judicial character rather than legislative and thereby determined the act to be constitutional. In that opinion the Ohio Supreme Court said:
“The legislature, by conferring any particular power upon a' court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms of judicial proceedings. . . ,”
(p. 84)
and later stated,
“The administration of that remedy . . . consists of an order made by the court in the usual manner of legal proceedings, after a hearing of the allegations and evidence of parties who are brought before the court by proper process. .' . ,” (p. 89)
and finally, as a result of consideration of the propriety or constitutionality of the enactment, the court concluded,
“The argument [that it was not constitutional] to the contrary . . . at most has served to cast a doubt upon the validity of the provision, but that is not enough to justify the court in holding it unconstitutional. . . .”
(p. 91.)
To avoid unduly lengthening this opinion, I will not go into other facets of this Ohio case but it is a well-reasoned and well-developed opinion. It was cited in a dissenting opinion in Cleveland v. Pub. Util. Comm., 102 Ohio St., 341 , 358, 359, 131 N. E. 714 , in support of the rule on distribution of powers as previously stated herein, and it was again cited in Local Tel. Co. v. Mutl. Tel. Co., 102 Ohio St., 524 , 552, 133 N. E. 527 .
A later Ohio per curiam opinion (In re Bostwick, 125 Ohio St., 182 , 180 N. E. 713 ) involved the removal of a judge who contended that the removal of a public officer presented a political question and not a judicial one, which contention was not upheld by the court. The court there quoted from the City of Zanesville case, supra, Syl. jj 2, as follows:
“The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in' that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive department, (p. 183.)
In a later Ohio case (Bogen v. Clemmer, 125 Ohio St., 186 , 180 *701 N. E. 710 ), which I believe displays a more modem trend of thinking and may give some light to our discussion, we find the following language:
“Where a power is quasi legislative, or quasi administrative, or quasi judicial, or a combination of all of them, the Legislature may, where such twilight zone of distinction applies, characterize the power and confer it upon any agency it selects or creates for the purpose. [Citations.]
“It might be said, in passing, that it always has been and always will be the policy of our government, national and state, to keep distinct and separate our legislative, judicial and executive departments of government, so that each may operate as a check and balance upon the other; but government would prove abortive if it were attempted to follow such policy to the letter. State agencies and public officials, regardless of classification, could not function if this rule were strictly followed, particularly in the exercise of the police power of the state.” (p. 189.)
Thus I conclude, as did the Ohio court, that we cannot waive our constitutional provisions on the theory that even the constitution must bend to the public good.
I think it is evident that the governors power is not limited. He may call the legislature together in a special session or he may, as chairman, call the members of the finance council to meet. (G. S. Supp. 75-3708; 75-3710.)