State ex rel. Brewster v. Knapp

171 P. 639, 102 Kan. 701, 1918 Kan. LEXIS 124

• Court: Supreme Court of Kansas
• Decided: March 9, 1918
• Docket: No. 21,790
• Status: Published

Opinions

The opinion of the court was delivered by

Mason, J.:

Merrell Gage has presented to the auditor a claim against the state for $1,500 on account of a statue of Lincoln recently erected on the statehouse lawn, and has requested its allowance. The auditor, being in doubt as to the legal authority for the payment of the claim, has declined to approve it until the question shall have been judicially determined. For the purpose of such determination this proceeding has been brought, a mandamus being asked by the attorney-general, requiring the auditor to approve the claim and issue a warrant therefor, and the state treasurer to pay it. The case is submitted upon the pleadings. It is agreed that the plaintiff has done everything possible on his part to entitle him to the payment asked, and the only doubt in the matter 'is whether any valid appropriation has been made therefor. If so, it is by virtue of action of the legislature which is recorded as chapter 346 of the Laws of 1917, reading as follows:

“House Concurrent Resolution No. 25.

“Relating to an appropriation for purchasing and aiding in the erection of the Merrell Gage statue ■ of Abraham Lincoln upon the capítol square.

“Whereas, The sculptor, Merrell Gage, has produced an excellent statue of the great emancipator and typical American,' Abraham Lincoln, the completed model of which is on exhibit at Mr. Gage’s studio, 1027 Fillmore street, in the city of Topeka; and

“Whereas, Art critics, as well as persons who- knew President Lincoln' personally, declare the same to be an accurate and lifelike reproduction of President Lincoln; and,

“Whereas, The .Woman’s Club of the city of Topeka, and many other public spirited citizens of such city, have expressed the desire to have the statue erected on the capítol square, and have expressed a willingness to supply, or to procure the supply of by the city of Topeka, one-half of the cost of such statue and the erection thereof on the capítol square, provided the state of Kansas is willing to permit the same to be placed there, and to pay the other half for the cost and erection of such statue: therefore,

“Be it resolved by the House of Representatives of the State of Kansas, the Senate concurring therein:

“Section 1. That the sum of fifteen hundred dollars is hereby appropriated for the purpose of assisting in the purchase, erection and unveiling of a bronze statue of Abraham Lincoln, created by Merrell Gage, said statue to be erected and located upon the statehouse lawn or square, and at such place thereon as shall be designated by the Executive Council of the state, and the Executive Council are hereby authorized and empowered to permit the erection of said statue upon the statehouse lawn or square; provided, that the amount herein appropriated shall be in full of all claims or demands of every kind or character against the state; provided further, that said sum shall not be available or paid until the city of Topeka or the citizens of the city of Topeka shall have made provisions, in full, for the entire purchase price, erection and expenses incident to the- unveiling of said statue; or, shall produce and file with the auditor of state a receipt in full from the said Merrell Gage together with a bill of sale transferring to the state of Kansas all of his right, title and interest in and to said statue; and; also, a receipt or receipts showing that all expenses of every kind or character incident to the erection, and unveiling of said statue has been fully paid and satisfied by the city of Topeka or the citizens of the city of Topeka.

“Sec. .2. That the auditor of state is directed to draw his warrants in favor of Merrell Gage for the sum and the purposes herein- named, and upon his verified voucher therefor, accompanied by the -receipt and bill of sale provided for in section 1 of this act.

“Sec. 3. This act shall take effect and be in force from and after. its publication in the official state paper.

“Approved [by the governor] March 3, 1917.

“Published in official state paper March 7, 1917.”

