Harris v. Shanahan | Cases | Westlaw

Both houses of the 1963 legislature introduced bills to apportion their respective legislative districts. House Bill No. 1 was introduced in the house and Senate bill No. 440 was introduced in the senate. The house bill fixed the membership of that body at 105 members and repealed G.S.1961 Supp. 4–103. The bill passed the house, was amended and passed by the senate, and failed to achieve a constitutional majority upon roll call in the house to concur in the senate amendment. (Senate and House Journals, 1963 [H.J. p. 455].) Senate bill 440 repealed the 1947 apportionment of the senate (G.S.1949, 4–102) and reapportioned the 40 seats of that body. (Laws 1963, Ch. 13.) Based upon the 1962 census of state population of 2,165,009, an averagesized senatorial district should contain approximately 54,125 people. As introduced and passed by the legislature, senate bill 440 apportioned the state into 40 districts of approximately equal population, none of which varied more than approximately 10 percent from the average population figure of 54,125. The bill represented diligent and good-faith effort by the legislature to achieve the standard of equality of representation demanded by Article 10, Section 2, as hereafter noted, and we believe the minds of reasonable men could not doubt that a range of variance above and below the average district of *190 not more than approximately 10 percent constituted as close an approximation to exactness as possible.

It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature **780 until after the next regular apportionment period prescribed by the Constitution. (Jones v. Freeman, 193 Okl. 554, 146 P.2d 564; Denney, Clerk, et al. v. State, ex rel. Basler, 144 Ind. 503, 42 N.E. 929, 31 L.R.A. 726; People ex rel. Mooney v. Hutchinson, 172 Ill. 486, 50 N.E. 599, 40 L.R.A. 770; Parker et al. v. State ex rel. Powell, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119, 18 L.R.A. 567; People ex rel. Henderson v. Board of Supervisors of Westchester County, 147 N.Y. 1, 41 N.E. 563, 30 L.R.A. 74; Harmison v. Ballot Com'rs, 45 W.Va. 179, 31 S.E. 394, 42 L.R.A. 591; 18 Am.Jur., *191 Elections, p. 190, § 14.) The apportionment period provided in the Constitution does not, of course, require that the act be passed at a regular session, but a special session may be called for that purpose. (State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; 18 Am.Jur., Elections, p. 190, § 14.)

The existing apportionment of the house of representatives was enacted in 1961 and that of the senate in 1963. Thus, both being current in terms of time within the meaning of Article 10, Section 2, those acts are not subject to change by the legislature until the next constitutional apportionment period unless held to be invalid. Since there is a presumption that laws passed by the legislature are valid and constitutional until judicially determined to be otherwise, the legislature will be powerless to lawfully reapportion until the next apportionment period, unless this court adjudges the present senate apportionment act to be invalid. Accordingly, the effect of the omission of the city of Leawood from any senatorial district must be carefully considered at this time and touched upon in the court's opinion if opportunity for the correction of the senate apportionment is to be afforded prior to the primary and general elections in 1964.

The constitutionality of the 1963 act is clearly more critical now since the question whether it was duly and regularly enacted is sharply drawn into issue, and if decided in the negative, would leave the court necessarily deciding this case on the basis of the 1947 apportionment act (G.S.1949, 4–102) originally attacked by plaintiffs' petition if there be no subsequently valid act to replace it. Accordingly, we are of the opinion, under the issues presented and the legal question which has subsequently arisen concerning senate bill 440, that the validity of the 1963 senatorial apportionment is required to be determined along with the remaining issues of the constitutionality of the 1961 act apportioning the house of representatives.

*194 It is important here to state pertinent rules applicable to this constitutional provision which are essential to transferring a bill introduced in the legislature into a law. It has been held that the legislature and the governor exercise co-ordinate functions in enacting laws, and the governor is an essential part of the legislation. (State ex rel. v. Ryan, 123 Kan. 767, 771, 256 P. 811; State ex rel. Williams v. Robb, 163 Kan. 502, 183 P.2d 223.) Under this provision, until a bill has the final consideration of the three law-making powers, that is, the house, the senate, and the governor, it is not a law. (State v. Sessions, 84 Kan. 856, 868, 115 P. 641; State ex rel. v. City of Salina, 108 Kan. 271, 194 P. 931; State ex rel. v. Ryan, supra.) Hence, it is important that we keep in mind the distinction between a bill and a law. A bill never becomes a law until the constitutional pre-requisites respecting the manner of enactment have been fully complied with. (50 Am.Jur., Statutes, § 97, p. 103; 82 C.J.S. Statutes § 60b, p. 94.)

