Moore v. Shanahan

486 P.2d 506, 207 Kan. 645, 1971 Kan. LEXIS 454

Opinions

The opinion of the court was delivered by

Fatzer, J.:

This appeal was heard at the March 1971 Session, and on March 11, due to the pressing public questions presented, the court announced its decision affirming in part and reversing in part the judgement of the district court. (Moore v. Shanahan, 207 Kan. 1, 486 P. 2d 506.)

At the 1970 Session of the Legislature, three propositions for the amendment of the Kansas Constitution were adopted by two-thirds of the members of the House of Representatives and the Senate, to be submitted to the qualified electors of the state for their approval or rejection at the general election on November 3,1970.

On October 19, 1970, the plaintiff, Earl C. Moore, a member of the Bar of Kansas, a taxpayer and qualified elector, and residing in Wichita, commenced this action against Elwill M. Shanahan, Secretary of State for the state of Kansas, to enjoin her from submitting each of the said proposed amendments to the electors of the state. The petition alleged the plaintiff filed the action on his behalf and on behalf of all the electors of the state of Kansas similarly situated, upon the ground the three proposed amendments were ineffective as amendments to the Constitution of Kansas, and would be inoperative if approved by the people; that, as a taxpayer and elector, he was entitled to relief against the unconstitutional submission of said amendments, and the improper expenditure of public funds. The plaintiff specifically alleged that each proposed amendment was in violation of that part of Section 1, Article 14, which reads:

“When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.”

Proposition 1 was proposed by Senate Concurrent Resolution No. 8 (L. 1970, Ch. 189), to amend Section 10, Article 15, by removing the provision forever prohibiting the “open saloon” in Kansas. In view of what is stated hereafter, no further reference to this amendment need be made.

Proposition 2 was proposed by Senate Concurrent Resolution No. 1033 (L. 1970, Ch. 411), to amend Sections 1 and 2, Article 14, relating to constitutional amendment and revision.

Proposition 3 was proposed by House Concurrent Resolution No. 1026 (L. 1970, Ch. 347), to amend Article 1, relating to the executive branch of the state government, and to repeal Article 8, relating to the militia of the state.

The secretary of state having caused the proposed amendments to be published as required by Section 1, Article 14, and also having prepared and distributed to the various county clerks and election commissioners, the form of the ballot for the submission of said proposed amendments to the electors for their approval or rejection, the district court, in accordance with the principle of general application that courts will not enjoin the holding of an election, refrained from issuing a temporary injunction, or the restraining order prayed for. (Dunn v. Morton County Comm'rs, 162 Kan. 449, 177 P. 2d 207, Syl. ¶ 3.)

At the general election on November 3, 1970, a majority of the qualified electors voting on proposition 1 rejected it, and a majority of those electors voting on propositions 2 and 3 adopted each proposed amendment, although in so doing, they cast some 120,000 less votes on propositions 2 and 3 than they cast on proposition 1.

On November 6, 1970, the attorney general of Kansas, acting for and on behalf of the secretary of state, filed an answer to the plaintiff’s petition. The answer alleged the defendant had no knowledge of plaintiff’s residence in Wichita, but “admits that plaintiff is qualified to bring this action.” The answer made allegations of the electors’ rejection of proposition 1, and that the plaintiff’s claim concerning the same was moot. It denied the plaintiff was entitled to any relief requested, and alleged the remaining two proposed amendments, 2 and 3, were constitutional. The prayer was that judgment be entered in favor of the defendant on propositions 2 and 3, and that they be declared to be constitutionally submitted and adopted.

Thereafter, and on November 9, 1970, the plaintiff filed an amended petition in which he incorporated many of the allegations of his original petition, including his right to bring the action, and alleged that proposition 2 contained at least six separate amendments, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the six proposed amendments completely revising Article 14, constituted more than one amendment, and denied the plaintiff and other electors similarly situated the right to vote “yes” or “no” on each amendment separately, and also violated the constitutional prohibition that not more than three propositions to amend shall be submitted at the same election.

The amended petition further alleged that proposed amendment 3 contained at least twelve separate amendments to Article 1, and repealing Article 8, specifically alleging each separate amendment, upon which an elector had the right to vote on each amendment separately; that the twelve proposed amendments completely revising Article 1, and repealing Article 8, constituted more than one amendment, and denied the plaintiff and all other electors similarly situated, the right to vote “yes,” or “no,” on each amendment separately, and also violated the constitutional prohibition that not more than three amendments be submitted together.

The amended petition contained allegations concerning the State Board of Canvassers and its duty to canvass the election abstracts, and that the defendant and the members of such Board should be restrained from certifying the abstracts of election on amendments 2 and 3 until the court had opportunity to pass upon their constitutionality. Further reference to those allegations and the restraining order issued thereon, is deemed unnecessary.

On December 3, 1970, the district court heard the case on its merits, and on January 27, 1971, it entered judgment dismissing the plaintiff’s action, “because (1) he has no legal standing to bring the action, and (2) plaintiff is not entitled to the relief he seeks since propositions 2 and 3 submitted to the electors on November 3, 1970, are constitutional.”

