Craig v. O'Rear

251 S.W. 828, 199 Ky. 553, 1923 Ky. LEXIS 894

• Court: Court of Appeals of Kentucky
• Decided: May 15, 1923
• Status: Published

Opinions

Opinion of the Court by

Judge Clay

Affirming on original and cross appeals.

At the last session of the General Assembly, it passed the following act, now designated as chapter 10 of the Acts of 1922:

“An Act to provide for the establishment of two normal schools for the training of white elementary teachers, and appropriating moneys for the maintenance and operation thereof.

“Whereas, the greatest need- of common schools is trained elementary teachers, and

“Whereas, the state normal schools already established can neither reach nor train all the elementary teachers'needed for the common schools; therefore,

“Be it enacted by the General Assembly of the Commonwealth of Kentucky:

“1. That a commission is hereby created, to be known as the State Normal School Commission, consisting of eight members who are citizens of the state of Kentucky and over the age of twenty-one years, to be appointed as follows: Five by the speaker of the House of Representatives and three by the president of the Senate, which is hereby authorized and empowered to establish two new normal schools for the training of white elementary teachers, one to be located in the western part of the state and one to be located in the eastern part of the state. The said commission is hereby authorized to receive gifts of land, buildings or money for the establishment of these two normal schools for white elementary teachers.

“2. The management and control of these two normal schools, when established, shall be and is hereby vested in the -state Board of Education.

‘ ‘ 3. There is hereby appropriated, out of the general funds, of the state, to each of these two normal schools-, for maintenance and operation, the sum of thirty thousand dollars annually. The auditor of the- Commonwealth is directed to draw his warrants for said sums, above appropriated, upon requisitions signed by the chairman and secretary of the State Board of Education. Provided, that the above appropriation for maintenance and operation shall not become available for said normal schools until the said commission has received for each of said schools gifts, of land suitable to the purposes • of each school, and also gifts of buildings or money, or both, equivalent in value to at least one hundred thousand dollars. Provided, further, that if gifts, and donations are made, sufficient to establish one of said schools, then the sum of thirty thousand dollars shall be available for the maintenance and operation of said school.

“4. All laws and parts of laws in conflict with the provisions of this act are hereby -repealed..

“5. If any section of this act shall be held unconstitutional the remainder of the act shall not be affected thereby.”

Pursuant'to the authority conferred by the act, the speaker of the House of Representatives appointed five members of the commission, and the president of the Senate appointed three members of the commission. The commission organized, and, after several meetings and hearings, selected' Murray -in the western part of the state and Morehead in the eastern part of the state as suitable sites for the proposed schools. Murray conveyed to the commission a -tract of land which it purchased for $16,000.00, and turned over to the commission -the sum of $100,000.00.. It also -appears that Murray, recently erected at a cost of more than $100,000.00 a good school building, well adapted, for a normal school, and that the school authorities have tendered, and the commission has accepted, this building for use until a new building can be erected. Morehead was selected on the condition that it comply with the act by making gifts of land suitable to the purposes: of the school, and also gifts of buildings or money or‘both, equivalent in value to at least $100,000.00, but at' the time this litigation began, the condition had not been complied with.

When the commission. announced the establishment of the schools at Murray and Morehead, several suits involving the validity and construction of the act were filed in the Franklin circuit court, which rendered judgment upholding -the validity of the act, and the right of the commission to establish the schools by erecting and equipping'the building’s, but not the right to select the faculties of the schools. From that judgment this appeal is prosecuted.

The right of courts to declare an act unconstitutional has been settled by a long line of decisions from which there is no dissent, but, as the legislature is a separate and independent department of goverment invested by the Constitution with the power do make laws, the courts have fixed certain rules for their own guidance in order that the power to declare an act invalid may not be exercised too freely. In the first place, the propriety, wisdom and expediency of législation is exclusively a legislative question, and- courts' are not at liberty to declare a statute invalid because, in their judgment,-it may be unnecessary; or opposed to the best interests of the state. McCray v. U. S., 195 U. S. 27, 49 L. Ed. 78. Another rule is that an act will not be declared void on the ground that it is opposed to the spirit supposed to pervade the Constitution, or is against the nature and spirit of the government, or is contrary to the general principles of liberty, or the genius of a free people. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 3 Ann. Cas. 765; Humes v. Mo. Pac. Ry. Co., 82 Mo. 221, 52 Am. Rep. 369; Henley v. State, 98 Tenn. 665, 41 S. W. 352, 1104, 39 L. R. A. 126. A third rule is that courts should always proceed with the greatest possible caution, and should never declare an act invalid until after they resolved every doubt in its favor, and are then able to say that it is plainly repugnant to the Constitution. U. S. v. City of Quincy, 4 Wall. 535, 18 U. S. L. Ed. 403; Nashville v. Cooper, 6 Wall. 247, 18 L. Ed. 851; Wiggins Wire Fence Co. v. Patterson, 166 Ky. 278, 179 S. W. 224.

