Pratt v. Breckinridge

65 S.W. 136, 112 Ky. 1, 23 Ky. L. Rptr. 1356, 1901 Ky. LEXIS 286

Opinions

Opinion of the court by

JUDGE GUFFY

Reversing,

Appellee brought suit in the Franklin circuit court against appellant, alleging that they were the candidates for their respective parties and voted for at the general election of November 7, 180!),' for the office of attorney-general; that the State board of,' election commissioners, canvassed the returns of the election, and determined upon, the face of the returns that appellant was elected, and thereupon awarded him a certificate of election, whereupon he qualified and entered upon the discharge of his duties; that appellee gave appellant notice that he would contest the election before the State board of election commissioners, sitting as a contest board, upon various grounds, and did so contest the election before that board, as a result of which the board adjudged that appellee had received the highest number of legal votes cast for the office and was elected thereto, and that appellant was not elected, and thereupon issued to appellee a certificate that he had been elected to the office of attorney general and was-entitled thereto. Copies of the notice of contest, the proceedings of the board thereunder, its judgment, and the certificate delivered to appellee were filed as exhibits with the petition. The prayer was for the possession of the office and for an injunction restraining- appellant from interfering with appellee in the discharge of the- duties thereof, and from claiming to have title thereto. In various regards and upon various grounds appellant, by answer and counterclaim called in question the validity of the election law of 1898, under which the State 'board of election commissioners was organized and had acted, and also the validity of the action of the board in the trial and decision of the contest. The prayer of the answer and counterclaim was that appellee should 'be adjudged to have no title- to the office, that appellant should be adjudged entitled thereto, and that appellee should be restrained from attempting to exercise the duties thereof. A demurrer filed to the petition was overruled, but was carried forward to the answer, sustained, and a judgment rendered in accordance with the prayer of the petition.

“An aot to further regulate elections,” adopted by the Legislature on March 11, 1898 (Act 1898, p. 43), over objections by the governor, under which act the State board of ■election commissioners was organized, is inherently vicious, because an invasion by the Legislature of the powers of the executive. The provisions embodied in sections 27 and 28 of the Constitution, and which, in substantially the same words, have been embraced in every Constitution of the -State, were drawn by Mr. Jefferson as an improvement upon the provision of the federal Constitution, designed by him to insure a more perfect separation of the powers of the three great departments of government than was secured by that instrument, and their adoption by the convention was accomplished by the power of his name:

“Sec. 27. The powers of the Government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a sep ■arate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.,

“Sec. 28. No person or collection of. persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

The Constitution of the United States contains a similar division of .powers, but without the inhibition against one department exercising powers which properly belong to another.