Another rule of long standing in this jurisdiction is that before an enrolled bill can be impeached successfully by the journals of the legislature, the latter must show affirmatively, clearly, conclusively and beyond all doubt that the bill as enrolled was not the bill passed. Also, that the records of the legislative journals import absolute verity and are conclusive as to the facts therein affirmatively shown. (In re Taylor, 60 Kan. 87, 55 P. 340; Belleville v. Wells, 74 Kan. 823, 824, 88 P. 47; Smith v. Robertson, 155 Kan. 706, 709, 128 P.2d 260, and cases cited.)

Another rule requiring consideration is that it is the policy of the courts to uphold legislative intent rather than to defeat it, and if there is any reasonable way to construe legislation as constitutionally valid it will be so construed. Further, that doubts as to constitutionality always are resolved in favor of validity and statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. (Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747, and cases cited; State ex rel. Anderson v. Fadely, 180 Kan. 652, 308 P.2d 537.)

We have no quarrel with the authorities cited, but they are not authority for the proposition which is sought to be drawn from them, that is, where the legislature passes one bill and another bill is presented to and signed by the governor, the court may reach out and draw from the legislative records the omitted portion of a bill and insert by judicial construction the omitted portion into law. The parties candidly concede there is no ambiguity in that part of the bill which established senatorial district 15. What they ask this court to do is not to construe the statute, but in effect, enlarge it so that what was omitted by inadvertence or error, may be included within its scope. To supply the omissions under these circumstances would transcend the judicial function. (Iselin v. United States, 270 U.S. 245, 46 S.Ct. 248, 70 L.Ed. 566; Ayers v. Commissioners of Trego Co., 37 Kan. 240, 242, 15 P. 229.) This court has the power to declare a legislative act invalid when in infringes the *196 superior law, but it has no power to correct or amend an act, or even construe it when expressed in plain and unambiguous language. The general rule is that where the statute is plain and unambiguous, there is no room left for judicial construction so as to change the language employed therein. (Fitzpatrick v. Gebhart, 7 Kan. 35.) In Russell v. Cogswell, 151 Kan. 793, 101 P.2d 361, it was said:

The rule is somewhat more limited than asserted by counsel. Generally speaking, courts have no right to correct errors made in an enrolled bill and they will ordinarily take the latter as they find it, and if not constitutionally enacted, will declare it void. (50 Am.Jur., Statutes, §§ 97, 232, 234, pp. 103, 219, 221; 82 C.J.S. Statutes § 60b, p. 94.) Nearly all the cases holding that errors and mistakes may be corrected deal with errors and mistakes apparent on the face of the legislative enactment, either standing by itself or in connection with other well-known facts. Very few of such cases deal with the question whether the **784 procedural steps in enacting the law have been followed; that is, whether the act signed by the governor was the act passed by the legislature. In other words, such cases deal in the main with the construction of the legislative enactment rather than the validity of the procedure or steps of its enactment. (State ex rel. Board of Com'rs of Laramie County v. Wright, 62 Wyo. 112, 163 P.2d 190.) In State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750, it was held that the construction of a statute, the function of a court to ascertain its scope and meaning, is not to be confused with the duty of determining its validity when measured by constitutional guaranties.

We assume that the intention of both houses of the legislature and of the governor was to enact a law which gave adequate senatorial representation to every citizen of Kansas, including the residents of the city of Leawood. No one questions that fact. But we are confronted with what was done, not what the legislature may have really intended to do. Hence, what was said and held in the Robb case is equally applicable in the instant case. The difference is slight. There we were concerned with an amendment to a bill passed by both houses of the legislature, which was omitted when the bill was enrolled and when signed by the governor, and here with a bill which was amended and passed by both houses, but when engrossed and enrolled and signed by the governor, a portion of the original bill was omitted. In the Robb case, the amendment was as much a part of the bill when it passed both houses of the legislature as was that part of line 48 and all of line 49 of senate bill 440 when it passed both houses of the legislature *200 following the house amendment. However, the omitted language in both was not in the enrolled bills when presented to and signed by the governor. Efforts to distinguish the Robb case from the instant case because there the omission ‘was an amendment,’ because it ‘dealt with an enactment—which would amend the general bonded debt limitation law’ and ‘was purely within the discretion of the legislature,’ whereas in the instant case, ‘the legislature was under a constitutional mandate to reapportion the senate,’ or, because the omission left the original bill in the instant case less clear and effective ‘for the purpose for which it was introduced,’ are not well taken. Both cases deal with acts of the legislature which are subject to the requirements of the Constitution. The long and short of this case is that the bill passed by both houses of the legislature was not the bill approved and signed by the governor and this court has no authority to insert what was omitted. The requirements of Article 2, Section 14, are mandatory that the governor sign the same bill which passed the legislature. It follows that the enrolled bill the governor signed (Laws 1963, Ch. 13) was not made into law in the form and manner prescribed, and is a void enactment.

