The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-03-27
Balie Waggener Reaffirms His
Tax Law Opinion.
Says There Was a Fatal Defect
in Its Passage.
CRITICISES GOVERNOR
He "Trusts That Hoch Has Been
MisQuoted.'
Cites Laws to Uphold His Side
of COnstrOyersy.

To the Editor of the State Journal:
In view of the fact that wide pub
licity 10 the criticisms of SeNator
Smith and Governor Hoch as to a sug-
gestion which 1 made few days ago
relative to the passage of the new tax
law TO the attorney general. in which
he is said to have stated that the sug-
gestion was not serious enough to
give thoughtful consideratoin,' trust
you will extend to me the courtesy,
through your paper, of replying to
these distinguished gentlemen
The suggestion was not made to
provoke discussion, but to challenge
the attention of the attorney general
to a matter which, in view of the dis
astrous consequences that would fol-
low if the law had not been properly
passed, would result in a careful in
Vestigation from the law officer of the
state, instead of a smile, and. from
the chief executive of the state,
dignified consideration of the Sugges-
ton, instead of publishing thoughts
ne had been thinking" on constitution
al questions akin to those he expressed
In criticism of the supreme court,
when it decided the oil refinery appro-
priation unconstitutional.
My communication to the attorney
general was intended to be the ex-
preston of a doubt as to the lawful
most careful examination of the au>
thorities, 1 now entertain no doubt
that it was never lawfully passed, and
that it is not a valid law. nOtwith-
standing Governor HOch says that "all
of the justices concur" in his opinion.
/ do not believe he had any authority
for any such statement. L trust he
has been misquoted. For Senator
Smiths opinion, as lawyer, l enter
tain a very high opinion, and l be-
lieve, upon reflection, he will reverse
himself and concur with me. When
bill passes the senate or house, it Is
usual for the presiding off1cer to say:
'Is the title agreed to? and, If not,
it is then and there corrected. Not SO
with a conference report. When the
conference report is submitted to the
senate, the only question before the
senate is a motion to adopt the report
of the conference committee. 1t must
then be adopted or rejected. In JET
fersOn's Manual it is said: "This re-
port can not be amended or altered
as that of the committee may be-
This rule governs and controls con-
gress, and all legislative bodies.
The conference committee. on the
new tax law. reported to the senate
(Senate Journal page 491) that the
committee had agreed on a title, as
follows: go. Amend title by insert
ing the house title, and adding thereto
the following: And making appro-
priations for the purposes of carrying
out this act When the senate voted
by ''yea and nay vote to adopt this
report. it then and there, by that vote,
agreed on the title. 1t would have
been quite superfluous for the presid-
Smith says: "Is the title agreed
to?" That had already been agreed
to by the conference committee, as dis
closed by its report to the senate and
by the senate fixed when it adopted
that report. This title was an amend
ment agreed upon by the conference
committee, and when the vote was an
nounced the Journal states: "A con-
stitutionAl majority having voted in
favor of concurring in the amend
ments, they were concurred in, and the
report of the conference committee
adopted" This is all plain. clear and
unambiguous. Senate rule No. 80 pro-
vides that: "a vote to adopt the re-
port of a conference committee shall
be considered the final passage of a
bill, and shall be taken by yeas and
nays, and entered on the journal"
This was all done, and the report was
adopted in the most regular and for
mai manner. So far as the senate was
concerned, the bill was then passed.
AS before stated, the title reported by
the conference committee was then
agreed to.
After all had been done,-the report
adopted the bill passed, and the re-
suit announced. as shown by the Jour-
nal-the journal records that "the title
was amended, by unanimous consent,
by inserting, after the word 'equaliza-
tion,' the following: and providing for
penalties for the violation of certain
provisions Now 1 insist that this
action of the senate was wholly un-
authorized by any principle of law or
parliamentary usage. L challenge the
production of a single like instance as
shown by the legislative journals of
Kansas, or any other legislative body.
In JefferSonS Manual it is said this:
After the bill is passed. there can be
no further alteration of it in any
point" When this unanimous con-
sent amendment was entered on the
journal the senate had no control over
the house bill. 1t was not in the
possession of the senate There was
nothing in the possession or control of
the senate but the report of the con-
ference committee. House bill No 50
had been amended by the senate. and.
as amended, sent to the house The
house refused to concur, and called for
a conference. 1t never thereafter got
back to the senate.
will Senator Smith explain by what
authority the senate could amend the
title to a bill which was not in the
possession of the senate but at the
time the attempt was made, the bill
was in the control and possession of
the house? Jefferson's Manual (page
13O says: 1.-The request of a confer
ence must always be by the
house which is possessed of the pa
pers" On February Is. thouse iournal
page $3.50 the house received from the
senate house bill No. SO. as amended
by the senate, and on February 10.
(house journal page 500 nonconcurred
in the senate amendment, and called for
a conference,-and it affirnatively and
conclusively appears that house bill No.
55 was never thereafter in the posses
sion of the senate, and yet it affirma-
lively and concluSively appears from
the senate journal (page 566) that the
Exy 1sr,-n