There is no pretext that the offices created by the act in question are legislative agencies. They are offices coming fully within the test defined by Chief Justice Lewis in City of Louisville v. Wilson, 99 Ky., 598, 18 R., 427, 86 S. W., 944: “There are various tests by which to determine who are the officers in the meaning of the law, but at last, in case of uncertainty, the intention of the lawmakers controls. To constitute an officer, it does not seem to be material whether his term be for a period, fixed by lalw, or endure at the will of the creating power; but if an individual be investédl with some portion of the functions of the Government, to be exercised for the benefit of the public, he is a public officer.”. The'power of appointment to office was, in an opinion by Chief Justice Robertson delivered in 1830, in Taylor v. Commonwealth, 8 J. J. Marsh., 401, held to be “intrinsically executive.” Said the court in that case: “And, although the Constitution has confided to the courts' the appointment of their own clerks, still the nature of the power is not changed. It is essentially executive; whensoever or by whomsoever it may be exercised. It is as much executive when exercised by the court as by the governor. It is the prerogative of appointing to office, and is of the same nature, whether it belonged to the court or to the governor.” The Constitution in force at that time authorized the court to appoint its own clerk. So, in Justices v. Harcourt, 4 B. Mon., 500, it was said in an opinion by Chief Justice Ewing: “But this power is an executive, and not a judicial power. It appertains to and is exercised in aid of the .appointing power, which is executive and not judicial.” This doctrine was approved in an opinion by Judge Marshall in Gorham v. Luckett, 6 B. Mon., 159, and again in Applegate v. Applegate, 4 Metc., 237. This doctrine has been quoted and • followed by rnainy courts of last resort. Until the legislation of 1898 was under consideration, it seems never to have- been disapproved in this State, and then -the cases in which it had been adjudged were not mentioned. By section 29 of the r 'Constitution, the “legislative power” is vested in a house of representatives and a senate, together styled the “General Assembly.” The Legislature, being by this grant vested with all legislative power, may do everything' that can properly be done by the enactment of a law, and in addition thereto may do everything that by the Constitution it is expressly directed or permitted to do. Each house may perform the executive act of electing its own officers (sections 34 and 249), and the judicial acts of judging of the qualifications, elections, and returns of its members (section 38) punishing disorderly behavior and expelling members (section 39). The framers of the Constitution having deemed it necessary, to expressly' permit the Legislature to exercise the executive power of appointment in (specified cases, this ^permission, by implication, forbids the Legislature to exercise such power in any other case. The creation of an office is accomplished by the exercise of legislative powmr. It is done by the enactment of a law. The filling of it, when not exercised by the people, or in some manner 'directed or permitted by the Constitution, is executive, and must be performed by an executive officer. The Congress of the United States, deriving its authority from a Constitution which does not contain the inhibition of section 28 of the Kentucky Constitution, has never passed an act which created an office, and at the same time filled it. Only once has it attempted to do so. It is not denied that the legislative department can appoint or elect an officer when the duties of the office appertain to that department. And in this is found whatever justification exists for the Legislature’s election of the State librarian, — an office which, without-any violent «stretch of construction, may be considered as appertaining to the legislative department. But, while the three commissioners provided for in this act are both executive and judicial officers, they are not in any sense legislative. They perform executive functions in appointing to and removing from office and in canvassing the returns, and judicial functions in deciding contests. But they perform no functions connected with the Legislature. The Legislature has no more power to elect or appoint such officers than it has to enact a law ’providing the judgment to be entered in a pending litigation.

In State v. Kennon, 7 Ohio St., 547, it was said: “The official or unofficial character of the officers is to be determined ... by the nature of the functions devolving upon them. ... To prescribe the manner of election or appointment to office is an ordinary legislative- function. To make an appointment is an administrative function.” 'The Ohio Constitution forbids the exercise of the appointing power by the Legislature, but the court is here discussing the nature of the function. In Langenberg v. Decker, 131 Ind., 478, 31 N. E., 193, 16 L. R. A., 112 — and the Indiana Constitution contains a provision like ours,— it was said: “The powers of these departments are not merely equal. They are exclusive in respect to the duties assigned to each, and they are absolutely independent of each other. The encroachment of one upon the other is watched with jealous care, and is generally promptly resisted, fo.r the observance of this division is essential to the maintenance of a republican form of government. . .