The act is assailed on the ground that it violated sections 27 and 28 of the Constitution, which separate the government into three departments, legislative, executive and judicial, and provide that the powers, of one shall not he exercised by either of the others. The first objection to the act is that it is an assumption of executive power by the legislature. Sibert v. Garrett, 197 Ky. 17, 246 S. W. 455, is relied on. That case merely held that appointment to office was an executive function which could not be exercised by the legislature itself. The court, however, was careful to point out that the rule was confined solely to the appointment of officers and was. not intended to apply to mere temporary agents. While the purpose of the language employed was to call attention to the exception to the rule, and cannot be regarded as controlling, practically all of the courts hold that mere temporary agents appointed to perform a particular task, who serve without term and without pay, and whose functions cease when the purpose is accomplished, may be appointed by the legislature itself, or in any manner that it may provide, and we have no doubt of the correctness of this. view. McArthur v. Nelson, 81 Ky. 67; David v. Portland Water Committee, 14 Or. 98, 12 Pac. 174; State v. Hocker, 63 A. S. R. 174, and notes on p. 189. But if we go further and assume that the members of the commission'were officers and not agents, clearly the rule announced in the Sibert case has no application. The ruling there was simply that the- legislature itself could not make appointments to office. It was not held that the legislature could not confer the power of appointment. on others. Manifestly, if the legislature can neither appoint nor confer the power of appointment on others, then every inferior officer and employe in the state is serving without right, for all of them hold their offices or positions by virtue of appointments made by persons who derive their authority to appoint from statutes enacted by the legislature. As far as^ we are aware, there is no dissent from the proposition that the legislature may create offices and confer the power of appointment on others, in the absence of a constitutional provision requiring the appointment to be made by a particular person. The reason for the rule is that the legislature does not exercise an executive function -when it confers the power of appointment on some one else. Here, the legislature did not appoint the members of the commission, but authorized the speaker of the House and president of the Senate to make the appointments. Therefore, the legislature did not perform an executive act, but conferred the power of appointment on others who had the right to act in an executive capacity. It follows that whether the members of the commission be regarded as mere temporary agents, or as officers exercising a portion of the sovereignty of the state, the manner of their selection was not repugnant to any provision of the Constitution.

City of Harlan v. Coombs Land Co., 198 Ky. 199, — S. W. — , does not support a contrary view. The question there was whether the council could confer on the mayor power to contract with a competent engineer to supervise certain street improvements. As the charter of the city vested the board of council with the power to elect a city engineer, section 3558, Ky. Stats., it was held that the power thus delegated could not be delegated by the council to the mayor. If there were an express provision of the Constitution conferring upon the legislature the power to appoint all inferior officers and agents, there might be some analogy between the two cases. As a matter of fact, however, the Constitution contains no such provision. Therefore, no question of the delegation of a delegated power is presented. On the contrary, the case is' one where the legislature is given full power to determine by whom the appointment of all inferior officers and agents may be made, section 93; Constitution, subject to the qualification laid down in the Sibert case, that it may not itself make appoint'inents to office.

We may also add in this -connection that the argument that the legislature cannot confer on the speaker and the president of the Senate the power to appoint legislative agents loses all its force when we recall that the members of the commission are not mere legislative agents, but are ■ ministerial agents of the state, clothed with temporary power to act for and on behalf of the state in the execution of one of its laws.