The purport of Article 2, Section 2, and Article 10, Section 1, simply means that the number of representatives constituting the house of representatives, and the number of senators constituting the senate, shall be regulated by law; that the number of representatives and senators as regulated by law shall never exceed 40 senators and 125 representatives, but the number of representatives shall be not less than the number of organized counties which cast at least 250 legal votes at the last preceding general election. (State ex rel. Attorney General v. Francis, Treas., 26 Kan. 724.) The qualification that a county must cast 250 votes in order to have separate representation is virtually meaningless today since the 1909 reapportionment Act (Laws 1909, Ch. 196) gave all 105 counties at least one representative, and there has been no change since that time in the number of counties entitled to representation in the house of representatives. (Reapportionment of the Kansas Representatives, Research Department, *203 Legislative Council, Bulletin 181, December 1952.) In conformity with Article 2, Section 2, the legislature has provided that the senate shall consist of 40 members and the house of representatives shall consist of 125 members. (G.S.1949, 4–101.)

When the founding fathers wrote the Constitution of the United States they enthusiastically established a republican form of government which became the **789 cornerstone of American written constitutions. (James Madison's report of the ‘Debates in the Federal Convention of 1787’ [House Document No. 398, 69th Congress, first session, entitled ‘Documents Illustrative of the Formation of the *204 Union of the United States of America.’].) So there could be no mistake about its object and purpose, the American Republic officially and with the first breath of its new life declared, ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.’ (The Declaration of Independence.) This is the American proclamation of freedom and equality, and the individual worth of a single human being. Within its designated sphere of constitutionally allocated powers, and subject always to its guiding purpose as stated in the Declaration of Independence, the American system of Government was designed to function through representatives chosen by the people and responsible to them on regularly recurring election days. Article 4, Section 4, of the Constitution of the United States guarantees to every state in the Union a republican form of government and every sentence and provision of the Kansas Constitution evidences principle of that form of government declaring and guaranteeing the liberties of the people. A distinguishing feature of this form of government is that the people are capable of self-government and have the right to choose their own officials for governmental affairs and enact their own laws pursuant to the legislative power reposed in representative bodies. This representative system is the essence of the republican form of government and is premised upon the fact that the people cannot speak in mass, and the right to choose a representative is every citizen's portion of sovereign power.

Within the express and implied provisions of the Constitution of Kansas every qualified elector of the several counties is given the right to vote for officers that are elected by the people, and he is possessed of equal power and influence in the making of laws which govern him. (Bill of Rights, Kansas Constitution, Sections 1, 2.) Insofar as he is accorded less representation than is his due under the Constitution, to that extent the governmental processes fail to record the full weight of his judgment and the force of his will. The apportionment provisions were designed to guard that equality of representation so necessary to protect our citizens against the usurpation of governing power and resulting taxation without representation, and the intent and purpose of Article 10, Sections 1 and 2 may be simply stated: The legislature is directed to apportion *205 the state every fifth year after the year of 1866 into substantially equal legislative districts based upon the state's population for the preceding year, except that each organized county shall have at least one representative, and each county shall be divided into as many districts equal in population as it has representatives. The census used for this purpose is the official state census which is made on an annual basis. (G.S.1949, 11–101 et seq., as amended; Turner v. Board of Com'rs of Neosho County, 27 Kan. 639, 641; State ex rel. v. Montgomery County Com'rs, 125 Kan. 379, 381, 264 P. 84.)