. It can not be contended that the State board of tax commissioners belongs to the legislative department. . . . It can not be successfully maintained that the Legislature could confer upon the governor and principal officers of the State duties pertaining to the judicial department. As the State board of tax commissioners is neither a legislative body nor a court, it must belong to the executive and administrative department. That it does -belong to that department, we think, is too plain for argument. It is charged with executing certain provisions of the revenue law, and when it has performed that duty its function is ended.” In City of Evansville v. State, 118 Ind., 426, 21 N. E., 267, 4 L. R. A., 93, the court said: “The power to appoint to office is an executive function, and, while the Legislature may provide by law for the appointment of all officers n,ot provided for in the Constitution, the appointing power must be lodged somewhere within the executive department of- the Government.” And see State v. Denny, 118 Ind., 382, 21 N. E., 252, 4 L. R. A., 79; City of Evansville v. State, 118 Ind., 426, 21 N. E., 267, 4 L. R. A., 93; State v. Denny, 118 Ind., 449, 21 N. E., 274, 4 L. R. A., 85; and State v. Hyde, 121 Ind., 20, 22 N. E., 644. In the case of supervisors of election, 114 Mass., 251, 19 Am. Rep., 344, the Legislature had conferred upon the supreme court the power of appointment of supervisors, and that court held the act unconstitutional, and refused to exercise the power, saying: “These supervisors, although intrusted with certain discretion in the performance of their duties, are strictly executive officers. . . . Their duties relate to no judicial suit or proceeding, buit solely to the exercise by the citizens of political rights and privileges. We are unanimously of opinion that the power of appointing such officers can not be conferred upon the justices of this court without violating the Constitution of this Commonwealth. We can not exercise this power as judges, because it is not a judicial function.” In Jones’ Heirs v. Perry, 10 Yerg., 59, (30 Am. Dec., 430), the court said: “The whole judicial power of the State being expressly invested in the courts by the Constitution, the exercise of it by the Legislature transcends the power intrusted to it by the Constitution, and can not be legally carried into effect.” In re McLean (D. C.) 37 Fed. 648. under the federal Constitutio, which contains no such inhibition as that contained in our organic law, it .was held that the pension bureau was not a court, and no officer thereof could be invested with judicial functions; that Congress, therefore, could not authorize the attendance of a witness before a pension examiner, to be compelled by the distrot court. So, in Kilbourn v. Thompson, 103 U. S., 168, 26 L. Ed., 377, it was held that Congress could not punish as for contempt a witness who refused to testify (concerning transactions of persons whose conduct was then under investigation by a judicial tribunal, because that was an encroachment upon the judicial department. In Field v. Clark, 143 U. S., 692 (12 Sup. Ct., 504, 36 L. Ed., 310), it was said: “Congress can not, under the Constitution, delegate its legislative power to the president.” In Cooley, Const. Lim., p. 104, it is said, speaking of the legislative department: “But the apportionment to this department of legislative powers does not sanction the exercise of executive or judicial functions, except in those cases warranted by parliamentary usage, where they are identical, necessary, or proper to the exercise of legislative authority, or where the Constitution itself, in (specified cases, may expressly permit it.” And on page 108 he says: “The legislative power we understand to be the authority under the Constitution to make the laws, and to alter and repeal them,” — and quotes from Justice Marshall: “The difference between the departments undoubtedly is that the legislative makes, the executive executes, and the judiciary construes the law.”

There are, it is true, cases in other States in which a different view is taken of this question. In many of them the question presented may readily be distinguished from that presented for decision by this court. For example, the Maryland case (Mayor, etc., of City of Baltimore v. State, 15 Md., 376) (74 Am. Dec., 572) arose under a constitutional provision which provided merely that “the legislative and executive and judicial powers of government ought to be forever separate (and distinct from each other,” ■ — a provision containing no express inhibition, but merely a declaration as to what was proper. And in Oregon, in the case of Biggs v. McBride, 17 Or., 640 (21 Pac., 878, 5 L. R. A., 115),-the decisions of the court are directly contrary to the view expressed by Chief Justice Robertson,— that the power of appointment to office is “intrinsically executive.” But in this State it may be asserted that until 1898 the trend of judicial opinion has, wherever the question has arisen, been uniform. So, also, has the spirit of each successive change in the organic law of the Com snonwealth been in the direction of more strictly limiting the legislative power. In fact the changes in the organic ■law'would lead to the conclusion that there existed in the minds of the people a deep-seated distrust of legislative methods, and a fear of legislative usurpation of power. Section 59 of the present Constitution, as to local and special legislation, is an illustration of this. In that section 28 subjects are enumerated in regard to which lb cal or special acts are forbidden to be passed by the General Assembly, and in the twenty-ninth clause it is provided: “In all other cases where a general law can be made applicable, nó special law shall be enacted.”