The plaintiff timely perfected this appeal, and this court advanced the case for hearing to the March 1971 Session. The case was heard on its merits March 5, and on March 11, this court made public announcement of its decision. (Moore v. Shanahan, supra.)

At the outset, we are met with the plaintiff’s contention the district court erred in holding he had no legal standing or capacity to bring the action. The point is well taken. The verified petition alleged the plaintiff was a qualified elector of Wichita and brought the action on his behalf and all other electors of the state of Kansas similarly situated. The defendant’s answer made no denial of that allegation, and specifically admitted the plaintiff was qualified to bring the suit. The question was neither raised nor briefed by the parties in the district court, but the court, on its own initiative, injected the issue into the case. Courts have jurisdiction to decide only such issues as are raised by the pleading or defined in the pretrial order, or new issues raised by evidence to which no objection is made. (Shriver v. Board of County Commissioners, 189 Kan. 548, 552, 370 P. 2d 124, and cases cited; McAdam v. Fireman's Fund Insurance Co., 203 Kan. 123, 452 P. 2d 851.)

Under K. S. A. 60-209 (a), an objection to the legal capacity of the plaintiff to sue may be taken by answer, and the defendant is required to do so by a specific negative avermant, or it will be waived. (Augusta Oil Co., inc. v. Watson, 204 Kan. 495, 464 P. 2d 227.) See, also, 1 Vernon’s Kansas Statutes Annotated [Fowks, Harvey, Thomas], Code of Civil Procedure, § 60-209 (a), p. 31. Moreover, the rule that this court must, on its own motion, dismiss the appeal if it appears the district court was without jurisdiction, is not applicable to the situation here presented. In the case at bar, the district court confessedly had jurisdiction of the subject matter of injunction and of the parties. The petition presented the question to be determined as an issue, and contained sufficient facts to challenge the court’s attention as to its merits. The district court’s conclusion did not go to its jurisdiction, but to the legal standing or capacity of the plaintiff to seek relief.

The right to vote in any election is a personal and individual right, to be exercised in a free and unimpaired manner, in accordance with our Constitution and laws. The right is pervasive of other basic civil and political rights, and is the bed-rock of our free political system. Likewise, it is the right of every elector to vote on amendments to our Constitution in accordance with its provisions. This right is a right, not of force, but of sovereignty. It is every elector’s portion of sovereign power to vote on questions submitted. Since the right of suffrage is a fundamental matter, any alleged restriction or infringement of that right strikes at the heart of orderly constitutional government, and must be carefully and meticulously scrutinized. In Harris v. Shanahan, 192 Kan. 183, 387 P. 2d 771, it was held:

“Under the republican form of government prescribed in the Constitution of Kansas, every citizen and qualified elector is entitled to a vote . . (Syl. ¶ 11.)

and in the.opinion it was said:

“. . . Every citizen and qualified elector in Kansas has an undoubted right to [vote] . . . and has a further right to invoke the power of the courts to protect such constitutional right . . .” (l. c. 207.)

The holding was cited and approved in Harris v. Shanahan, 192 Kan. 629, 390 P. 2d 772, and in Harris v. Anderson, 194 Kan. 302, 400 P. 2d 25, cert. den. 382 U. S. 894, 15 L. Ed. 2d 150, 86 S. Ct. 185. See, also, Coleman v. Miller, 146 Kan. 390, 71 P. 2d 518, affirmed 307 U. S. 433, 83 L. Ed. 1385, 59 S. Ct. 972, where it was held that individual members of the Senate had the right to maintain an action in this court to enforce an alleged impairment of their constitutional rights, where the lieutenant governor cast the deciding vote when the Senate was equally divided, on a concurrent resolution to ratify the so-called child labor amendment to the Constitution of the United States.

We have examined the cases cited by counsel, and have also .examined many others, and find that no court has denied the right of an individual elector to bring an action on his behalf of all other electors of the state similarly situated, attacking a proposed amendment to a state Constitution upon the ground it was submitted in violation of the amendment Article. Under the record presented, we hold the plaintiff had legal standing and capacity to maintain this action, and any matter affecting the validity of the submission of the proposed constitutional amendments to the electors may be investigated and determined.

With respect to the conclusion just announced, we again note this action was commenced prior to the holding of the general elections on November 3, 1970, and that this court announced its decision on the merits of the appeal on March 11, 1971, before any rights had accrued to any citizen, or elections held pursuant to proposition 2, or before reorganization orders were issued by the governor or elections held pursuant to proposition 3, and before any state officer or department of this state had in any way recognized the validity of the amendments under consideration. See Prohibitory Amendment Cases, 24 Kan. * 711, 718, 719, 720.

