That the power to sell tickets in every part of the United States might facilitate their sale, is not to be denied; but it does not follow that Congress designed, for the purpose of giving this increased facility, to overrule the penal laws of the several states. In the city of Washington, the great metropolis of the nation, visited by individuals from every part of the Union, tickets may be freely sold to all who are willing to purchase. Can it be affirmed that this is so limited a market that the incorporating act must be extended beyond its words, and made to conflict with the internal police of the states, unless it be construed to give a more extensive market?

It has been said that the states cannot make it unlawful to buy that which Congress has made it lawful to sell.

This proposition is not denied; and, therefore, the validity of a law punishing a citizen of Virginia for purchasing a ticket in the city of Washington, might well be drawn into question. Such a law would be a direct attempt to counteract and defeat a measure authorized by the United States. But a law to punish the sale of lottery tickets in Virginia, is of a different character. Before we can impeach its validity, we must inquire whether Congress intended to empower this corporation to do any act within a state which the laws of that state might prohibit.

445] In addition to the very important circumstance, that the act contains no words indicating such intention, and that this extensive construction is not essential to the execution of the corporate power, the court cannot resist the conviction that the intention ascribed to this act, had it existed, would have been executed by very different means from those which have been employed.

Had Congress intended to establish a lottery for those improvements in the city which are deemed national, the lottery itself would have become the subject of legislative consideration. It would be organized by law, and agents for its execution would be appointed by the President or in such other manner as the law might direct. If such agents were to act out of the district, there would be, probably, some provision made for such a state of things, and in making such provisions Congress would examine its power to make them. The whole subject would be under the control of the government, or of persons appointed by the government.

But in this case no lottery is established by law, no control is exercised by the government over any which may be established. The lottery emanates from a corporate power. The corporation may authorize, or not authorize it, and may select the purposes to which the proceeds are to be applied. This corporation is a being intended for local objects only. All its capacities are limited to the city. This, as well as every other law it is capable of making, is a by-law, and, from its nature, is only co-extensive with the city. It is not probable that such 446 an agent would be employed in the execution of a lottery established by Congress; but when it acts, not as the agent for carrying into effect a lottery established by Congress, but in its own corporate capacity, from its own corporate powers, it is reasonable to suppose that its acts were intended to partake of the nature of that capacity, and of those powers; and, like all its other acts, be merely local in its nature.

The proceeds of these lotteries are to come in aid of the revenues of the city. These revenues are raised by laws whose operation is entirely local, and for objects which are also local; for no person will suppose, that the President's house, the Capitol, the Navy Yard, or other public institution, was to be benefited by these lotteries, or was to form a charge on the city revenue. Coming in aid of the city revenue, they are of the same character with it; the mere creature of a corporate power.

The circumstances, that the lottery cannot be drawn without the permission of the President, and that this resource is to be used only for important improvements, have been relied on as giving to this corporate power a more extensive operation than is given to those with which it is associated. We do not think so.

The President has no agency in the lottery. It does not originate with him, nor is the improvement to which its profits are to be applied to be selected by him. Congress has not enlarged the corporate power by restricting its exercise to cases of which the President might approve.

We very readily admit, that the act 447 establishing the seat of government, and the act appointing commissioners to superintend the public buildings, are laws of universal obligation. We admit, too, that the laws of any state to defeat the loan authorized by Congress, would have been void, as would have been any attempt to arrest the progress of the canal, or of any other measure which Congress may adopt. These, and all other laws relative to the district, have the au

thority which may be claimed by other acts of the national legislature; but their extent is to be determined by those rules of construction which are applicable to all laws. The act incorporating the city of Washington is, unquestionably, of universal obligation; but the extent of the corporate powers conferred by that act, is to be determined by those considerations which belong to the case.

Whether we consider the general character of a law incorporating a city, the objects for which such law is usually made, or the words in which this particular power is conferred, we arrive at the same result. The corporation was merely empowered to authorize the drawing lotteries; and the mind of Congress was not directed to any provision for the sale of the tickets beyond the limits of the corporation. That subject does not seem to have been taken into view. It is the unanimous opinion of the court, that the law cannot be construed to embrace it. Judgment affirmed.