To show the tendency and policy of the Kentucky court upon this subject, the case of City of Louisville v. Cochran, 82 Ky., 15 (5 R., 833), may be cited. There the General Assembly had passed an act with relation to back taxes in the city of Louisville, which prescribed the form of the petition to recover them; that only certain defenses should be allowed by the court; that all the affirmative allegations of the answer should be held controverted; and the tax bills be 'evidence of every fact necessary to entitle the city to recover. The act was held to be unconstitutional and void. The opinion, by Chief Justice Hargis, admitted that the Legislature might by law make the production of certain documents prima facie evidence of certain facts, but held that it could not dispense with allegations of essential facts necessary, to the statement of the cause of action, or exclude a defendant “from showing the truth by a mere legislative declaration to that effect.” And the court continued, quoting from Mr. Webster: “If such results as this act seeks to accomplish could be reached by the methods it prescribes, it would tend directly to establish the union of all powers in the Legislature. There would be no general, permanent law for tlie courts to administer, or men to live under. The administration of justice would be an empty form and an idle ceremony. Judges would sit to execute legislative judgments and decrees, not to-declare the law or administer the justice of the country.”' In Johnson v. Ferrell (8 R., 216), 1 S. W., 541,. the Cochran case was approved of and followed in an opinion by Chief Justice Pryor. In Slaughter v. City of Louisville, 89 Ky., 123 (12 R., 61)-(8 S. W., 920), this court, in an opinion by Judge Bennett, recognizing the binding force of the constitutional provision, interfered to prevent an encroachment by the Legislature upon the power of the executive. In that case the inquiry was, “(''an the Legislature, in order to authorize the collection of ad valorem taxes, .fix the valuation upon the property to be assessed?” Said the court: “It seems to be well settled that the Legislature, as the lawmaking department of the State government, has no constitutional power to fix the valuation of property which is to be taxed upon ad valorem principles. The reason for this rule is that the legislative department has no judicial,, executive, or ministerial powers, and, as the valuation in this State belongs to the ministerial powers of the Government, it follows that the Legislature has no constitutional power to make the valuation. . . . The Legislature,, having no judicial, executive, or ministerial power, can not make the valuation; but the valuation must be made by some person authorized to exercise in this State ministerial power, and such person is the assessor,” — citing People v. Hastings, 29 Cal., 452, and People v. San Francisco Sav. Union, 31 Cal., 138. And in Morgan v. Vance, 4 Bush, 323, it was held that the Legislature could not by statute remove the disabilities incurred by dueling, that power belonging to the executive.

An apparent exception to tlie rule is found in the case of the county courts. That arose and is justified in this way: Prior to 1792, when Kentucky formed a part of the territory of Virginia, the county courts of that State were; not only courts of justice but were clothed with executive and fiscal duties,. and, from the time Kentucky became a State) had continued to exercise those powers and perform those duties. And so, in Pennington v. Woolfolk, 79 Ky., 13, (3 R., 42), Chief Justice Cofer concluded, from this unbroken practice of nearly 80 years, uniformly acquiesced in by ail the departments of the government, during which period the Constitution had been twice amended and re-adopted, that “the convention must be presumed to have been well acquainted with the fact that these non-judicial powers had been conferred by various acts, -and were being exercised by the county courts, and the re-ad'option of thei first article in the very words of the former Constitution was a virtual recognition of the validity of the statutes by which these powers had been from time to time conferred,” and that “the county court must be regarded, as respects a number of matters, local and exceptional in their nature, as excepted out of these provisions of the (Constitution.” The present Constitution legitimizes this exception and confers upon the county courts administrative functions. Sections 141, 144. But this court has never, until 1898, overlooked an encroachment by the Legislature upon the functions of either of the executive.or judicial departments.