It should here be noted that, notwithstanding the court’s approval of proposition 2 amending Sections 1 and 2 of Article 14, as hereafter noted, this case is required to be decided in accordance with the provisions of Article 14 as they existed when the 1970 Legislature submitted propositions 2 and 3 to the electors for their approval or rejection on November 3, 1970. With this admonition, we turn to the legal questions that the House Concurrent Resolutions submitting those propositions violated Section 1 of Article 14, and refer to the rule that whether the constitutional method has been pursued, is purely a judicial question, and no authority is vested in any officer, department of state, or tribunal, other than the courts, to consider and determine that matter. In Harris v. Shanahan, 192 Kan. 183, 387 P. 2d 771, it was said:

“. . . when legislative action exceeds the boundaries of authority limited by our Constitution, and transgresses a sacred right guaranteed or reserved to a citizen, final decision as to invalidity of such action must rest exclusively with the courts. In the final analysis, this court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. (Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P. 2d 731.) However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it ... It is axiomatic that an . . . act of the legislature, is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare . . .” (l. c 207.)

We also refer to the rule that the constitutionality of a statute or concurrent resolution is presumed, and that all doubts must be resolved in favor of their validity, and before they may be stricken down, it must appear the infringement of the Constitution is clear beyond substantial doubt. It is the court’s duty to uphold the concurrent resolutions, rather than defeat them, and if there is any reasonable way to construe them as constitutionally valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 659, 308 P. 2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P. 2d 266.)

The Kansas Constitution was adopted in 1859, and is the supreme and paramount law, receiving its force from the express will of the people. It established three separate departments of government and placed upon each of them limitations which experience has shown to be essential to a progressive government. It has worked well in practice, and is a monument of the wisdom and patriotism of its framers. But no product of the human mind is perfect, so the framers prescribed the manner by which the Constitution could be amended or revised, which is clearly defined. Those wise men saw that, in a state where the people were admitted to a direct participation in the government, party passions and interests might likely lead to too much tampering with the Constitution, if effectual checks were not imposed, and, what may be thought otherwise, restriction with respect to amendment and revision was the policy of the constitutions of the states that were selected as models from which to fashion the new Kansas Constitution. (Proceedings and Debates, Wyandotte Constitutional Convention, 1859.)

In any event, it was settled that the only manner in which the Constitutition could be amended or revised, was in accordance with Article 14 which prescribed two methods by which changes may be effected. One, called the legislative method, by which the people adopt propositions for specific amendments that have previously been submitted by two-thirds of the members of each house of the Legislature (Sec. 1), and the other, called the convention method, by which delegates are chosen by the people for the express purpose to “revise, amend or change” one or more articles, or the entire instrument itself (Sec. 2) — followed by a ratification by the people. See, Staples v. Gilmer, 183 Va. 613, 33 S. E. 2d 49, 158 A. L. R. 495. The idea of the Kansas people thus restricting themselves was a part of the American system of written constitutions, and was convincing evidence that amongst them liberty and freedom meant, not the giving of rein to passion or to thoughtless impulse, but the considered exercise of power by the people for the general good, and, therefore, always under the restraint of law. Hence, the framers of our Constitution avoided the dangers attending a too frequent change in our fundametntal law, and likewise obviated the danger —to be equally shunned — of making amendments too difficult. No government can expect to be permanent unless it guarantees progress as well as order; nor can it continue to secure order unless it promotes progress. Thus, the Kansas Constitution reconciled the requisites for progress with the requisites for safety and order. (Prohibitory Amendment Cases, supra, p. 507; Jameson, Constitutional Conventions, § 528, p. 549.)

Under the legislative method, the power of the Legislature to initiate any change in the Constitution is of greatly less extent than that of calling a constitutional convention, and, being a delegated power, is to be strictly construed under the limitations by which it is conferred. In submitting propositions for specific amendments to the Constitution, the Legislature does not act in the exercise of its ordinary legislative power (Sec. 1, Art. 2), but it possesses and acts in the character and capacity of a convention pursuant to the power delegated to it in Section 1, Article 14, and is quoad hoc, a convention expressing the supreme will of the people; it is limited in its power of proposing amendments to the Constitution by the provisions of that section and article, except with respect to such powers as may be, or have been previously delegated by the people to the Constitution of the United States. On this point, in State, ex rel., v. Sessions 87 Kan. 497, 124 Pac. 403, this court quoted from Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710, 75 Pac. 222, as follows:

" ‘. . . A legislature, in proposing and agreeing to amendments and submitting them to the people, is acting under a limited authority, and its powers must be strictly construed. It may propose and submit amendments in the manner provided by the constitution, and in no other way. In doing so, it does not exercise ordinary legislative powers, but rather acts as the agent of the people in the discharge of a ministerial duty, deriving its authority alone from the provisions of the constitution regulating its own amendment . . . It is but right and proper . . . that the procedure provided for so important a matter as its own amendment shall be regarded as madatory, and a limitation upon the exercise of the power . . (l. c. 502, 503.)

