Preston v. Clements

232 S.W.2d 85, 313 Ky. 479, 1950 Ky. LEXIS 902
CourtCourt of Appeals of Kentucky
DecidedJuly 28, 1950
StatusPublished
Cited by40 cases

This text of 232 S.W.2d 85 (Preston v. Clements) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Preston v. Clements, 232 S.W.2d 85, 313 Ky. 479, 1950 Ky. LEXIS 902 (Ky. Ct. App. 1950).

Opinion

Judge Latimer

Affirming.

Pursuant to and under authority of legislative enactment, the State Property and Buildings Commission proposed and set up plans for the issuance and sale of $4,000,000 in bonds to erect what is known as the Capitol Annex now under construction adjacent to the New State Capitol.

Appellant, Leonard W. Preston, suing as a taxpayer and for and on behalf of all other taxpayers of Kentucky, filed petition and amended petition against Earle C. Clements, Governor of Kentucky, Lawrence W. Wetherby, Lieutenant-Governor, A. E. Punk, Attorney General of Kentucky, Dr. John W. Manning, Commissioner of [482]*482Finance, and H. Clyde Reeves, Commissioner of Revenue, constituting and composing the State Property and Buildings Commission, challenging the constitutionality of both the proposed plan for the issuance and sale of bonds and the legislative enactment under which the Commission proposed to act, known as Chapter 56 as it appears in 1950 Supplement to the Kentucky Revised Statutes.

Appellees filed general demurrer to petition, and without waiving same filed answer. By order of the Court the answer was made a cross-petition against the cross-defendants, Bear, Stearns & Company, and their associates forming a syndicate, who were the purchasers of the bonds sold by the Commission. These cross-defendants filed answer. By these pleadings these parties sought to have their respective rights declared and established. Appellees then filed general demurrer to answer of cross-defendants, and without waiving same, filed a reply and introduced evidence before the lower Court upon issues raised by the cross-petition, answer of cross-defendants, and reply thereto. Plaintiff then filed amended petition to conform to facts. General demurrer to appellant’s petition as amended was sustained. Appellant declined to plead further, whereupon the Court dismissed the original petition as amended, and then made a declaration of rights as between appellees and cross-defendants, to all of which the original petitioner and cross-defendants objected and excepted, prayed for and were granted an appeal to the Court of Appeals!

We address ourselves first to the attack upon the constitutionality of the law under which the Commission is acting. It is insisted that the Act vests arbitrary discretion in this administrative office; that it fails to prescribe uniform rules of conduct and procedure; and that it delegates legislative authority to an administrative body, thereby violating Sections 27 and 29 of our Constitution. We are again confronted with the question of public administrative law. Though not traditionally recognized as a part of the law, this phase of the law has so planted itself in the field of jurisprudence, that it no longer is looked upon as a nonestablished and revolutionary concept.

Appellees question the right of appellant Preston to [483]*483attack the constitutionality of the Act on the ground that there is no infringement on his rights. True, such an attack is open only to persons whose rights are affected by the Act, unless what is being undertaken under the Act is illegal per se. See 11 Am.Jur. 748, Court Law; Tri-City Ferry Company v. Birney, 235 Ky. 540, 31 S.W.2d 932; Lewis v. Furste, 261 Ky. 763, 88 S.W.2d 939; Stein v. Kentucky State Tax Commission, 266 Ky. 469, 99 S.W.2d 443. However, we deem it unnecessary and do not here undertake to express an opinion concerning Preston’s right of attack, since the same questions presented by him have been raised by appellant cross-defendants, who unquestionably have an interest.

The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the cause under consideration. The proposed plan for sale of revenue bonds and the manner of procuring funds to liquidate them gave rise to and are really the subject of this action.

It certainly cannot be persuasively argued that, in respect thereto, the Commission is acting arbitrarily or that there are no rules of action to govern it. The Act is comprehensive and complete regarding the power and authority of the Commission to issue and sell revenue bonds, and the Commission is definitely circumscribed in the manner and method of its procedure with respect thereto. But it is insisted that the courts will look not necessarily to what is being done, but to what, under the Act, may validly be done.

It is argued that the Commission is given absolute and arbitrary power over the property now owned by the State and a like and equal power both to acquire property and to control the use thereof; that it is given like authority to spend as it pleases .$15,000,000 of revenue of the Commonwealth; and that it is given arbitrary power to determine the comparative needs of the various State agencies, all without any uniform rule of action to govern it, or any standard whereby the exercise of its discretion may be measured. • Appellant cites as examples of this naked and arbitrary power portions of the Act, chief among which are the provision:

“To purchase, lease or rent such real estate as the Commission may find to be necessary for the use by [484]*484the State or by any State agency, upon such terms and conditions and for such consideration as may appear to the Commission to be fair and reasonable.” KRS Supp. 1950, 56.460(3).
“To sell and convey any real estate owned by the State or by any State agency, found by the Commission not to be needed for public use or to have become unsuitable for such use except * * KRS Supp. 1950, 56.460(4).

We direct attention to the words in the cited portions “find to be necessary,” “fair and reasonable,” “found by the Commission.” The use of the above in the language of the Act is purposeful and significant. The general rule is that the Legislature may delegate to and confer upon administrative bodies power to find facts and conditions. A careful reading of the Act shows there to be no delegation of regulatory power. There is no offered opportunity for the seizure of power by the Commission. The Commission, under the Act, does not promulgate rules and regulations. There is no implementation of the Statutes by any delegated authority to formulate rules for the future action of the Commission. No authority is given to impose restrictive rules outside the provisions of the Act. There are no quasi legislative or quasi judicial powers or duties conferred. Actually, there are involved only ministerial responsibilities, first, to ascertain the building and housing needs of the State, and then make application of the legislative mandate. The presumption is that administrative bodies will always act within the limits of their authority. An act is not unconstitutional merely because there may be an anticipated unfaithful and invalid administration of it. Any arbitrarily attempted unfaithful or invalid administration of the law would never be free from the restraining hand of the courts. Administrative activities have heretofore been attacked upon substantially the same ground as here wherein this Court has denied the contention of the challengers. Johnson, Governor, v. Commonwealth ex rel. Meredith, Attorney General, 291 Ky.

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Bluebook (online)
232 S.W.2d 85, 313 Ky. 479, 1950 Ky. LEXIS 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preston-v-clements-kyctapp-1950.