Says Mr. Cooley (Const. Lim., p. 105): “Every positive 'direction in the Constitution contains an implication against anything contrary to it which would frustrate or disappoint the .purpose of the provision.” And again (page 178): “When the Constitution defines the circum stances under which a right may be exercised, . . . the specification is> an implied prohibition against legislative interference to add to the condition.” Now, by section 153 it is declared that, “except as otherwise' herein expressly provided, the General Assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections,” etc. It seems clear that, in a grant of power to provide for the manner of voting, the framers of the Constitution, and the citizens whose votes gave that instrument'vigor as organic law could not have dreamed that they were conferring on the Legislature itself the power of electing to office. The grant of this poiver directly implies a negation of the power of the legislators tliemsives to do the voting, itlie manner of which they are authorized to provide for. But, if the Constitution did so authorize them, is it -pretended that they have followed the behest of the general law providing for the manner of voting by the -secret -or Australian ballot? And the contention that election by the Legislature is impliedly prohibited is strengthened when we examine section 152, providing for vacancies in elective offices arising during a term. In all cases the office is to be filled by appointment, but the term for which the -appointment may be made varies according to the length of time to elapse before the next annual election: referring, clearly, to the -election at which under section 153, the General.Assembly has the power to provide by general law for the manner of voting, etc. The General Assembly, wherever named in the Constitution, is either authorized or 'directed to “provide by law” (sections 130, 117), to make “provision by law” (section 185), or to “provide by appropriate legislation” (section 183), for the purposes authorized by the Con stitution, or it is forbidden to pass an act as to some designated subject (sections 50, 60), or its power is limited as. to certain matters, such as laying out of new counties, removing of county seats (sections 03, 64), and as to the exercise of various other functions uniformly recognized as parts of the legislative power. From this it seems clear' that the makers of the Constitution intended the Legislature to discuss and' enact laws, and to do nothing else. If' the Legislature may provide for the election by itself of these officers, it undoubtedly may, under section 107, which authorizes it to “provide for the election or appointment for a term not exceeding four y'ears of such other county officers, or district, ministerial and executive officers, as may from time to time be necessary’,” elect all of the 350 county commissioners provided for in this law, and every other appointive officer in the Commonwealth. “The exercise of .such power would,” as said by the governor in his veto message, “destroy the very object for which the legislative department was created.”

It is not to be .supposed for a moment that, in vesting-the General Assembly with legislative power, it was imagined by the convention or the people that that body, by the-mere passage of a so-called act conferring upon itself powers which properly belonged to the other departments, could usurp their functions. If it can do so, then we do not live-under a constitutional Government, but the General Assembly, like the British parliament, is supreme. It wais held, in the George case (20 R., 938), (47 S. W., 779), approved in Purnell v. Mann, 105 Ky., 87 (20 R., 1146),. (48 S. W., 407), that the Legislature, unless inhibited by the Constitution (and those opinions hold that there is no inhibition), may exercise its power in any one of three modes: It may by statute- create an office* and name persons wlio are to fill it. It may by law create an office, and provide that it shall be filled by election or appointment by the Legislature in joint convention assembled, or by appointment by any person or body of persons. If the first'proposition — which is, of course, mere dictum — - be true, then the twenty-ninth clause of section 59 (“in all other .cases where a general law oan be made applicable, no special law shall be enacted”) is a nullity; for the General Assembly could have provided that the three commissioners should, from and after a named date, be commissioners of election, which undoubtedly would have been a special law' in a case where a general law could have been made applicable. Moreover, this dictum is in direct conflict with the case of Clarke v. Rogers, 81 Ky., 44 (4 R., 929), in which, in an opinion by Judge Pryor, it was held that the Legislature could not, without a local vote upon the question, when changing a town government by trustees into a city, continue the old trustees as councilmen under the new charter. Said Judge Pryor in that case: “Under our elective system, by reason of the provision of the Constitution in regard to the election of officers far town and cities, and other .provisions of that instrument relating to State and county officers, the Legislature has no .power to appoint to office or to continue in office such officers as by the provisions of the Constitution are made elective; and the attempt to exercise such a power by legislative enactment is in plain violation of its provisions. Section 10 of article 68 of the Constitution provides that ‘the General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district, ministerial and executive officers as shall from time ta time be necessary and proper.' But the officers required to be elected by the Constitution can not be appointed! to or con tinued in office by legislative enactment, without consulting the popular will.” This opinion clearly holds that, even under the third Constitution of this Commonwealth — far more loosely drawn in regard to restrictions upon the power óf the Legislature than the present Constitution — ■ the Legislature, under grant of power to provide for the election or appointment of an officer, could not itself elect or appoint to the office; and this by virtue of a provision which is copied in section 107 of the present Constitution.