In Prohibitory Amendment Cases, supra, Mr. Justice Brewer, speaking for this court on the part the Legislature plays when the constitutional requirements have not been obeyed, said:

. . It lacks the sanction of law, is a disregard of constitutional methods and limitations, and should he taken as a request for a change, rather than as a change itself. But, notwithstanding this, legislative action is simply a determination to submit the question to popular decision. It is in no sense final. No number of legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people, who alone can change it. The action of the legislature in respect to constitutional changes is something like the action of a committee of the legislature in respect to the legislative disposition of a bill. It presents, it recommends, but it does not decide . . .” (* 711, 712.)

It was evidently thought by the framers of the Constitution that the legislative method would be well adapted to changes which are few, simple, independent, and of comparatively small importance. It seems very clear from the provisions of Section 1 authorizing amendments pursuant to the legislative method, as compared with Section 2 authorizing a call of a convention, that the purpose of the former is different from the latter — in other words, the thing authorized to be done by the first section is a different thing entirely from that authorized to be done by the second section. Thus, the purpose of the legislative method is to bring about amendments which are few, simple, and independent; and on the other hand, the convention method is to revise the entire Constitution, with a view to propose either a new one, or, as the greater includes the less, to amend or change one or more articles. The phraseology used in Section 1 is to propose “amendments” to the Constitution, whereas the phraseology used in Section 2 is to call a convention “whenever . . . the members elected to . . . the legislature shall think it necessary ... to revise, amend, or change” the Constitution. (Emphasis supplied.) In not a single instance is the word “revise” or any of its derivatives employed with respect to the legislative method — only the word “amendment” is used. It appears evident, therefore, that the legislative method is in sharp contrast with the convention method, which is employed for “revision.” To say that the purpose of the two methods is the same, is to say that a part is equal to, or the same as, the whole.

Historical facts of amending the Constitution, and the experience and tradition of the Legislature in submitting amendments to the electors for their approval or rejection, show that nearly 1000 resolutions seeking constitutional changes have been introduced in the Legislature since our admission to the Union. (Your Government, Bulletin of the Governmental Research Center, University of Kansas, Cape, Volume XXIV, No. 2, October 15, 1968.) From 1861 to and including 1970, the Legislature has submitted 85 propositions to amend the Constitution. Of the 85 submitted, 55 were adopted by the people, and 30 rejected. In almost every instance, each proposition or amendment has been directed to a single, independent, and specific change in one or more sections of an article. A study of each amendment confirms this fact. Several new sections have been added, but all related to a single subject. Being specific and independent and relating directly to the subject sought to be changed, those amendments produced no controversy. This is the principal reason why this court has not previously been called upon to decide the question here presented.

It was not until 1959 that it was ever suggested that an entire article of the Constitution might be submitted as one amendment. This suggestion came about in a report of a commission on constitutional revision. In 1957 the governor appointed a “Governors Commission on Constitutional Revision,” which was later joined by the Legislative Council’s Special Committee. In a progress report dated January 30, 1959, the Commission stated, “. . . that, to date, the Commission has not committed itself to a constitutional convention,” and concluded that, “. . . an entire article (of the Constitution) can be replaced with another under the present amending process by means of a single amendment . . .” (Your Government, op. cit., supra.) No reference was made to any source for the statement, and the Commission cited no law or constitutional authority to support it. The Commission made its final report to tire governor in January, 1961. In the same month, the governor appointed a Second Commission on Revision of the Kansas Constitution, and its report was published January, 1963. (Your Government, op. cit., supra, No. 9, May 15, 1969.) In January, 1968, the governor, in his annual message to the Legislature, stated there was a need to revise and modernize the Constitution, and that “. . . this legislature should take necessary steps to call a constitutional convention.” (Your Government, op. cit., supra, No. 2, October 15, 1968.) Instead, the Legislature established the Citizens’ Committee on Constitutional Revision (Ch. 265, L. 1968), which made a comprehensive report to the governor and Legislature in February, 1969. The report recommended extensive changes in all of the existing fifteen articles of the Constitution, or their repeal, except Article 11 which was unchanged. Propositions 2 and 3, hereafter referred to, were included in the report.

How may the Constitution be legally amended under the legislative method? An examination of Section 1, Article 14, discloses that it does not provide specifically for the manner in which amendments to the Constitution may be proposed, except that the same shall be printed in full on the ballot (State , ex rel., v. Shanahan, 183 Kan. 464, 327 P. 2d 1042), and,

“. . . [w]hen more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.”

This portion of Section 1 has not previously been interpreted by this court, except in State, ex rel., v. Sessions, supra, the last clause of the section was considered, and it was said:

“. . . The constitution provides that ‘not more than three propositions to amend shall be submitted at the same election.’ (Art. 14, § 1.) This restriction is unquestionably imperative. Its reasons are obvious. The framers of the constitution evidently believed that the submission of a larger number of amendments would unduly tend to confusion, and to embarrass an accurate indication of public opinion upon each. Under no circumstances may more than three proposals for constitutional amendments be submitted together . . .” (l. c. 500.)