Our constitution-provides that “no money shall be drawn from the treasury except in'pursuance of a specific appropriation made by law” (art. 2, § 24), and that “no law shall be enacted except by bill” (art. 2, § 20). The same article of the constitution, however, recognizes that a law may be created by joint resolution. The section relating to the exercise of the veto power of the governor reads as follows, the last sentence having been added in 1904:

“Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but .if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two-thirds of the paembers elected shall agree to pass the bill or resolution, it shall be sent, with the objections; to the senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a lazo; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journal of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented, to the governor, it shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall hot become a law. If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, while approving the other portion of the bill; in such case he shall append to the bill, at the time of sig-ning it, a statement of the item or items to which he objects, and the reasons therefor, and shall transmit such statement, or a copy thereof, to the house of representatives, and any appropriation-.so objected to shall not take effect unless reconsidered and approved by two-thirds of the members elected to each house, and, if so reconsidered and approved, shall take effect and become a part of the bill, in which case the presiding officers of each house shall certify on such bill such fact of reconsideration and approval.” [Italics added.] (Const, art. 2, § Í4.) ,

This section as originally framed resembled the corresponding section in a number of state constitutions, as well as that of the federal constitution, but the phrase “and joint resolution” was new, although in Michigan the words “and concurrent resolution” were used (art. 4, § 14), and in Maine “or resolution having the force of law” (art. 4, §2). The veto clause of the federal constitution is made applicable to “every order, resolution, or vote to which the concurrence of the senate and house of representatives may-be necessary (except on a question of adjournment)” (art. 1, §7). The section quoted expressly declares that if a joint resolution which has been disapproved by the governor afterwards receives a two-thirds vote in each house “it shall become a law.” The inference seems clear that a joint resolution which is approved by the governor after its adoption by the legislature thereby becomes a law, although this is not declared in so many words. If a law can be enacted only by bill, and a joint resolution may become a law, it would seem that a joint resolution must be a bill, or may in some instances be regarded as a bill. And such is said to be the congressional practice in this section of a well-known work which dates back to 1856:

“A form of legislation, which is in frequent use in this country, chiefly for administrative purposes of a local or temporary character, sometimes for private purposes only, is variously known, in our legislative assemblies, as a joint resolution, a, resolution, or a resolve. This form of legislation is recognized in most of - our constitutions, in which, and in the rules and orders of our legislative bodies, it is put upon the same footing, and made subject to the same regulations, with bills properly so called. In congress, a joint resolution, which is the name given in that body to this kind, of legislation, is there regarded as a bill.” (Cushing’s Law and Practice of Legislative Assemblies, 2d ed., §2403.)

Whether or not legislation may ordinarily be accomplished by means of the adoption of a proposition submitted in the' form of a resolution, we conclude that the process used in the case now under consideration amounted to the enactment of a law by bill. While the instrument acted upon by the two houses and the governor described itself as a concurrent resolution, it had every characteristic, in form and treatment, of such a bill as by the combined action of the legislature and the governor becomes a law. It had a title which clearly expressed its subject to be the appropriation of money to pay for the Lincoln statue. It was read on three separate days in each house. It contained a provision declaring that “this act” should take effect upon its publication. In each house it received the votes of a majority of the members elected, and the result of the roll call was entered in full on the journal. It was submitted to and approved by the governor, and published in the official state paper and in the statute book. “Joint resolutions,” which may sometimes become laws, are, required by the constitution to be adopted by a majority of the membership in each house (art. 2, § 13), by a recorded vote (art. 2, § 10), as well as to be approved by the governor, and “acts” of the legislature must take effect at a prescribed time, and be published (art. 2, § 19) ; but, save for these requirements, no mere resolution needs to have a title, to be read on three separate days, to show when it takes effect, to be- adopted by a yea and nay vote entered on the journal, to be approved by the governor, of to be published. The treatment given this measure seems to show that it was regarded by the legislature and the governor as a “bill.” It ought to be given effect as such, unless some insuperable obstacle is interposed. The fact that it is styled a' concurrent resolution, rather than a joint resolution or bill, is not in itself especially important. It should be classified by its essential qualities rather than by what it happens to have been called.' All that it lacks of the necessary characteristics of a bill is a literal compliance with the requirement that “The enacting clause of all laws shall be ‘Be it enacted by the legislature of the state of Kansas.’ ” (Constitution, art. 2, § 20.) In lieu of this, however, it has one reading “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein.” • The courts are divided in opinion on the question whether a provision of the constitution prescribing a form of enacting clause is mandatory or directory. (Note, L. R. A. 1915 B, 1060-1063.) Those which consider it mandatory hold the entire absence of the clause to be fatal (same note, p. 1061), and such is the practice in this state. (In re Swartz, Petitioner, 47 Kan. 157, 27 Pac. 839.) But even where that rule obtains, a substantial compliance is all that is deemed necessary. (Note, L. R. A. 1915 B, 1061-1062.) The turning point in the present controversy is whether the words: “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein,” convey essentially the same meaning as “Be it enacted by the legislature of the state of Kansas,” In a familiar case a conviction on a charge of felony was set aside because the word “the” was omitted from the concluding clause of an indictment, so that it read “against the peace and dignity of state” instead of “against the peace and dignity of the state.” It was there conceded that a substantial conformity to the requirement of the constitution was all that was necessary, the court saying:

