Comm'rs of Sedgwick County v. Bailey

The opinion of the court was delivered by Valentine, J.: On March 3d 1868 an act of the legislature was passed entitled “An act defining the boundaries of counties.” (Gen. Stat., 228.) Under this act the boundaries of 79 counties were defined and established. In 1872 another act was passed entitled, “An act amendatory and supplemental to an act entitled ‘An act defining the boundaries of counties,’ approved March 3d 1868.” (Laws of 1872, page 183.) Under this act the boundaries of four counties were defined and established. Two of these counties were created by the act, and the other two simply had their boundaries changed. Section 5 of 'the act created the new county of Harvey, and in doing so took a portion of the county of Sedgwick and placed it within the boundaries of the county of Harvey. Section 6 reads as follows: “Sec. 6. The territory detached from the county of Sedgwick and made a part of the county of Harvey by this act, shall not in anywise be relieved from its obligation to pay its — 607 — proportion of all indebtedness of Sedgwick county which may be occasioned by the issue of bonds for or in aid of any railroad, which issue of bonds has heretofore been voted by the said county of Sedgwick, and the territory so detached shall pay the same proportion of said indebtedness as the length of the Wichita and Southwestern railroad within the county of Harvey bears to the entire length of said railroad between Newton and Wichita. The county clerk of Sedgwick county shall annually certify to the county clerk of Harvey county the amount of the taxes to be levied on territory so detached, to pay the interest and principal of said indebtedness as the same shall become due, and the county clerk of Harvey county shall apportion the same upon the taxable property - situated in said detached territory and insert the same in the assessment-roll of his county, and the same shall be collected as other taxes, and when collected shall be paid over by the county treasurer of Harvey county to the county treasurer of Sedgwick county, to be applied in the same manner as if collected by him.” (Laws of 1872, pp. 184, 185.) The first part of § 16 of article 2 of the constitution of Kansas reads as follows: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” Now it is claimed that said § 6 is in conflict with this provision of the constitution, and therefore void. This is the only question involved in this case. About twenty-seven states have constitutional provisions similar to that of ours. ’ In two of these states, Ohio and California, the provision is considered merely as directory to the legislature. But in all the others in which decisions upon the subject have been made, the provision is considered as mandatory. And it ought to be so considered. It would be a dangerous doctrine to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument. It would seem to be a lowering of the proper dignity of such an instrument to say that it descends to prescribing mere rules of order in unessential matters, which may be followed or disregarded at pleasure. Judge Cooley uses the following language: “The fact is this, that whatever constitutional — 608 — provision can be looked upon as directory merely, is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory, seems with many persons to be equivalent to saying that it is not law at all. That this ought not to be so, must be conceded. That it is so, we have abundant reason and good authority for saying. If therefore a constitutional provision is to be enforced at all, it must be treated as mandatory.” (Cooley’s Const. Lim., 150.) Now whether what Judge Cooley says is true or not, we have no doubt, both upon reason and authority, that the said constitutional provision should be considered as mandatory; and whenever the legislature clearly violates the , provision by putting something in the body of an act which is clearly not embraced in the title thereof, or is wholly foreign to the title, the courts should declare such portion of the act void. The language of this constitutional provision differs in some respects in the different states. We shall notice some of these differences. In some of the states the word “bill” is used where in others the word “act,” or “law,” is used. But as the question is usually presented to the courts it can probably make but little if any difference which one of words is used. Each as presented to the courts means the final determination of the legislature upon the particular subject embraced in such “bill,” “act,” or “law.” The word “act,” is probably the best word to use, for it includes no action of the legislature or of any person prior to the final passage of the act by the legislature, and it includes the whole of the act, nothing more, and nothing less. The word “law” is probably the worst word to use, for a portion of any act may be law, as well as the whole of the act. “ Law,” however, as here used, is intended to be synonymous with act. Our constitution, as well as those of Ohio, Nebraska, Pennsylvania, New York, Wisconsin, and perhaps some of the other states, uses the word “bill.” The word “bill” means the bill as it is first introduced into one of the houses of the legislature, and as it — 609 — may at any time be, in any of its stages, until it is finally passed by both houses of the legislature, signed by the officers of each house, signed by the governor, and filed away by the secretary of state, as the highest evidence of what the law is. When the bill is thus filed it is called the “ enrolled