Rhodes v. Harder

212 Kan. 500 (1973)

512 P.2d 354

IVAN E. RHODES, et al., Appellees, v. ROBERT C. HARDER, State Director of Social Welfare, et al., Appellants.

No. 46,696

Supreme Court of Kansas.

Opinion filed July 14, 1973.

OPINION ON MOTION TO MODIFY DECISION

Opinion of the court was delivered by

FATZER, C.J.:

The appellant has moved this court for an order modifying the supreme court's decision of April 7, 1973, affirming the judgment of the district court that the provisions of K.A.R. 30-5-29 and administrative action taken thereto was beyond the authority conferred to the State Board of Social Welfare by K.S.A. 1969 Supp. 39-708 (x). The motion to modify filed by the appellants sought to clarify the decision as it relates to subsection (3) of the 4th paragraph of the syllabus and the corresponding portion of the opinion relating to the rule of law set out in subsection (3) of paragraph 4 of the syllabus.

Upon subsequent review of the opinion, it has become apparent that K.S.A. 1972 Supp. 39-708 (x) has a counterpart, a statute substantively duplicate in form to that section which has been designated K.S.A. 1972 Supp. 39-708b (x). K.S.A. 1972 Supp. 39-708b originated as House Bill 1624 in the 1971 legislative session *501 and contained a repealing clause directing the repeal of K.S.A. 1970 Supp. 39-708. H.B. 1624 was not acted upon by the 1971 Legislature but was held over to the 1972 legislative session. Both the Senate and the House of Representatives approved H.B. 1624 in the 1972 legislative session and the same was signed by the governor on March 14, 1972. At no time during the 1972 session was subsection (x) reprinted or altered from the version in K.S.A. 1970 Supp. 39-708 (x) by the House or Senate. (Ch. 168, 1972 Session Laws.)

Likewise, as set forth in Chapter 153 of the 1971 Session Laws, K.S.A. 1970 Supp. 39-708 had in fact been amended by the 1971 Legislature. The 1971 session had changed the standard of payment to medical vendors in K.S.A. 1970 Supp. 39-708 (x) from "their reasonable, usual and customary charges" to a standard of "reasonable charges." In changing the standard, the 1971 Legislature repealed K.S.A. 1970 Supp. 39-708, and the effect of the passage of Ch. 168, 1972 Session Laws (H.B. 1624, K.S.A. 1972 Supp. 79-708b) was to repeal K.S.A. 1970 Supp. 39-708 which had been repealed at the previous session by Chapter 153, 1971 Session Laws. Chapter 153, 1971 Session laws is now reported as K.S.A. 1972 Supp. 39-708.

Upon consideration of the foregoing facts which were not before this court when the case was argued, the supreme court orders that the portion of the opinion filed April 7, 1973, beginning at page 18 with the paragraph "In passing, we note that K.S.A. 1969 Supp. 39-708 was amended ..." through and including the paragraph commencing "In light of the subsequent legislative action ..." on page 19 be withdrawn, and the original opinion is hereby modified by deleting that portion thereof. In addition, the language of subsection (3) of syllabus paragraph 4 is hereby modified to read:

"(3) holding K.A.R. 30-5-29 and administrative action taken thereunder was beyond the authority conferred to the State Board of Social Welfare by K.S.A. 1969, Supp. 39-708 (x) and therefore void."

The opinion of this court on April 7, 1973, is hereby reaffirmed in all other respects.

It is so ordered.