Judgment. This cause came on to 448 be heard on the transcript of the record of the Quarterly Session Court for the borough of Norfolk, in the commonwealth of Virginia, and was argued by counsel. On consideration whereof, it is adjudged and ordered, that the judgment of the said Quarterly Session Court of the borough of Norfolk, in this case, be, and the same is hereby affirmed, with costs.

SUPREME COURT OF KANSAS, JULY TERM, 1937

COLEMAN V. MILLER
No. 33,459

ROLLA W. COLEMAN, W. A. BARRON, Claude C. BRADNEY, J. B. CARTER, WILFRED CAVANESS, KIRKE W. DALE, JESSE C. DENIOUS, BENJAMIN F. ENDRES, EWING HERBERT, W. E. IRELAND, WALTER F. JONES, WALTER E. KEEF, FRED R. NUZMAN, ERNST F. PIHLBLAD, C. W. SCHMIDT, THALE P. SKOVGARD, HARRY M. TOMPKINS, RAY C. TRIPP, ROBERT J. TYSON, N. B. WALL, RAIMON C. WALTERS, GEORGE W. PLUMMER, FRANK C. POMEROY AND A. W. RELIHAN, Plaintiff, v. CLARENCE W. MILLER, as Secretary of the Senate, WILLIAM M. LINDSAY, as Lieutenant Gover nor and President ex officio of the Senate, H. S. BUZICK, JR., as Speaker of the House of Representatives, W. T. BISHOP, as Chief Clerk of the House of Repre sentatives, and FRANK J. RYAN, as Secretary of State; and THE STATE OF KANSAS, Defendants.

(71 P. 2d 518)

SYLLABUS BY THE COURT

1. STATUES-Enactment of Bills and Resolutions-Lieutenant Governor's Right to Vote. Upon the pasage of a bill or joint resolution, where the senate is equally divided, the lieutenant governor, under section 12 of article 1, and section 13 of article 2 of the constitution, is not entitled to vote.

2. SAME Concurrent Resolution--Nature and Effect. Where, upon the passage of a senate concurrent resolution ratifying the proposed child-labor amendment to the constitution of the United States, the senate was equally divided, it is held that as such measure was not an act of legislation having the force of law, but a mere expression of assent of the legislature to the proposed amendment, under the above sections of the constitution of Kansas, the lieutenant governor was entitled to cast the deciding vote on such concurrent resolution.

3. CONSTITUTIONAL LAW - Amendments — Ratification by States - Validity. Where the legislature has rejected an amendment to the constitution of the United States proposed by congress, it may later reconsider its action and give its approval to such proposed amendment.

4. SAME Amendments—Time for Ratification. The child-labor amendment to the constitution of the United States, proposed by congress by resolution adopted by that body on June 2, 1924, retained its vitality as a proposed amendment, and the action of the state senate on February 15, 1937, in adopting the senate concurrent resolution ratifying such proposed amendment was valid and binding.

Original proceeding in mandamus. Opinion filed September 16, 1937. Writ denied.

Rolla W. Coleman, of Olathe, Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson and Ralph W. Oman, all of Topeka, for the plaintiffs. E. R. Sloan, of Topeka, for William M. Lindsay, lieutenant governor.

Clarence V. Beck, attorney general, Payne H. Ratner, of Parsons, Wilford Riegle, of Emporia, and George Templar, of Arkansas City, for Frank J. Ryan, secretary of state.

Harry Fisher, J. S. Parker, C. V. Beck, all of Topeka, for H. S. Buzick, speaker of the house, and W. T. Bishop, chief clerk.

The opinion of the court was delivered by

ALLEN, J.: This is an original proceeding in mandamus brought by twenty-one members of the state senate and three members of the house of representatives to compel Clarence W. Miller, secretary of the state senate, to erase an endorsement on senate concurrent resolution No. 3 (generally known as the child-labor amendment resolution) to the effect that the same was adopted by the senate, and to compel him to endorse thereon the words "was not passed."

There is no dispute as to the facts. On June 2, 1924, the sixty-eighth congress of the United States proposed the following amendment to the constitution of the United States:

"SECTION 1. The congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

"SECTION 2. The power of the several states is unimpaired by this article except that the operation of state laws shall be suspended to the extent necessary to give effect to legislation enacted by the congress."