The present meaning of Section 1, Article 14, is the meaning it bore in 1859 (Prohibitory Amendment Cases, supra), and is to be construed in the light of the exigencies and conditions which it was intended to meet and deal with. The word “amendment” implies a specific change or alteration of subject matter within the original lines of the Constitution as will effect an improvement, or better carry out the purpose for which it was framed. (Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L. R. A. 312; Kelly v. Laing, 259 Mich. 212, 219, 242 N. W. 891.)

The foregoing quoted provision of Section 1 is mandatory, and requires a submission of proposed amendments in such manner that the electors may vote upon each amendment separately. The provision is a wise one, and is intended to prevent several separate and unrelated subjects from being submitted to the electors in the same amendment, thus forcing them to approve or reject the amendment as a whole. Likewise, it is intended to prevent burdening a meritorious proposition with a vicious one, and also to prevent a vicious proposition from having the support of the meritorious one, thus giving to the elector the right to have each separate proposition submitted to him in order that he may express his will for or against each separately, without being compelled to accept a proposition to which he is opposed, in order to have adopted a proposition which meets his favor. (McBee v. Brady, 15 Idaho 761, 100 Pac. 97.)

Just what is meant by “more than one amendment” which shall be so submitted to enable electors to vote on “each amendment separately,” as used in Section 1, is not an easy matter to determine. It was evidently the intention of this provision to require that amendments which are incongruous, or which do not relate to the same subject matter or have the same object and purpose, should be considered as separate amendments. The question of duplicity of an amendment was decided by the Wisconsin Supreme Court in the early case of The State ex rel. Hudd vs. Timme, Secretary of State, 54 Wis. 318, 11 N. W. 785, which has been followed by a vast majority of the courts of the country as stating a sound rule. The Wisconsin court held that a proposal to amend separate sections of the legislative article, involving the subject of a change of legislative sessions from annual to biennial sessions, was properly submitted as a single amendment, even though there were provisions therein for increasing compensation, and for necessary changes of tenure and of the time and method of election of the senators and representatives for such biennial sessions. In the opinion it was said:

“We think amendments to the constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view. In order to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. Tested by this rule, the propositions submitted to the electors contained but one amendment . . .” (l. c. 336.) (Emphasis supplied.)

See, also, Livermore v. Waite, supra, and McFadden v. Jordan, 32 Cal. 2d 330, 196 P. 2d 787.

In Kerby v. Luhrs, 44 Ariz. 208, 36 P. 2d 549, 94 A. L. R. 1502, the supreme court of Arizona cited many authorities, and approved and clarified the test laid down in Timme, supra. There, one amendment was submitted which related to the subject of taxation, and provided the method in which copper mines should be taxed; it also provided the manner in which public utility corporations should be assessed and taxed, and further provided that the State Tax Commission which was previously created by legislative enactment, was created and declared to be a constitutional commission. In the opinion it was said:

“If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition. Nor does the rule as stated unduly hamper the adoption of legitimate amendments to the Constitution. Such a document was presumably adopted deliberately, after careful preparation, as a harmonious and complete system of government. Changes suggested thereto should represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire.” (l. c. 221.)

It was further said:

“. . . It is evident that there are at least three distinct propositions contained therein, no two of which are necessarily required for a proper operation of the third. On their face they have no direct relation to each other. Their only connection is that they are all embraced in a broader general subject, to wit, that of taxation. It is clear that the provision in regard, to the method in which copper mines should be taxed is in no way necessary to or concerned with the method of taxation of public utility corporations, and it is equally clear that both of those propositions could be inserted in the Constitution without the slightest need of adopting the one establishing the tax commission as a constitutional body which in effect would be independent of the regular executive and legislative branches of the state government in many particulars, and perhaps even of the judicial.” (l. c. 221, 222.)

See, also, 94 A. L. R. 1510 Anno: Proposed Constitutional Amendment.

This court adopts the test of duplicity in a constitutional amendment as set forth in Timme and as adopted and clarified in Kerby. The pertinent rules having been stated, were there in reality two or more amendments submitted to the electors in each proposition? We shall discuss the propositions in their reverse order, and first turn to proposition 3.

As indicated, proposition 3 was submitted to the Legislature by the Citizens’ Committee on Constitutional Revision in its comprehensive report to the Legislature and the governor shortly after the 1969 session convened. (Report of the Citizens’ Committee on Constitutional Revision, 1969, pp. 2-10.) The Committee was composed of twelve citizens of the state who were appointed as provided in the Act. It was directed “to thoroughly examine and evaluate the constitution of the state of Kansas and to determine the provisions thereof which need revision,” and was further directed to meet as often as necessary prior to the 1969 session, to fulfill its duties, and “report its findings and recommendations to the governor and said session of the legislature.”

Except for a few minor changes, the Legislature submitted proposition 3 as proposed by the Citizens’ Committee on Constitutional Revision. The title to House Concurrent Resolution No. 1026, submitting the proposition reads:

“A Proposition to amend article 1 of the constitution of the state of Kansas, relating to the executive branch of state government, and repealing article 8 of the constitution of the state of Kansas.”