The provisions requiring the legislature to provide a new apportionment every five years are mandatory and not subject to legislative discretion. This requirement is a mandate from the people and the legislature cannot, either by positive action or by inaction, alter our Constitution under which it has its own existence. The exercise of discretion and good faith by the legislature in enacting an apportionment law must be limited to the standards provided in our Constitution and not to some other which the Constitution has not fixed. This is not to say, however, that there is not an element of discretion involved in the enactment of any legislative apportionment. **790 Subject to the requirement of equal population provided by Article 10, Section 2, the location of boundaries, the shape, area, and other relevant factors are proper considerations for the legislature in the enactment of such a statute. Indeed, geographical considerations are necessarily attendant in the accomplishment of this purpose for the resulting districts should, where possible be compact and contain a population and area as similar as may be in its economical, political and cultural interests, all as determined by the legislature in its discretion, not acting arbitrarily or capriciously.

Subject, then, to geographical limitations of the house of representatives, Article 10, Sections 1 and 2, contemplates equal representation and such requirement will not be satisfied with less than such equality as common justice and ordinary knowledge of our territory and population would suggest. Perfect exactness in the apportionment of the legislature in accordance with the census of the preceding year is neither required nor possible, but there should be as close an approximation to exactness as possible and this is the utmost limit for the exercise of legislative discretion. (Prouty v. Stover, Lieut. Governor, supra.) In Ragland v. Anderson, &c., 125 Ky. 141, 100 S.W. 865, the Supreme Court of Kentucky considered this question, and said:

There should be no misunderstanding as to the function of this court in the case at bar. It is sometimes said that courts assume a power to overrule or control the action of the people's elected representative in the legislature. That is a misconception. First, the duty of reapportionment is legislative in nature and is committed by the Constitution to the legislature, and courts cannot make a reapportionment themselves. Second, conforming to concepts inherent in American republican form of government, the Constitution of Kansas distributes the powers of government to three distinct and separate departments, i.e., the Executive, Legislature, and Judicial. **791 The judiciary interprets, explains and applies the law to controversies concerning rights, wrongs, duties and obligations arising under the law and has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case *207 lies with the people. But 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. E. I. Du Pont De Nemours & 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. Every citizen and qualified elector in Kansas has an undoubted right to have the districts for representatives and senators created in accordance with the Kansas Constitution, and has a further right to invoke the power of the courts to protect such constitutional right. It is axiomatic that an apportionment act, as any other 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. It is not enough that one legislative district is of the proper size theoretically so long as other districts are given greater or less representation than is warranted by the Constitution and their population. The provisions of an act apportioning the state into legislative districts are so largely dependent on each other that if some of the districts are unconstitutionally apportioned, the entire apportionment is void.

The population statistics and related mathematical conclusions presented by plaintiffs were admitted by the defendants, and in passing upon the legal question presented in addition to the stipulation of the facts of the parties, this court takes judicial notice of any and all official publications of the Kansas State Department of Agriculture, the Secretary of State of Kansas, and any other public official or bureaus of the state which pertain to the official state census, the population of the state of Kansas, or of any of the counties, townships or cities located therein or which relate to the population of any of the districts in the house of representatives.

The admitted and stipulated facts of this case show on their face that the same commendable results achieved for the senate when the legislature passed senate bill 440 has not, unhappily, been reached with respect to the distribution of the 20 ‘extra’ seats in the house of representatives and the apportionment of districts *208 within multi-district counties. Subject to the geographical apportionment, the same requirement of equality of representation applicable to the senate is also applicable to the house of representatives, and as noted from the population statistics set forth in Appendix A and B to this opinion, there has been no compliance with that requirement. The stipulated facts show that the official 1960 population of Kansas was 2,130,579, and this was the census for the year preceding the 1961 apportionment of the house of representatives. (G.S.1961 Supp. 4–103.) Examining the act in the light of that census, Barton County, with a population of 34,147, was given two representatives with an average district population of 17,073. By contrast, the act gave Sedgwick County, with a population of 325,399, five representatives with an average district population of 65,079. This disparity of equality of representation is approximately 282 percent, and other multi-district counties show a similar disparity of average representation. In addition, the stipulation reflects a grossly unequal population basis **792 as between districts within the same county. The act assigned Leavenworth County two representative districts, one having a population of 23,707 and the other with a population of 14,214. Johnson County was assigned three representative districts, one having a population of 66,420 and another having a population of 29,500. Reno County was assigned two grossly disapportioned districts, one having a population of 50,451 and the other having a population of 9,518 reflecting an apportionment based on unequal population of a ratio of better than 5 to 1. On its face the act offends fundamental concepts inherent in our republican form of government and makes out a prima facie case of unequal representation so great that it repels any presumption there exists a fair approximation of what is required by Article 10, Section 2, and compels the conclusion that the challenged act is void and ineffective.