■ It is next insisted that the act is void as a delegationof the functions of the legislature. It must not be overlooked that legislatures are not continuous bodies. As a rule, they aré in session for only a few days each year, or every two years, as is-the case in Kentucky. Of necessity such bodies' cannot undertake' to determine all facts incident to the administration of the laws which they enact. Therefore when we say that the legislature may not -delegate its powers, we mean that it may not delegate the' exercise of its discretion as to what the law shall be, but not that it may not confer discretion in the administration of the law itself. In re Chapman, 166 U. S. 661, 41 L. Ed. 1154. The books are full of cases upholding jüi-e---pewnr~^f-4he--l^slature to confeh"on hoards, bureaus and commissions- the power to eaxfy put the legislative wilLUElius it ha's "been ~held~~that the legislature mayllelegateto the State Board of Forestry the power to fix charges for the inspection of roadside trees'to determine the conditions under which permits for cutting- and trimming them shall he issued;' Chesapeake, &c., Telegraph Co. v. Goldsboro, 125 Md. 666, 94 A. 322; that a commission may be created by the legislature with power to select uniform text books for use in the schools, and to award contracts for furnishing the books selected; Leeper v. State, 103 Tenn. 500, 53 S. W. 962, 48 L. R. A. 167; that the legislature may delegate to a commission power to determine when and where a common carrier shall establish' stations and stop trains; State v. Ogden Rapid Transit Co., 38 Utah 242, 112 P. 120; to require a railroad company to erect a depot, State v. Corvallis, etc., R. Co., 59 Or. 206, 117 P. 980; to classify railroads according to their charter and the gross earnings of each, New Orleans, &c., R. Co. v. State, 110 Miss. 290, 70 S. 355; to determine what improvements or additions to a railroad company’s rolling stock, stations or terminal facilities are reasonable and- expedient, People v. Delaware, etc., Canal Co., 32 App. Div. 120, 52 N. Y. S. 850 (Aff. 165 N. Y. 362, 59 N. E. 138); to require the construction of a -spur track; St. Louis, &c., R. Co. v. State, 94 Ark. 1, 136 S. W. 938; Union Lime Co. v. State R. Comm., 144 Wis. 523, 129 N. W. 605; to determine the number of street railroad tracks to be laid across a bridge; Conn. Co. v. Norwalk, 89 Conn. 528, 94 A. 992; to establish a uniform standard of cars to be used; St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, etc. The legislature may delegate to the racing commission the power to determine what purses shall be offered. Douglas Park Jockey Club v. Talbott, 173 Ky. 685, 191 S. W. 474. Following the same rule, it has often been held that the legislature may authorize a board or commission to select the location for a state institution, or a site for a public building. Thus in State v. Bryan, 50 Fla. 293, 39 S. 929, an act empowering the state board of education and the state board of control, acting in joint session, to determine the place of location of the University of the State of Florida and of the Florida Female College was upheld on the ground that the power conferred was not a delegation. of legislative power. In People v. Dunn, 80 Cal. 211, 22 Pac. 140, 13 A. S. R. 118, an act conferring on certain persons the power to select the site for a public building proposed to be constructed was sustained, the court saying, “The mere act of selecting a site-to be purchased is not a legislative act.”' In Territory, ex rel. Smith, Dist. Atty. v. Scott, 3 Dak. 357, 20 N. W. 401, the court ruled that an actual selection of a suitable location for a seat of government, and the erection of buildings and improvements thereon,' were acts of an administrative character, and that the statute conferring these powers on certain commissioners' was not void as a delegation of legislative power. In Fleckten v. Lamberton, 69 Minn. 187, 72 N. W. 65, it was held that the legislature might create a board of public offi> eers for the purpose of purchasing a site for, and superintending the erection of, a state capitol thereon, and expending the moneys appropriated for that purpose. In Davenport v. Elrod, 20 S. Dak. 567, 107 N. W. 833, an act authorizing the State Capitol Commission to procure the erection of a building, and adopt plans and specifications, was declared not to he unconstitutional as a delegation of legislaitve power. In State v. McGraw, 13 Wash. 311, 43 Pac. 176, an act giving power to the State Capitol Commission to select plans and erect a state capitol on the old site, at a cost not to exceed a million dollars, was held not to be invalid on the ground that it was a delegation of legislative power. These cases sufficiently illustrate the rule, but it is said that the act in question is invalid because it delegated to the commission the power to determine whether or not the two normal schools should be established. The argument is that the statute merely authorized and empowered the members of the commission to establish two new normal schools, without requiring them to act. With this contention we cannot agree. The .title of the act is, “An act to provide for the establishment of two new normal schools for the training of white elementary teachers, and appropriating moneys for the maintenance and operation thereof.” The words, “which is hereby authorized and empowered to establish two new normal schools for the training of white elementary teachers,” are immediately followed by the words, “one to- be located in the western part of the -state, and one to be located in the eastern part of the state.” In section 2 we find the following: “The management and control of these two normal schools, when established, shall be and is hereby vested in the State Board of Education.” Section 3 appropriates $30,000.00 annually for the maintenance and operation of each of the schools, with the provision that “the appropriation shall not become available until it receives for each of said schools gifts of land suitable to the purposes of each school, and also gifts of buildings or money or both, equivalent in value to at least one hundred thousand dollars.” Considering the act in the light of its- title, and the appropriation made for the maintenance of the schools, together with the provisions that one of the schools was to be located in the eastern part of the state and the other in the western part of the state, coupled with the further provision that the schools, when established, should be under the management and control of the State Board of Education, there can be no doubt, we think, that the legislature intended to provide for the establishment of the schools, and not to make their establishment discretionary with the members of the commission. That being true, the only power conferred on the commission was to carry out the legislative will by selecting the sites and providing suitable buildings properly equipped at the expense of the towns furnishing the sites. Clearly, if the legislature could confer on commissions the numerous powers above referred to, .it could confer on the commission in question the power to perform the simple act of establishing the two schools, especially in view of the fact that no expenditure of the state’s money was involved, and even the appropriation for the maintenance of the schools was not available until the commission had complied with the minimum standard fixed by the act; that is, had accepted “for each of said schools gifts of land suitable to the purposes of each school, and also gifts of buildings or money, or both, equivalent in value to at least one hundred thousand dollars.”

