Philpin v. McCarty

The opinion of the court was delivered by

Brewer, J.:

This is an original action, brought by the plaintiffs against the defendant, who is superintendent of public schools for Ford county, Kansas, to compel him to act 'upon a petition presented to him by over twenty householders of Sequoyah county, an unorganized county attached to said county of Ford for judicial purposes, to expose for sale certain school land in said Sequoyah county, to wit: A part of section 16, township 24, south, range 32, west, under §193, ch. 92, Compiled Laws 1879. To the alternative writ, defendant filed a motion to quash, upon which this case is submitted.

The case turns upon the constitutionality of §31, ch. 72 of the Laws of 1873, for if that be_ valid, it seems clear that Sequoyah county is, pro hac vice, a township of Ford county county. Said section is as follows:'

“Sec. 31. That so long as any one of the unorganized counties, in the state shall be attached to an organized county for judicial purposes, it shall constitute and form one of the municipal townships thereof, and as such shall be entitled to township officers, and all things .pertaining to the rights and privileges of a township, and be subject to the same regulations and liabilities as other townships- of such county, and its electors shall be deemed legal electors of the county to which it is attached; and the officers of the county to which it is attached shall have the same powers, and perform the same duties, in reference to such attached county, as they have over the municipal townships of their own county; and such municipal township, created under this act, shall hav,° power to issue township bonds to the amount of ten thousand dollars, to be used solely for the construction of bridges within such township; said bonds to be issued by a vote of the people, and in manner as prescribed by the laws regulating the sale of bonds and 'construction of works of internal improvement: Provided, however, That in no case shall the taxable property of such unorganized county be liable to be taxed for the construction of county buildings, or making public improvements within such organized county; nor shall its electors have the right to vote on any question involving the location of county seats, erection of county buildings, or making public improvements, or on the election of county officers or representatives within, or for such organized county: And provided further, That all such school districts within such unorganized county shall be separately described and numbered by the commissioners of such organized county, who shall appoint a deputy-school superintendent for this purpose, and also a deputy county surveyor.”

No question is made of the power of the legislature to enact such a statute, but the point of challenge is in the title to the act in which this section is found. The question is, is §31, of ch. 72 of Laws of' 1873, as quoted, in conflict with §16, art. 2, of the constitution of Kansas? Said section of the constitution provides: “ No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” The first clause is all that applies in this case. The act in question is entitled “An act to amend sections thirteen, twenty-five, thirty-one, fifty-two, fifty-seven, sixty-six, and seventy-three, of chapter twenty-four, of the General Statutes of Kansas, and providing for the enforcement of the laws and the preservation of the peace in unorganized counties of' the state of Kansas.” Now, is the subject clearly expressed in the title of this act, and is it comprehensive enough to cover the matter found in §31?.

The title to said chapter 24 is, “An act defining the boundaries of counties” — every section in that act, except sections 1 and 81, relating exclusively and directly to county boundaries. Sec. 1 divides the state into counties and gives their names, while § 81 contains certain provisions for the ■organization of unorganized counties. The several sections •of this act named in the title and amended by the act of 1873, refer exclusively to county boundaries. This latter act also •contains sections defining the boundaries of twenty-two additional counties. ' It further contains the section quoted and two or three more of kindred import. Now, that this §31 ■comes within the scope of the latter part of the title, is clear. The very substance is the - means of executing the law. It •enacts no new body of laws, but simply provides how the general laws of the state shall be carried into effect in certain counties. It provides the machinery, the organization, the •officers. It provisionally organizes unorganized counties into townships, and authorizes the officers of the counties to which they are attached to act in them. It, so to speak, extends the organization of one county into another, and thus provides for enforcing the laws in the latter. Beyond doubt the •subject-matter of this section is clearly expressed in the title.

But it may be said (and that is the real point of challenge) that its subject-matter is entirely foreign to that expressed in the first part of the title, which refers solely to the matter of •boundaries; in other words, that the act contains more than •one subject. It deals with boundaries, and it provides for the enforcement of the laws in unorganized territory. These two are not parts of one subject. As well unite in one act the matter of county boundaries and provisions for enforcing the laws as a whole, or any particular law in all or a single ■organized county. We have had several cases before us in which the ground of challenge has been that some part of the act referred to matters not expressed in the title, and wherever that has clearly appeared, we have not hesitated to say that the act, so far as it related to such extraneous' matters, was unconstitutional and void. Unlike the decisions in some states, but in- harmony with the rulings of most and in accord with the spirit - and purpose of the constitutional provision, we have held it mandatory, and not simply directory. Commissioners of Sedgwick County v. Bailey, 13 Kas. 600; Prescott v. Beebe, 17 Kas. 322; Swayze v. Britton, 17 Kas. 625; Davis v. Turner, 21 Kas. 131; In re Holcomb, 21 Kas. 628; Bowman v. Cockrill, 6 Kas. 311; City of Eureka v. Davis, 21 Kas. 578; Woodruff v. Baldwin, 23 Kas. 491; Shepherd v. Helmers, 23 Kas. 504; State, ex rel., v. Bankers’ &c., Ass’n, 23 Kas. 499.