This act is also vicious in the provision that vacancies may be filled by the remaining members or member of the board. Under section 152 of the Constitution, how are vacancies in such offices to be filled? The act is claimed to be in compliance with section 153, in that it provides that the Legislature shall elect the commissioners. The act provides that vacancies “shall be filled by appointment by the remaining member or members of said board,” but section 152 provides that “vacancies in all the offices for the State at large, or for districts larger than a county, .shall be filled by appointment of the governor.” Surely this provision of the law is unconstitutional, as the commissioners are ufidoubtedly officers for the State at large. The Constitution must control, and the governor’s appointee must hold, not until the next session of the Legislature, but, according to the explicit terms of section 152, until the next general election. And, further, by section 118 it is provided that “not more than one election each year shall be held in this State, or in any city, town, district or county therein except as otherwise provided in this Constitution.” As the Legislature can not be in session at the time fixed for the annual election, unless by special call of the governor, how can the Legislature, under tliis section of the Constitution, exercise the power which it lias usurped? The answer is that the Constitution did not contemplate that any officers,, except those specially provided for, 'should be elected by the Legislature. Section 76 provides that the governor' “shall have the power, except as otherwise provided in this Constitution, to fill vacancies,” etc. Nowhere, except in section 152, is it “otherwise provided” how vacancies shall-be filled. That section was intended to cover the whole ground, and, as it provides that such appointments, shall remain in force until the next general election, negatives the idea of an election by the Legislature. The federal Constitution, which gives to the Legislature of the-State the .power to elect a United States senator, and provides for appointment by the governor to fill vacancies occurring during the recess of that body, provides for “'temporary appointments until the next meeting of the Legislature.” Such an appointment (until the next meeting of the Legislature) of a State officer is not permitted under our Constitution to the governor, who alone has power to fill a vacancy in a State office.

The cases of Purnell v. Mann (165 Ky., 87), (20 R., 1146), (48 S. W., 407); Poyntz v. Shackelford, 107 Ky., 546, 107 Ky., 546 (21 R., 1323), 54 S. W., 855), and Sweeney v. Coulter, 109 Ky., 295 (22 R., 885), (57 S. W., 254, 470), are overruled.