In passing, it is noted the title of the resolution dealt with two articles of the Constitution — Article 1, relating to the executive department and Article 8, relating to the militia of the state. On its face the title indicates that two unrelated subjects are dealt with.

It is unnecessary to set forth proposition 3 in its entirety. It is sufficient to say the amendment contained eleven sections and repealed all but one of the existing sixteen sections of Article 1. Parts of those sections were transferred to new sections and new material was added to some of the eleven sections contained in the amendment, which were not renumbered. Likewise, the existing four sections of the militia article were repealed, and some parts of those sections were transferred to a new section of proposed Article 1. The following is a summation of the amendment’s eleven sections.

Section 1 provided the tenure for the offices of the executive department, and limited its composition to the governor, lieutenant governor, secretary of state, and attorney general. The section eliminated the offices of auditor and treasurer from that department, which were provided for in existing Section 1, Article 1. (The office of superintendent of public instruction had been eliminated by the amendment of Article 6 — education—in 1966.) The tenure of office of governor, lieutenant governor, secretary of state, and attorney general was extended from two years to four years, and commencing in the year 1974, and every four years thereafter, elections for those offices are to be held in off-presidential years. Commencing in the year 1974, and thereafter, the candidates for governor and lieutenant governor will be nominated and elected jointly as a “team,” so to speak, so that a single vote would be cast for a candidate for governor and for lieutenant governor running together. It was further provided that after 1974, no person may be elected to more than two successive terms as governor and lieutenant governor.

Section 2, providing for a Board of Election Canvassers, was repealed.

Sections 3, 4 and 5, as proposed by the Committee and submitted by the Legislature, incorporated and transferred with minor changes existing provisions of the Constitution which vested in the governor, as executive power, the responsibility to see that the laws are faithfully executed (Section 3), and the power to require in writing reports from officers of the executive department and of all public state institutions, which shall be transmitted by the governor to the Legislature. The latter clause was transferred from Section 16, which was repealed. The sections further empowered the governor to convene the Legislature in special session by proclamation, and a new clause was added authorizing the Legislature to convene into special session upon petition signed by at least two-thirds of the members elected to each house. The power to adjourn the Legislature in case of disagreement between the two houses as to time of adjournment, was transferred from Section 6.

Section 6, consisting of four subsections of new material, as proposed by the Committee, and submitted by the Legislature, authorized the governor to submit one or more executive reorganization orders to both houses of the Legislature within the first 30 calendar days of any regular session, to transfer, abolish or consolidate the whole or any part of any state agency within the executive branch, except constitutionally established departments. Executive reorganization orders as are so transmitted shall take effect, and have the force and effect of general law on July 1, following transmittal, unless within 60 days and before adjournment, either house of the Legislature adopts a resolution disapproving such orders. Any one of such reorganization orders which becomes effective, may be amended or repealed as statutes are amended or repealed.

Section 7 as proposed by the Committee, and submitted by the Legislature, was the only section not changed. It vests the pardoning power in the governor under regulations and restrictions prescribed by law.

Section 8 as proposed by the Committee, and submitted by the Legislature, repealed existing Section 8 and transferred its provisions to Section 9. Sections 1, 2, 3 and 4 of Article 8, relating to the militia, were repealed, and parts of those sections were transferred to this section as new material. The section continued the power of the governor as Commander in Chief of the militia; to call out the militia to execute the law, to suppress insurrection or rebellion, and to repel invasion or to service in natural or other emergencies. A new clause was added authorizing the governor to proclaim martial law when public safety required it, but not for a period exceeding 20 days, except with the consent of the Legislature. The section removed the right of all citizens of any religious denomination whatever, who from scruples of conscience may be adverse to bearing arms, to be exempt from militia service.

Section 9 as proposed by the Committee, and submitted by the Legislature, incorporated the provisions of old Section 8, and continued in effect its former provisions with respect to the issuance of all commissions.

Section 10 prohibiting federal officers from being governor, was repealed.

Section 11 as proposed by the Committee, and submitted by the Legislature, contained a similar subject to that contained in existing Sections 11, 13 and 14. Section 11 provided that the lieutenant governor shall succeed the governor, but provided that succession of the lieutenant governor shall be as prescribed by law, rather than constitutional succession as prescribed in existing Section 13 which was repealed. Section 14 was likewise repealed, and its provisions concerning the appointment by the governor of members of the state executive department who become incapable of performing their duties, were transferred to Section 11.

Section 12 as proposed by the Committee, and submitted by the Legislature, repealed the provisions of existing Section 12 which provided that the lieutenant governor shall be president of the Senate and empowered to vote when the Senate is equally divided, and that the Senate shall choose a president pro tern to preside over that body in the lieutenant governor’s absence, or when he succeeds to the office of governor. Section 12 as proposed provided that the lieutenant governor shall assist the governor and exercise the powers and duties prescribed by law.

Section 15, relating to compensation of members of the executive department was amended in certain respects.