As we have seen, the 1963 regular session failed to enact valid apportionments of the house of representatives and senate for reasons heretofore related. However, the duty to properly apportion legislative districts is a continuing one, imposed by constitutional mandate upon the legislature, notwithstanding the failure of any previous session to make such a lawful apportionment, and this duty may be performed prior to commencement of the next pending electoral process by a special session called by the governor for that purpose pursuant to Article 1, Section 5 of the Kansas Constitution. The parties are agreed that notwithstanding the effect of this opinion holding the 1961 and 1963 apportionment acts to be unconstitutional and void in violation of Article 10, Section 2, and Article 2, Section 14, the legislature may meet at the call of the governor in special session and lawfully enact valid apportionment acts. The appellants suggest, however, that from the time of the election of each of the 125 representatives in 1962 and the 40 senators in 1960 until the date of this decision declaring the 1961 and 1963 apportionment acts to be unconstitutional and void, each member was a de facto legislator and his acts were acts of a de facto official, and that upon the filing of this opinion, those who were so elected have no power to respond to the proclamation of the governor calling a special session and to enact new apportionment laws in conformity with the requirements of our Constitution. The point is not well taken. In the first place, the legal status of the members of the house and senate is not reached in this suit, for it seeks only to bar use in the future of any existing invalid apportionment statutes as the basis for electing members of succeeding legislatures and not to oust present members of either the house or senate, or to challenge *214 their right to sit. In the second place, when each of the present 125 members of the house and 40 senators was duly elected, he was elected from a district then created by law for a term of two years and four years, respectively. (Article 2, Section 29.)

In Farrelly v. Cole, 60 Kan. 356, 56 P. 492, 44 L.R.A. 464, it was held that the matter of apportionment is only a provision for future elections; and is not designed to affect the title to office or the tenure of the members making the apportionment; that a member of the legislature, unlike a county or township officer, has no official functions to perform within the district **796 or territory from which he is elected; that members of the legislature are constitutional officers with fixed terms of office and are entitled to hold their respective offices for the constitutional period they were elected, and in the absence of a provision expressly provided when their term shall begin, it is competent for the legislature to fix the commencement of the term. This has been done by statute (G.S.1949, 25–316) which provides that the regular term of office for members of the house and senate shall commence on the second Tuesday in January next succeeding their election. Article 2, Section 8 declares that each house ‘shall be judge of the elections, returns and qualifications of its own members.’ This is a grant of power, and constitutes each house the ultimate tribunal as to the qualifications of its own members. The power is exclusively vested in each house and cannot by its own consent, or by legislative action, be vested in another tribunal or officer, and the power continues during the entire term of office. (State ex rel. v. Gilmore, 20 Kan. 551; State ex rel. Attorney General v. Tomlinson, 20 Kan. 692, 702.) It follows that when a member of the legislature is duly and regularly elected from a legislative district then created by law and his election and qualifications have been approved by the house to which he was elected and he takes the oath of office prescribed by law, he is entitled to exercise the legislative powers of his office during the term for which he was elected, at any regular or budget session or at a special session called by the governor. The fact that the present members of the legislature were duly elected from legislative districts under the 1947 apportionment law of the senate and the 1961 apportionment act of the house, which are declared to be unconstitutional and void by this opinion, does not preclude such members from meeting at a budget session or at a special session. They are de jure officers for the term for which they were elected and competent to enact legislation at either of those sessions, including at a special session, apportionment statutes *215 apportioning the state into equal or substantially equal legislative districts. (State v. Latham & York, 190 Kan. 411, 426, 375 P.2d 788.)

It is a matter of public knowledge that the legislature will convene in budget session on the second Tuesday in January, 1964, for 30 days and then adjourn. (Art. 2, Sec. 25.) This court feels certain that the governor will invoke constitutional processes and call the legislature into special session which will then be assembled at the state capitol, and that the legislature will enact valid apportionment acts apportioning the state into legislative districts pursuant to Article 2, Section 2, and Article 10, Sections 1 and 2 of our Constitution. Accordingly, if reapportionment of the state is accomplished in full compliance with the constitutional mandate, it may not be set aside by this court during its constitutional life and would not be subject to alteration until the next constitutionally established reapportionment period. Consequently, it would follow that judicial action would cease and the judgment of the court below pertaining to equitable relief as well as the manner of holding future elections as therein directed would die of its own terms.