On January 13, 1937, a resolution known as "senate concurrent resolution No. 3" was introduced into the state senate. This resolution, after the preamble setting forth the joint resolution of congress in proposing an amendment to the constitution of the United States, commonly known as the child-labor amendment, provided:

"Be it resolved by the senate of the state of Kansas, the house of representatives concurring therein, That the foregoing and above-cited amendment to the constitution of the United States be, and the same is hereby ratified by said legislature of the state of Kansas as a part of, and amendment to, the constitution of the United States."

On February 15, 1937, this resolution came up for consideration in the senate, and upon roll call twenty senators voted against the adoption and twenty senators voted in favor of the adoption of the resolution. Thereupon W. M. Lindsay, the lieutenant governor of the state, the presiding officer, over the protest of one of the senators, cast his vote in favor of the adoption of the resolution.

As stated, this proceeding in mandamus was brought to compel the secretary of the senate to erase the endorsement on the resolution that the same was passed, and to make an endorsement thereon that it had not passed.

An alernative writ was allowed and answers filed by all the defendants except the state of Kansas.

At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that on March 30, 1937, the state senate adopted a resolution directing the attorney general to appear for the state of Kansas in this action. It further appears that on April 3, 1937, on application of the attorney general, an order was entered making the state of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. (G. S. 1935, 75-702; State, ex rel., v. Public Service Comm., 135 Kan. 491, 11 P. 2d 999.)

Plaintiffs contend: First, the amendment was not ratified by the senate because the lieutenant governer was not a member of the senate and had no right to vote and that the resolution did not receive a vote of a majority of the members of the senate and was lost; second, when the legislature, on January 30, 1925, adopted a resolution to reject the amendment and filed notification thereof with the secretary of state, it exhausted its power with reference to the proposed amendment.

Did the lieutenant governor have the right to cast the deciding vote on senate concurrent resolution No. 3 when the senate was equally divided? In the solution of this question we first look to the constitution of the United States. Article 5 of the constitution of the United States provides:

"The congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one

or the other mode of ratification may be proposed by the congress; provided, That no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the senate."

It is settled beyond controversy that the function of a state legislature in ratifying a proposed amendment to the constitution of the United States like the function of congress in proposing an amendment, is a federal function derived from the federal constitution; and it transcends any limitation sought to be imposed by the people of a state. The power to legislate in the enactment of the laws of a state is derived from the people of the state, but the power to ratify a proposed amendment to the federal constitution has its source in that instrument. The act of ratification by the state derives its authority from the federal constitution, to which the state and its people alike have assented. (Leser v. Garnett, 258 U. S. 130, 42 S. Ct. 217, 66 L. Ed. 505; Hawke v. Smith, 253 U. S. 221, 40 S. Ct. 495, 64 L. Ed. 871, 10 A. L. R. 1504; Rhode Island v. Palmer, 253 U. S. 350, 40 S. Ct. 486, 64 L Ed. 946.)

If the legislature, in ratifying a proposed amendment, is performing a federal function, it would seem to follow that ratification is not an act of legislation in the proper sense of that term. It has been so held. In Hawke v. Smith, supra, it was said: "Ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment." (p. 229.)

The function of the legislature being merely to register the assent or approbation of the state to such proposed amendment, in what manner must such assent be manifested? As the legislature of Kansas is a parliamentary body, we must look to the law by which proceedings in that body are governed.

Under section 2 of article 2 of the constitution of Kansas, and G. S. 1935, 4-101, the senate shall consist of forty members, and the house of representatives of one hundred and twenty-five members. (State, ex rel., v. Francis, Treas., 26 Kan. 724.) As it is conceded that senate concurrent resolution No. 3 duly passed the house, our attention must be directed to the action in the senate.

Under the constitution of Kansas (sec. 1, art. 1) the lieutenant governor is a member of the executive department of the state.

Parliamentary action in the senate is governed by two provisions of the constitution. These provisions are:

"The lieutenant governor shall be president of the senate, and shall vote only when the senate is equally divided . . ." (Sec. 12, art. 1.)

"A majority of all the members elected to each house, voting in the affirmative, shall be necessary to pass any bill or joint resolution." (Sec. 13, art. 2.)

It is argued on behalf of the plaintiffs that senate concurrent resolution No. 3 did not receive a vote of a majority of the members of the senate, that the lieutenant governor is not a member of the senate, hence the resolution did not pass. This view finds a conflict in the two sections, and by placing emphasis on section 13 of article 2, virtually expunges section 12 of article 1 from the constitution.