It may be conceded, however, that the'Legislature had the power, and exercised it, to create a board of election commissioners, and that this board was filled, and the persons who filled it assumed to act, did act, and were recognized, as commissioners. Therefore, as legal offices existed, and .persons were recognized as officers, they were, de facto officers, and their acts were valid as to the public and third persons, if legally appointed officers could legal ly have performed such acts. Whether this board of da facto commissioners exercised powers forbidden by the Constitution, or beyond their constitutional and legal jurisdiction, remains to be considered. Considering that the creation of a ministerial board of election commissioners, with power to act as a board of canvassers, was within the legislative power, was it a violation of sections 27 and 28 of the Constitution to clothe such officers with the judicial power to determine a contested election? It may.be assumed that the determination of an election contest is, in its essence, judicial. Such a contest is a litigation over a right. The decision of a litigation over a right claimed by one party and denied by another is a judgment. On the other hand, for half a century boards for the trial of contested elections have existed, and exercised the powers conferred by the Legislature, without objection upon the ground now urgied, although under the statute it was possible at all times that a-ministerial officer might be included in the membership of the board, and in many instances was so included. This, it is insisted, indicates a contemporaneous construction by the public and all the departments of government that the judicial function of. determining an election contest may be exercised by a ministerial officer, and such exercise is a tacit exception, like the ministerial powers of the county court, to the general division of the powers of government provided for in the sections named. There is so much force in this argument that we should hesitate to declare the statute unconstitutional on the sole ground that it is violative of sections 27 and 28, which divide the powers of government, and have been continued in all the Constitutions. But the present ^Constitution contains an entirely new provision, taking from the Legislature all power to create any court'in addi tion to those established by the Constitution. Was the grant by the statute to the board of election commissioners, of power to try contested elections a violation of sections 109 and 135 of the Constitution, as being the creation of a court other than those established by the Constitution? This presents a new question, which could arise only under the new Constitution. In all the previous Constitutions, there is to be found a provision which directly authorized, judicial power to be conferred upon such inferior courts as the Legislature might from time to time establish. But. the .present Constitution not only does not permit the creation of such tribunals, but absolutely forbids it. Section 109 provides: “The judicial power of the Commonwealth, •both as to matters of law and equity, shall be vested in the Senate when sitting as a court of impeachment, and one supreme court (to be styled the court of appeals) ,and. the courts established by this Constitution.” And, again, section 135 provides: “No courts, save those provided for in this Constitution, shall be established.” A board to try election contests is a court. The word “contest,” in constitutions and statutes, is a word of art. It has a distinct, defined meaning. It is a litigation. It implies a plaintiff and a defendant, and a thing in controversy. When it is decided, it is, or should be, decided upon evidence, and the decision is a judgment. Whatever the body may be called which decides an election contest, — whether “board” or “tribunal,” — it is, in all its elements, a court. If, therefore, such a court can be created, authority for its creation must be found elsewhere in the Constitution. 'Such authority is claimed to be given by section 153: ' “Except as otherwise herein expressly provided, the General Assembly shall have the power to provide by general law for the manner of voting, for ascertaining the result of elections and making' due returns thereof, for issuing certificates or commissions to all persons entitled thereto, and for the trial of contested elections.” The argument, broadly stated, is that the -exception at the beginning of the section applies to each of the grants of power contained therein, but that, as applied to the grant of power to provide by general laws for the trial of contested elections, it is satisfied 'by a reference to the provision for the trial of contested elections for governor and lieutenant governor by the Legislature itself, and that but for this exception it is an unlimited grant of power. If this be so, and the power to determine the contested elections is only quasi judicial, or not so judicial as to prevent its exercise by members of the two other bodies of magistracy, then it follows that the Legislature might itself, under the Constitution, try and determine every contested election which might arise. Nor would the exclusion drawn by implication from the specific-grant to the Legislature of power to try election contests over the offices of governor and lieutenant governor avail against so sweeping a grant of power as this section is claimed to contain.

It is claimed broadly that section 153 is a grant -of plenary power as to elections, and that under it, the provision that elections shall be free and equal and the principle of local self-government may be absolutely disregarded. It is a matter of history that the object which, above all others, was sought to be attained by the adoption of the new Constitution, was the placing "of a check upon the power of the legislative branch. No one can compare that instrument with its predecessors without being struck by the almost countless restraints which are placed upon-that power, and the safeguards provided against legislative usurpation. This central idea gives color and tone to the entire organic law. What was intended by the provisions as to the creation of other courts than those provided for by the instrument itself? Concede that ministerial election officers had, without question, from the beginning of the government of Kentucky, been permitted to exercise functions at least quasi judicial. Concede, too, that the successive readoption in the various Constitutions of the identical language used in providing for the division of the powers of government was a tacit recognition that such exercise was excepted from the operatioh of that provision. We may even disregard the omission from section 109, providing in what courts .judicial power shall be vested, of the provision for “such inferior courts -as the Leg. islature may from time to time ordain and establish.” There still remains the provision in section 135: “No courts, save those provided for in this Constitution, ishall be established.” To what did this apply ? In terms, it applied to •everything which answered the description of a court. It applied to the superior court; to the various courts of common pleas and criminal courts that had been theretofore from time to time established. And it applied to election tribunals. They were courts. They sat as courts. They were addressed as courts. Lawyers and litigants so regarded them. They presided upon the trial of causes. They rendered judgments determining the rights of parties, and from those judgments appeals were taken to superior courts. They were in the main, and except in ease of disability, constituted of judicial officers. The people by whose overwhelming vote this instrument became organic law, and by whose common understanding these provisions are to be interpreted, understood them to be, and treated them .as, courts. When that instrument was before the people for adoption, there was debate and discussion over its provisions in tlie press and on the stump. We may consider in. construing it (for it is a matter of history) that at every meeting its advocates proclaimed it ,as a remedy for overlegislation, as a check upon the abuse of legislative power. It is, not to be supposed that every citizen who voted for its adoption had read it, or was familiar with all its provisions; but we know that those who voted for it did so in the belief, everywhere proclaimed, that it would stop abuse of legislative power. It was attacked fiercely and bitterly by a large number of the leading newspapers of the (State. Practically the whole membership of the convention went upon the platform in its defense, and, ■while they differed in their estimates of its advantages, the burden of each argument was .still that it was a shield' to the citizen against legislative usurpation, encroachment, and abuse. It is not believable that the men -who under •such circumstances voted for the adoption of the instrument thought for a moment that they were clothing the Legislature with a power so enoi’mous and so tyrannous as is •claimed to be conceded in section 158. Construe the two sections together, as it is claimed should be done, apply to them the test of reasón or of grammar, and ascertain which of them forms an exception to the povrers granted •by the other. The claim is that, read together, the sections mean, “No court, save those provided for in this Constitution, shall be established, except that the Legislature has plenary power to provide courts for a trial of election contests.” The sections do not so read. The language is, “The General Assembly shall have power to provide by a general law for a trial of contested elections, except as herein expressly provided, to-wit: no courts, save those provided for in this Constitution, shall be established.”