But is is said that State v. Bryan, supra, is not in point, for in that case the agency appointed to fix the location of the state university was empowered only to determine the facts according to elaborately prescribed requirements. The precise language of the act with respect to the location of the University of Florida is as follows:

“Sec. 17. In determining the location of the University of the State of Florida created and established by this act, the said boards in joint meeting assembled shall take into consideration the lands', property, buildings and situation of the respective institutions named in and abolished by this act, having regard to the permanent location of such an institution at some central point in this state, both geographically and as to population, as well as to the needs' and requirements, of the same as prescribed in this act and the powers given thereunder, and the funds and means at their command, or which may naturally come to the control of the state board of education for such purposes, and may, if advisable, after careful consideration, appropriate either temporarily or permanently, the location, lands, buildings, property and effects of any one of the said vacated and abolished institutions for such purpose. Said boards being hereby vested with an absolute discretion and power in matter of location and situs of this said institution.”

With, respect to the act under consideration, the requirements are as follows: (1) One of the schools was to be located in the eastern part of the state, and the other in the western part; (2) gifts of land suitable to the purposes of each school; (3) also gifts’ of buildings or money, or both, equivalent in value to at least one hundred- thousand dollars. All that is necessary is a comparison of the two acts to show that the discretion conferred on the Kentucky commission is no broader than that conferred under the Florida act. Indeed, the case before us- is all the stronger, because the Florida act gave to the agency appointed to select the site for the university a wide discretion as to the expenditure of the state’s funds, while the Kentucky act gives to the commission no power whatever to spend a single dollar of the state’s money in the establishment of the two schools. As the legislature passed the law and entrusted its administration to the commission under certain definite restrictions which sufficiently safeguarded the expenditure of the public funds-, the contention that the act is. invalid on the ground that it is a delegation of the lawmaking power cannot be sustained.