bill.” It is then the embodiment of the “ act,” the “ law,” that finally passed the legislature, and should contain but one subject, which subject should be clearly expressed in its title. In our opinion said constitutional provision is an imperative mandate to the legislature, commanding them that “No bill shall contain more than one subject, which shall be clearly expressed in its title; ” and if any bill in any of its stages should be in conflict with this provision, the legislature should, on or before its-final passage, correct it, so as to make it harmonize with said provision; and if the legislature should fail to so correct it, the bill itself, or some portion thereof, would be void. In Florida, Indiana, Iowa, Nevada, and Oregon, their constitutional provision upon this subject is, that every act or law “shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.” [In Florida and Nevada, the language is, “which subject shall be briefly expressed in the title.”] In the Kansas constitution the above words in italics are omitted. Hence in Florida, Indiana, Iowa, Nevada, and Oregon, the legislature may, without violating' their constitution, place in the body of the act matters properly connected with the subject expressed in the title thereof, (although these matters themselves may not be expressed in the title,) while -in this state, under our constitution, such a thing could not be done. This difference will account for certain decisions made in some of the above-mentioned stages. These are the only differences of which we shall take notice. The next question is, whether said § 6, or any part thereof, is not expressed in the title of the act. We suppose there can be but one answer to this question. Neither the act of 1868, nor the act of 1872, mentions any subject except that of — 610 — “ defining the boundaries of counties.” This title is probably broad enough to authorize the changing of county lines, the establishing of county lines, the creation of the .boundary lines of new counties, substantially the creation of new counties; but still it can do nothing more than to authorize the defining and establishing of the territorial boundaries of either old or new counties. It cannot authorize the establishment of an arbitrary rule, or indeed of any rule, for taxing the inhabitants of that portion of Sedgwick county attached to Harvey county. The title of the act is not broad enough to include assessment or taxation of any kind. Of course, the legislature could have passed a bill under a title broad enough to include all that is contained in said §§ 5 and 6, and such bill would have been valid; but they did not do it. Who would think of looking for any kind of assessment or taxation under such a title as that prefixed to said ch. 97 of the laws of 1872? And who would think of finding under such a title an arbitrary rule of assessment and taxation, differing in almost every particular from the general rule established for the other counties in the state? As the legislature will frequently be called upon to change the boundary lines of counties, it would probably be better for them to pass a general law for the assessment and collection of taxes from territory detached from one county and attached to another, where one county is more in debt than the other; otherwise they will have to make the title to the act in each case broad enough to include assessment and taxation to pay previous indebtedness, as well as to include the changing of boundary lines.' Whether the rule attempted to be established for taxing the territory detached from Sedgwick county and attached to Harvey is just, or not, we cannot tell. It would seem that if said territory should continue to assist in paying the old debts of Sedgwick county it ought to be relieved from assisting to pay the old debts of Harvey county. And it would further seem that if said territory is still to continue to assist in paying the old debts of Sedgwick county, it ought in doing so, to pay qs a property tax the same percentage on the value — 611 — of the property within said territory which the territory still remaining in Sedgwick county does on its property. The rule that, “the territory so detached shall pay the same proportion of said indebtedness ás the length of the Wichita & Southwestern Railroad within the county of Harvey bears to the entire length of said railroad between Newton and Wichita,” may be unjust, and it is certainly very arbitrary. We cannot however take judicial notice that it is unjust, and therefore could not in the absence of evidence showing the same to be unjust declare that the rule is unconstitutional for that reason. (Comm’rs of Sedgwick Co. v. Bailey, 11 Kas., 631, 635.) Section 5 of said act defining the boundaries of Harvey county and detaching a portion of the territory of Sedgwick county, and attaching it to the county of Harvey, does not depend for its validity upon section six of the act which provides for levying and collecting taxes from said detached territory to pay certain old debts of Sedgwick county, and therefore the whole of said § 6 may be void and the whole of § 5 be valid. Hence no argument can be made that it was necessary to pass § 6 in order to pass § 5. This provision of the constitution found in the constitutions of the most of the states is elaborately discussed in Sedgwick’s Statutory and Constitutional Law, (2d ed.) See also Cooley’s Const. Lim., 141 to 151. The motion to quash the alternative writ of mandamus will be sustained, and judgment rendered for the defendant for costs. All the Justices concurring.