1- theoonstttútion, mandatory. We see no reason to depart from the views expressed in those cases, and hold that said section 16 of art. 2 is mandatory. It is mandatory, not merely in the provision that the subject of the act shall be clearly expressed in the title, but also in that the act shall contain ... but one subject. Y et this constitutional requirement is not to be enforced in any narrow or technical spirit. It was introduced to prevent a certain abuse, and it should be construed so as to guard against that abuse, and not to embarrass or obstruct needed legislation. That abuse was this: Ofttimes a matter of merit and commanding general confidence was yoked to something unworthy, and by this union the latter was carried through on the strength of the former. This provision was designed to prevent this, to make every measure stand upon its own merits, and to cut off omnibus legislation. Of course, where all the different matters of the bill are clearly expressed in the title, there is no danger of surreptitious legislation, for all are advised by the title of what legislation is proposed. But two measures entirely foreign to each other cannot now be joined in one act. They must be presented separately and a separate vote had upon each. The assent of a majority of each house must be recorded before any proposition passes into a law, and it must be so recorded separately upon each independent proposition. An assent to two independent matters jointly will make neither of them a law. These views are well supported by authority. The constitution of New Jersey thus states the reason for this rule: “To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other.” The supreme court of Michigan say (People v. Mahaney, 13 Mich. 494): “The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state.” The supreme court of Iowa express the same idea thus (State v. County Judge, 2 Iowa, 282): “ The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation.” Cooley, in his work on Constitutional Limitations, p. 143, uses this language: 2 It may therefore be assumed as settled, that the purpose of these provisions was, first, to prevent hodge-podge, or ‘logrolling’legislation.” And again, p. 146: “There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.” Many cases might be cited showing the disposition of courts to uphold legislation, which perhaps might technically conflict with this constitutional provision, where it is evident that the real wrongs sought to be remedied did not exist. Thus under a title, “An act for the .more uniform doing of township business,” provisions for tte organization of townships were sustained; (Clinton v. Draper, 14 Ind. 295.) An act to incorporate a railroad company may authorize counties to subscribe to its stock, or otherwise aid in the construction, of the road; (Supervisors v. People, 25 Ill. 181.) The organization and sitting of courts in new. counties is within the scope of an act entitled “An act to authorize the formation of new counties and to change county-boundaries;” (Brandon v. The State, 16 Ind. 197.) But it is scarcely necessary to multiply citations. The rule is one which commends itself to the good sense of all.

Now in the case at bar, there is no private or special legislation, nothing which would promote personal or local interests,- or would prompt the friends of independent measures to unite those measures to avoid opposition to them separately. The legislation is general, and in reference to matters in which the state as a whole is interested. It contains neither contract nor appropriation. It favors no locality and confers no benefits, save as it assures peace and law on the frontier. If any act is general in its scope, this is. If any could be induced by a simple desire for the public good, this was.

Again, the act combines the division of the state into counties and the definition of their boundaries with general provisons for enforcing the laws in such of those counties as are as yet unorganized. These provisions are, that for certain purposes the unorganized shall be deemed parts of-the organized counties. Pro hao vice, the boundaries of the latter are enlarged so as to include the former. It is tantamount to this: one part of the statute gives the territorial boundaries; the other provides what shall be, for certain purposes, the legal boundaries. It is not a very broad construction to say that the entire act relates to county boundaries; at least so far as the special clauses affecting the case in hand. It may be there are some details or particular clauses which do not come within this description. But for this case the section simply provides that the legal boundaries of Ford county shall for school purposes include Sequoyah county, and that the citizens of the latter shall have the benefit of all the school laws as fully and in the same manner as though they were within the territorial limits of the former county. It is true the section goes much into detail, but the effect, the sum and substance of it, is as stated. And in constitutional questions at least, we must always reach for the substance' rather -than the form.

We do not think it material that this section is in an amendatory act. This is not like the case of The State, ex rel., v. Bankers’, &c., Ass’n, supra, where the title limited the change to certain specific sections, and therefore impliedly excluded other matters. Here the title notifies that certain sections are to be amended, and this further matter introduced. It is therefore as though it were part of the original act, with the title to that enlarged by the latter portion of the title to the amending act.

2 Sec. 31 ch. 72 'vaiia °'f18'73’’ Finally, it should be noticed that this act has been on the statute book for over seven years, unchallenged; that under it. the laws have been enforced, proceedings had, judgments rendered, and rights acquired, through the whole western portion of the state. To overthrow it now would work great hardship. And while this does not conclude the matter, yet this general recognition of its validity is an argument of weight in favor of its constitutionality. We ° “ are n°k disposed to undervalue the argument against the section, or limit the force of the constitutional provision, nor do we assert that this section is clearly constitutional; but for the reasons above given, we think it can be upheld, and that the very doubt should be resolved in its favor.

The prayer of the petitioners will be granted, and the mandamus issued.

All the Justices concurring.