Another contention is that the act is so vague, indefinite and incomplete that it cannot be told with reasonable certainty what the legislature intended. In the first place, it is said that the act provides for the location of one of the schools in the eastern part of the state and for the other in the western part of the state, without fixing a dividing line, or providing .any means for its ascertainment. The maxim, “That is certain which may be rendered certain,” applies. Doubtless the legislature felt that even in the present benighted state of education in this Commonwealth, the members of the commission might discover an old map that was not too faded to furnish the desired information. Not only so, but the members of the commission actually located one of the schools in the eastern part of the state and the other in the western part of the state, and it would be verging on the absurd for us to .say that no one could tell with reasonable certainty what was intended by the act, when those charged with its administration found no difficulty whatever in deciding that question. It is further said that the act is indefinite in that it does not fix the tenure of. office of the commissioners, and makes no provision for filling vacancies. Clearly, there was no necessity for fixing a term of office. The commissioners were appointed to accomplish, a particular task, and their functions will cease'when that task is completed. We have never known an act providing for the appointment of either officers or agents to be declared invalid on the ground that it contained no provision for the filling of vacancies. _ The omission of stich provision from the act might present some difficulty in case a vacancy occurred, but would furnish no reason for holding the entire act invalid.

But it is urged with great earnestness that the act is invalid because it confers arbitrary power on the State Board of Education. The language of the act is, “The management and control of these two normal schools, when established, shall be and is hereby vested in the State Board of Education.” The argument is that this • language confers on the State Board of Education the unbridled power to do as it pleases. . From the foundation of our state up to the present time there can scarcely be found a single act providing for the establishment of a board to administer a state institution that does not contain the same language. Similar powers are conferred on the boards of education of every. city in the Commonwealth, and on "the boards of regents of the two normal schools already established. It is true that specific powers are also conferred, but that fact neither adds- to, nor detracts from, the validity of the general grant of power. The State Fair act of 1902 contained the following language: ‘ ‘ That in order to relieve the said State Fair of any political appearance, the same is to be-under the management and control of the Board of Directors of the Kentucky Live Stock Breeders’ Association,” Acts 1902, c. 112, and this act was sustained. Ky. Live Stock Breeders’ Assn. v. Hager, Auditor, 120 Ky. 125, 85 S. W. 738. Afterwards the State Fair act was amended in the year 1906, so as- to read as follows: “The.management and control of this State Fair shall be in the hands of the State Board of Agriculture, Forestry and Immigration, and said board shall determine the time for holding said fair each year.” Chapter 99, section 2, Acts 1906; section 4618b-2, Kentucky Statutes. It will thus be seen that if the act in question is invalid for the reason named, many' other important acts- must fail for the same reason. In view of the seriousness of the question, we must keep our feet on the ground and listen to the voice of common sense. Cases declaring invalid acts conferring on boards certain police powers respecting tbe rights- of citizens, without furnishing any standard for their action, are not in point. The case is simply one where the legislature saw fit to confer on a state agency the very simple power of managing two schools. It is our duty to construe the act so as to uphold its validity if that can be done. What, then, is the power which the legislature intended to confer on the State Board of Education? The answer is, only that power usually exercised by persons having control of similar institutions; in other words, the power to select the faculties and make rules, and regulations for the admission of pupils and the general conduct of the schools, with the implied restriction that these rules and regulations shall not be unreasonable or discriminatory, but shall be such as will carry out in a natural and sensible way the legislative purpose in establishing the schools. When so interpreted, it is apparent that the act does-not confer arbitrary power on the -State Board of Education.

Other matters, are relied on, but we do not deem them of sufficient importance to merit discussion. It is sufficient to say that, after a careful consideration of all the objections, we are constrained to the view that the act is not repugnant to any provision of the Constitution, and is therefore valid.

On the cross-appeal it is insisted that the. power to establish the schools carried with it not only the power to -select the sites and see that proper buildings were erected and equipped, but the power to see that the schools were ready for the reception of pupils, and therefore the power to select the faculties. A case might arise where the word, “establish,” might have the broad meaning contended for, but we do not believe that such was the purpose of the legislature. Since the schools, when established, were to be under the management and control of the State Board of Education, and such control would necessarily include the power to select the faculties of the schools, it is hardly probable that the legislature intended to confer the same power on the commission, and thus embarrass the State Board of Education when it undertook to exercise its unqualified right to decide such matter for itself. We therefore conclude that the act did not authorize -the commission to- select the faculties, of the two schools.

As the judgment conforms to the views herein expressed, it follows that the judgment is correct.

Judgment affirmed both on. the original and cross appeals.

Whole court sitting. Judge Moorman dissenting in separate opinion.