The court has no difficulty in ascertaining there are at least three specific changes of subject matter contained in proposition 3, neither of which is related to, dependent upon, or required for the operation of the other. There may be other changes of subject matter contained in the proposition, but the three hereafter detailed determine its violation of Section 1, Article 14, that when more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately. In view of this conclusion, it is unnecessary to further explore the proposition and discuss other possible changes of subject matter.

Section 1 deals with tenure of office; composition of the executive department; provides that the governor and lieutenant governor shall run as a team, and prohibits those officers from holding office for more than two consecutive terms. With respect to that section, the court is of the opinion there are at least two distinct changes of subject matter proposed. The only connection between the two is that both are embraced in a broader general subject — the executive department— which was established by Article 1 in a single section. Commencing in 1974, the term of office of members of the executive department is extended from two years to four years. The extension of term of office relates to one subject, namely, tenure of office. That constitutes one specific change within the original lines of the Constitution. (Keenan v. Price, 68 Idaho 423, 195 P. 2d 662.) Moreover, the object and purpose of prohibiting any person to be elected to more than two successive terms as governor and lieutenant governor, likewise relates to tenure of those offices, since it is an express limitation on the right to exercise the constitutional and statutory powers conferred for not more than two successive terms.

The question was decided by the Idaho Supreme Court in Keenan, supra. A proposed constitutional amendment extended the term of office of members of the executive department of that state from two years to four years, and placed a limitation upon the governor succeeding himself. It was held the amendment embraced but one subject, and did not contain unrelated matters which must be submitted to the electors separately. In the opinion it was said:

The amendment . . . is on the same plan with modifications of certain parts of the original set-up. The main or controlling change or question is the four year term for executive state officials. The proviso that the governor shall not succeed himself, except for being eligible to hold the office after a lapse of one full term, is directly, properly and reasonably related to the matter of terms and tenure of such officials, and is incidental and subordinate to the main or controlling question . . .” (l. c. 453, 454.)

It was held that since only one section of the executive article was amended containing matters relating to one subject only, there was no violation of the Constitution in the submission of the amendment. The court distinguished its holding from McBee v. Brady, 15 Idaho 761, 100 Pac. 97, upon the ground the proposed amendment in McBee sought to amend four different sections of one article, one section of another article, and repeal two sections of a third article.

The amendment involved in Keenan, supra, made no change in the composition of officers of the executive department, but that is not the case here. Section 1 eliminates the treasurer and auditor as officers of the executive department. We are of the opinion the composition of the executive department, although not directly contradicting, is a subject wholly unrelated to, and in no manner dependent upon, or connected with, the subject of tenure, and has a different object and purpose. Tenure of executive officers is in no manner related to what officers shall comprise the executive department. Thus, there is no relation between the elimination of the treasurer and auditor from the executive department, and a four-year term for governor. Each of those matters constitutes a separate subject and can stand alone without dependence on the other. When the test of duplicity of amendments is applied to Section 1, it may not be said that the change of one subject is so closely related or dependent upon the other that if one would fall, the other would necessarily fall also. On the contrary, one could be adopted without the other, leaving the constitutional scheme symmetrical, harmonious and independent. To deny an elector his right to vote on each of the changes of subject matter separately is a denial of his constitutional right to vote on each amendment separately. Had an elector been given an opportunity, he might have expressed his will in favor of extending the term of executive officers to four years and prohibiting the governor from succeeding himself. On the other hand, he might have opposed the extension of tenure and approved the elimination of the auditor and treasurer as executive officers. In like manner, he might have approved one of those two subjects and disapproved all other changes in proposition 3, or vice versa. No matter how desirable one change might be, an elector was forced to vote for that which he may not favor in order to get the one change he might think right, or else deny the whole lump.

In addition to the foregoing, the court is of the opinion that the repeal of Article 8, relating to the militia, and transferring some of its powers to Section 8, Article 1 — the executive department — involved at least one change of subject matter which was required to be submitted to the electors as a separate amendment. When the Constitution was adopted, the people considered those two obligations of government to be coordinate departments, but purposely made provision for their separate establishment. The manner in which the people shall exercise their right of bearing arms for the defense and security of the state was placed in Article 8 which authorized the organizing, equipping and discipline of the militia, to be composed of “all able-bodied male citizens between the ages of twenty-one and forty-five years.” The purpose of Article 8 has been stated by this court in Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619. The militia is essentially the people’s army and persons who from scruples of conscience may be adverse to bearing arms, were exempt from the militia. The clause relating to conscientious objection was omitted when those powers were transferred to Section 8, Article 1. Moreover, that section contains new material which limits the governor in proclaiming martial law for longer than twenty days without the approval of majority of the members of the Legislature in joint session.

It is clear to us that the changes proposed by transferring the powers relating to the militia to Section 8, Article 1, and repealing Article 8, is a subject separate and distinct, and wholly unrelated to, or dependent upon, the question whether the officers of the executive department shall have a four-year term, or whether the governor has the power to issue executive reorganization orders to abolish, alter or transfer any state department. There is no similarity of subject matter, and one change is not dependent upon the other. Each subject may stand alone, and the electors might be justly for one and against the other.