“It is plainly manifest that, the definite article ‘the’ which should immediately precede the word ‘State’ being omitted, the conclusion to the indictment in the case at bar falls far short of indicating the power or authority against which the facts charged in the body of the indictment constitute an offense. . . . It is clear that the omission of this word not only changes the sense but the very substance of the clause. . . . In the use of the definite article ‘the’ immediately preceding ‘State’ in the conclusion prescribed by the Constitution we have pointed out the State whose peace and dignity has been offended, and by the omission of such definite article we have a conclusion that does not designate the power or authority against which the offense is committed. ... If this conclusion embraced language similar to that pointed out in the cases to which we have heretofore deferred, such as ‘against the peace and dignity of our said State,’ or ‘against the peace and dignity of State of Missouri,’ it might be very properly ruled that such language was at least equivalent to the language prescribed by the Constitution, for the reason that it indicated the power and authority against which the offense as charged in the body of the indictment constitutes an offense.” (State v. Campbell, 210 Mo. 202, 224, 225.)

Whatever may be thought of the application there made of the rule, the statement of the general principle is obviously sound — that the test to be applied is whether the language employed conveys the same meaning as the language prescribed. In the matter now under consideration, if the expression used had been “Be it legislated by the legislature of the state of Kansas,” or “Be it enacted by the house of representatives and senate of the state of Kansas,” it would hardly be doubted that the requirement of the constitution was substantially met. We think that the clause, “Be it resolved by the house of representatives of the state of Kansas, the senate concurring therein,” unequivocally indicates that the two houses comprising the Kansas legislature unite in giving their approval to the sections which follow it, with the purpose to' give them the effect which they purport to have, and that this is all that could have been accomplished by a literal adherence to the. formula employed by the constitution.

A requirement of the constitution that “The style of the laws of the state shall be, ‘Be it enacted by the legislature of the state of Mississippi,’ ” was held to be met by the use of the word “resolved” in the place of “enacted,” the court saying: “The word ‘resolved’ is as potent to declare the legislation with as the word ‘enacted.’ ” (Swann v. Buck, 40 Miss. 268, 293.) That decision was followed, the language quoted being expressly approved, in Smith v. Jennings, 67 S. C. 324. In May v. Rice, Auditor, 91 Ind. 546, a joint resolution for the appropriation of money was held to be ineffective, but it was not in fact approved by the governor, and in the opinion stress was laid on the consideration that the constitution made no provision for the presentation of a joint resolution to the governor for his approval, the case of Swann v. Buck, supra, being distinguished on this ground and also upon a difference in the language of the provision regarding the enacting clause.

In at least two instances, the Kansas legislature has attempted to appropriate money by the adoption of a measure described as a joint resolution. (Laws of 1889, p. 421; Laws of 1891, p. 416.) It may be doubted whether either attempt was technically successful, for neither document contained any provision as to the time of its taking effect, or for its publication, although each was in fact published in the statute book. Here, however, inasmuch as we conclude that every requirement of the constitution has been substantially complied with, the result is a valid enactment.

Judgment is rendered in favor of the plaintiff, determining that the claim should be approved and a warrant issued and paid. The issuance of a writ will of course not be necessary.