On the other hand, defendants contend that the lieutenant governor is entitled to vote as a member of the senate on the final passage of bills and joint resolutions. As he was not elected as a member of the senate, this theory writes with invisible ink an amendment to section 13 of article 2, and ignores section 1 of article 1, which specifies that the lieutenant governor is a member of the executive department of the state.

It is evident, therefore, that both plaintiffs and defendants in this controversy find an irreconcilable conflict in the two provisions of the state constitution, In 1 Cooley's Constitutional Limitations, 8th ed., p. 128, the rule of construction is stated as follows:

"The rule applicable here is that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.

"This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written

constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. Every provision should be construed, where possible, to give effect to every other provision."

Applying these rules of construction, we think the two provisions of the constitution may be harmonized, hence it is not necessary to make a choice between undesirable alternatives. We think the lieutenant governor had a right to vote on the concurrent resolution, for the simple reason that the vote was not on a bill or joint resolution, that is, it was not on an act of legislation having the force of law. The vote was merely on a measure expressing assent to the proposed amendment. Under section 12 of article 1, the lieutenant governor "shall vote only when the senate is equally divided." He may vote, then, in some cases. When? Obviously in all cases of equal division of the senate, except when his right to vote is expressly denied. By section 13 of article 2, a majority of all members elected to the senate voting in the affirmative, is necessary to pass any bill or joint resolution. The lieutenant governor was not elected to the senate. The constitution gives him the right to vote when the senate is equally divided, but denies this right in two cases-when the equal division is on a bill or a joint resolution.

The fundamental fallacy in the argument presented on behalf of plaintiffs is in the unwarranted assumption that because the lieutenant governor cannot vote on a bill or joint resolution, he is denied the right to vote in all cases. In effect, plaintiffs insist that the legislature in acting on the resolution for ratification of the proposed amendment to the federal constitution was engaged in an act of legislation having the force of law.

Article 5 of the constitution of the United States provides that congress, when two thirds of both houses deem it necessary, shall propose amendments to the constitution which, when ratified by the legislatures of three fourths of the states, shall become a part of the constitution. It is not necessary that such proposed amendment be approved by the president, nor that the act of ratification be approved by the governor of a state. Ratification is not an act of legislation; it is merely an expression of the assent of the state to the proposed amendment.

As stated above, the real question for our determination is how that assent may be manifested by the legislature. The vehicle used by the legislature was a concurrent resolution. While concurrent resolutions are not mentioned in the constitution, the constitution does use the expression "bill or joint resolution.” In legislative practice a distinction is made between "joint resolutions" and "concurrent resolutions." Senate rule No. 48 reads as follows:

"Resolutions shall be of the following classes: (1) senate resolutions, (2) senate concurrent resolutions, and (3) senate joint resolutions. In acting on them, the senate shall observe the following procedure:

"1. Senate resolutions shall be in writing, shall be read and shall lie over one day they shall not be printed unless ordered by the senate. There shall be no roll call unless ordered.

"2. Senate concurrent resolutions shall be in writing, shall be read, and shall lie over one day. All senate concurrent resolutions shall be printed, and shall require a roll call on motion to adopt. Propositions to amend the constitution shall be submitted by concurrent resolutions. to conform to section 1. article 14, of the constitution: Provided, That all concurrent resolutions amending the constitution shall be referred to the proper committee.

"3. Senate joint resolutions shall follow the same procedure as bills, shall be read a first, second and third time, and shall take the regular course of bills on the calendar, and shall when passed on roll calls be signed by the gov ernor."

In Legislative Procedure in Kansas, by Guild and Snider, pp. 77-80, it is said:

"Concurrent resolutions are used to express the will or sentiment of both houses of the legislature, and therefore must be acted upon by both houses. There has been considerable confusion in Kansas and in many other states concerning the distinction between concurrent and joint resolutions, and in Kansas the practice is far from standardized. A study of precedents, however, shows that concurrent resolutions are always used in two classes of cases. The first general group concerns the mere expression of an opinion, or sentiment by the legislature. Resolutions memorializing congress, relating to the death of a public man, or expressing an opinion on any subject in contrast to