When we consider the radical - changes made by the new Constitution and the laws enacted thereunder, and the necessarily imperfect presentation of the new questions arising under them, it need excite no -surprise that the court finds it necessary to sometimes change its rulings in arriving at a correct conclusion. We refer to two instances only: The Bank Tax cases were argued at length and decided in 1895. The contention of the banks was sustained by a bare majority of the court. That decision was overruled in 1897 by a bare majority of the court, although three new members had been added to the court. Doubtless bank stock and other trades had been made during the two years in reliance upon the first decision being adhered to as the law-, but that was not deemed a sufficient reason for adhering to an erroneous decision. In Belknap v. City of Louisville 99 Ky., 474 (18 R., 313), 36 S. W., 1118, this court held that, under section 157, it required two-thirds of all the voters voting at an election, to vote for the bond proposition submitted, in order to authorize the issue thereof, and that two-thirds of those voting- on the question were not sufficient. In the case of Montgomery County Fiscal Court v. Trimble, 104 Ky., 629, 20 R., 827, 17 S. W., 773, 12 L. R. A., 738, this court decided exactly the contrary, — five to two, — overruling the Belknap case and two other cases; and that, too, notwithstanding the fact that the vote had been taken in Montgomery county while the opinion in the Belknap case was in full force. It would seem that the attempt to confer the power, of contest -on the commissioners is in violation of section 2, subd. 2, of the Constitution, which provides 1hat “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

The answer in this case calls attention to some- fact-si . which tend strongly to illustrate the arbitrary features of the law: There is no provision by which the parties can escape a trial before the commissioners, even if, as charged in the answer, the members have made up and expressed their opinions; and it appears that one of the commissioners, as a member of the canvassing' board, refused to sign appellant’s certificate, and published in the press his opinion that appellee should have received the certificate. This same commissioner filled the vacancy made by resignation, and one of those appointed had, through the press, expressed the opinion that appellant ■ought not to have the office; and yet, under the law, it is claimed that these men must remain on the board, — in fact, the commissioners might try the case, although on the one side might be a near and' dear friend or relative, and on the other a bitter and despised enemy. What could be more arbitrary than a statute authorizing such a proceeding?

The judgment or decision of the board of contest was null and void, and conferred no right upon appellee, and could not affect appellant’s right and title to the office in contest, and the court below erred in rendering the judgment appealed from.

For the reasons indicated, the judgment of the court below is reversed, and the cause remanded, with directions to the court below to sustain the demurrer of appellant to appellee’s petition, to overrule appellee’s demurrer to appellant’s answer as amended, and for further proceedings consistent with this opinion.