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KENYON v. KANSAS POWER & LIGHT CO.12/10/1993
The opinion of the court was delivered by
Plaintiff, Marty Louis Kenyon, appeals from an adverse jury verdict in this personal injury action, claiming that the trial court's application of the provisions of the Overhead Power Line Accident Prevention Act (OPLA), K.S.A. 66-1701 et seq., constituted reversible error. He contends that OPLA was improperly enacted under Article 2, § 14 of the Kansas Constitution and is, therefore, void.
On November 29, 1990, plaintiff was injured when the metal ladder he was moving at a work site came into contact with an overhead power line. Kenyon filed this action against Kansas Power & Light Company (KP&L), seeking compensation for his injuries. The trial court instructed the jury in accordance with the provisions of OPLA, and the jury returned a verdict assessing zero percent fault against KP&L.
During the 1990 legislative session, the House Appropriations Committee introduced H.B. 3086, "The Overhead Power Line Accident Prevention Act." Section 6 (b) (which is now K.S.A. 66-1706 ) was not included in the version passed by both houses of the Kansas Legislature:
"In a civil action in a court of this state when it is shown by competent evidence that damage to any high voltage overhead line owned or operated by a public utility, a personal injury or other damages occurred as a result of a violation of this act, there shall be a rebuttable presumption that the person violating the provisions of this act was negligent as a result of such violation."
When the enrolled bill was returned by the printer to the legislature, section 6(b) was included. Apparently this went undetected and the enrolled bill, with section 6(b), was signed by the officers of the Senate and the House, sent to Governor Hayden for his signature, and signed by the Governor.
There is no dispute that both houses of the Kansas Legislature passed a version of OPLA that did not contain K.S.A. 66-1706(b). There also is no dispute that the House and Senate officers signed a version of the bill that erroneously contained K.S.A. 66-1706(b).
The governor signed the version of the bill containing K.S.A. 66-1706(b). Thus, the bill that passed both houses of the legislature was not the bill signed by the governor.
The trial court found that K.S.A. 66-1706(b) was invalid but severable, "leaving the remainder of the Act valid, enforceable and applicable." Plaintiff argues that the entire Act is unconstitutional because it was not enacted in accordance with Article 2, § 14 of the Kansas Constitution.
Article 2, § 14 of the Kansas Constitution provides in pertinent part:
"(a) Within ten days after passage, every bill shall be signed by the presiding officers and presented to the governor. If the governor approves a bill, he shall sign it."
According to Article 2, § 13 of the Kansas Constitution, a bill is "passed" when a majority of the members of each house vote in the affirmative in support of the bill. Thus, our Constitution requires that the bill presented to the governor be the bill on which both houses of the legislature agreed. Because the bill signed by Governor Hayden contained section 6(b) and was not the bill passed by the legislature, plaintiff argues that the entire enactment is unconstitutional and void.
Before discussing this contention, we note that the 1993 legislature repealed K.S.A. 66-1701 through 66-1708 and enacted a new bill that includes a version of the previously deleted section 6(b). See L. 1993, ch. 119, § 6. Governor Finney signed H.B. 2410 on April 5, 1993. That statute is not at issue in this case.
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