Looking at proposition 3 as reasonable men, we are of the opinion the proposed amendment is a most glaring violation of the constitutional provision involved, in that it submits at least three separate propositions upon which the electors might, and many doubtless would, have widely differing opinions, and in such a manner that they are compelled either to reject all three on account of one which may be considered vicious, or else accept two propositions they disapprove, to secure the adoption of one which meets their favor. (Kerby v. Luhrs, supra; Lee v. State, 13 Utah 2d 15, 367 P. 2d 861.) The proposed amendment violates both the spirit and the letter of Section 1, Article 14, of the Constitution.

Turning to proposition 2, the title to House Concurrent Resolution No. 1033 submitting the proposition, reads:

“A Proposition to amend article 14 of the constitution of the state of Kansas, relating to constitutional amendment and revision.”

It is unnecessary to set forth proposition 2 in its entirety. The proposition amended Sections 1 and 2 of Article 14. Section 1 relates to amending the Constitution by the legislative method, and Section 2 relates to changes made in revising or amending the Constitution by the convention method.

The plaintiff contends the following changes made in Section 1, i. e,, submitting five amendments at the same election instead of three propositions as provided in original Section 1; changing the publication notice of amendments from three months to five weeks; submitting amendments by title generally descriptive of the content thereof; voting on amendments at a special election called for the purpose of submitting constitutional amendments; revising an entire article of the Constitution by one amendment, except the article on general provisions, and in revising any article, the article may be renumbered and all or parts of other articles may be amended, or amended and transferred to the article being revised, constitute separate propositions which must be submitted to the electors as separate amendments.

The plaintiff further contends that Section 2, which relates to calling a constitutional convention to "revise, amend or change” the Constitution, is a change of subject matter and must be submitted separately to the electors. In support of his contention, he argues that what the Legislature submitted in proposition 3 is exactly what the electors were asked to approve in Sections 1 and 2 of proposition 2, and that if proposition 2 is approved by this court, there would never be need to call a constitutional convention since the Legislature would have the right to submit five separate amendments at the same time to revise or change five entire articles of the Constitution. He further argues that the approval of proposition 2 by this court gives the Legislature the right to do by amendment what it is now required to do by constitutional convention, and the subject of constitutional convention is a separate and distinct change not related to, or dependent upon, any other change contained in proposition 2.

The plaintiff’s contentions are not well taken. It is clear the whole scope and purpose of the matter submitted to the electors in proposition 2 was a change in the manner of'amending and revising the Constitution. That was the main or controlling change submitted. While, as previously indicated, there is a difference between the legislative method and the convention method of amending and revising the Constitution, there is nothing incongruous or essentially unrelated in submitting those matters in one amendment, since the general subject involved relates to the manner of changing the Constitution. We do not state that the Legislature, had it seen fit, might not have submitted, as separate amendments, the question of the manner of amending the Constitution and of calling a constitutional convention, but we think that under the Constitution and within the limits stated in Timme, supra, as clarified and adopted in Kerby, supra, the question submitted was a single amendment and that separate propositions were unnecessary to accomplish a single purpose. Conceding the fact that both sections of the amendment consisted of considerable detail, certainly no good could result from a separate submission, which would be equally as well and better accomplished by submitting the matter together as one amendment. The question submitted in proposition 2 covered matters necessary to be dealt with in some manner to insure that the Constitution, as amended, would constitute a consistent and workable whole on the general topic embraced in Article 14 which was amended, and, logically speaking, the methods of amending and revising the Constitution should stand or fall as a whole.

The plaintiff lastly points out that three propositions to amend the Constitution were submitted by the Legislature to the electors at the general election in November, 1970. He contends that if either proposition 2 or 3 is found to contain two or more amendments, then four or more amendments were submitted to the electors, when the Constitution and this court has said that “under no circumstances may more than three proposals for constitutional amendments be submitted together (State, ex rel., v. Sessions, supra), and argues that all amendments submitted by the 1970 Legislature, are in violation of Section 1, Article 14, are invalid, and must be stricken down. The point is not well taken. The mandatory prohibition is directed at “propositions to amend” of which not more than three may be submitted together. The court is of the opinion that Section 1, Article 14, makes a distinction between the word “amendment” and the word “proposition,” that is, the constitutional prohibition is against submitting more than three proposals to amend the Constitution at the same time, however, if one of such propositions is found to contain more than one amendment, the other proposals to amend do not violate the constitutional prohibition. Even though the court has concluded that proposition 3 contains at least three amendments which should have been submitted to the electors separately, there were not more than three propositions submitted to the electors at the general election in 1970. The fact that proposition 3 has been determined to be invalid does not affect the validity of the submission of proposition 2.

For the reasons heretofore set forth, the judgment of the district court is affirmed in part and reversed in part, and it is directed to enter judgment in accordance with the views expressed in this opinion.

Schroeder and Fontron, JJ., concur in the result.