Purnell v. Mann

48 S.W. 407, 105 Ky. 87, 1898 Ky. LEXIS 244

• Court: Court of Appeals of Kentucky
• Decided: December 10, 1898
• Status: Published

Opinions

CHIEF JUSTICE LEWIS

delivered- tiie opinion of tiie court.

The judgment before ns for revision was rendered in an agreed ease where appellants, Purnell, judge of the county court, Paxton, clerk thereof, and Bowen, sheriff of Bourbon county, seek to have appellees, Rann, Clay, and Smith, enjoined from exercising- the authority conferred or performing the duties imposed upon them as members of the board of election commissioners for that county by “An act to further regulate elections,” which was passed by the Senate and by the House of Representatives, each, on March 11,189S, over objections of the governor. The question of law arising on the agreed facts is as to the validity of the act referred to. The general power of the judicial department of this state to decide what is the law on each case presented necessarily includes power to inquire and determine whether a particular statute, validity of which is questioned, be consistent with or repugnant to the Constitution. But not only is it expressly forbidden by section 28 of that instrument to exercise any power properly belonging to either of the other two departments, but there are salutary and inflexible rules, universally recognized in this country, by which the court is controlled in determining when it may or may not interfere to pronounce a statute void. Legislative power is, and, according to our form of government can be, limited onty by restrictions the organic law imposes. Hence, as said in Griswold v. Hepburn, 2 Duv., 20: “Whenever a jurist inquires whether a State statute is consistent with the State Constitution, he looks into that Constitution, not for a grant, but onty for some limitation of the power inherent in the people’s legislative organ, so far as not forbidden by their organic law.” In City of Lexington v. McQuillan’s Heirs, 9 Dana, 513, [35 Am. Dec., 159], the question was as-to validitj of a statute by which power was given to the mayor and councilmen of Lexington to have the streets and alleys paved at expense of owners of adjacent lots; and although it was contended the statute violated the principle of equality of taxation, and disregarded the doctrine that taxation and representation should go together, the statute was upheld. In the subsequent case of City of Louisville v. Hyatt, 2 B. Mon., 177 [36 Am. Dec., 594], In which arose a similar question, the court, after admitting a doubt of the validity of the statute question in the case of City of Lexington v. McQuillan’s Heirs, used this language: “Yet it does seem to us that we would be justly chargeable with wandering from the appropriate sphere of the judiciary department were we, by subtile elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that such a power may be questionable, and on such unstable and unjudicial grounds to defy and overrule the public will clearly announced by the legislative organ. Whenever this court shall be well convinced that a legislative act is unconstitutional, it should not hesitate to pronounce it so,' and therefore disregard it as void. But the policy and justice of legislation belong not to the judicial, but legislative, discretion. And to merely doubt legislative power is not enough to justify judicial resistance.” It could be readily deducted from what was there said, even if it was not settled doctrine, that the judiciary can not pronounce a statute unconstitutional and void because it may, in the opinion of the court, be impolitic, unjust, or oppressive, or because it appears to violate what might be deemed fundamental principles, or what is called the “genius and spirit of our institutions.” The true and only test of the validity of a statute which the court can properly apply is whether it be in express terms or by clear implication forbidden by the Constitution, and, if there be a doubt on the subject, it is the duty of the court to resolve it in favor of the validity of such statute. For the judiciary to apply any other test would be for the judiciary itself to become pro tanto law-maker.

A statute such as the one in question, which relates exclusively to administration of the government, must be presumed by the court to have been enacted with knowledge of, and under instructions by, the people; and, if not so, it is always subject to repeal, which is the natural and safest process by which, in a government like ours, to get rid of an objectionable statute. Nevertheless the court; observing the rules mentioned, should not shrink from so pronouncing, if satisfied such.statute is invalid. The general election law of June 30, 1892, being contained in chapter 41, Ky. Stat., is, or was intended to be, a complete system securing to every person having requisite qualifications the right and opportunity to vote, and ascertaining and declaring the true result of election^. By sec-' tion 1447, being part of article 3, c. 41, Ky. Stat., each county court is empowered to appoint officers of election. Section 1507 provides that the judge of the county court, clerk thereof, and sheriff shall constitute a board for examining returns of elections in each county and giving certificates of election. By section 1534 the judge of each county court and two justices of the peace are constituted a board, for determining contested election of county officers; and by section 1553 the Governor, Attorney General, Auditor, and Secretary of State constitute a board for determining contested elections of any officers, other than Governor or Lieutenant Governor, elective by voters of the whole State, or of a judge of the Court of Appeals, circuit judge, and Commonwealth’s attorney. By the act in question it is provided the General Assembly should elect three commissioners, styled "The State Board of Election Commissioners,” which has been done; said board being empowered to appoint a “County Board of Commissioners,” composed of three persons. The latter board is authorized by the act, instead of the county court, to appoint for each county officers of elections. It constitutes, instead of the county judge, clerk, and sheriff, the canvassing board for each county; and, instead of the county .judge and two justices of the peace, it constitutes the contesting board for each county. It is further provided that the State board of election commissioners shall constitute, instead of the Governor, Attorney General, Auditor, and Secretary of State, .a board for determining contested elections of any officer, other than Governor and Lieutenant Governor, elective by voters of the whole State, or of a judge of the Court of Appeals, circuit judge, or Commonwealth’s attorney. The act contains other provisions, a reference to which at this place is not necessary for determination of the questions involved.

1. It is contended the statute in question was not enacted as required by section 51 of the Constitution, as follows: “No law enacted by the General Assembly shall relate to more than one subject and that shall be expressed in the title; and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length.” The first clause of that section was section 37 of the Constitution of 1850, and the object of it was to prevent passage of any act having a title misleading or imperfect, or relating to two or more subjects foreign to each other, whereby members of the General Assembly and people were deceived or misinformed as to the true or whole purport of it. But the second clause, added by framers of the present Constitution, applies to acts revised or amended. Though section 51 relates to the form or manner of enactment, rather than to the subject-matter, it was, we think, so intended, and should be treated as mandatory. But, as substantial compliance with section 37 of the Constitution of 1850 was held to be sufficient, section 51, as it now stands, should be construed and applied the same way. The question then arises how to construe the provision, “but so much thereof as is revised, amended, extended or conferred shall be reenacted and published at length,” so.as to substantially comply with that section. We think the manifest intention was that the provision should apply only to so much of the law as, after passage of the new act, remains in force amended. To construe it otherwise would involve an absurdity, for while a law, or part of a law, that is repealed, or for which a substitute has been adopted, might be republished, though to no purpose, it certainly was not intended it should simultaneously die and be reenacted. The Constitutions of many States contain a similar provision. In regard to the purpose of such provision, in People v. Mahany, 13 Mich., 497, it was said: “The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act, which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect.” Judge Cooley, in his treatise on Constitutional Limitations, having cited that case, said: “If this be a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. * * It is believed that the general understanding of the provision in question is that it is fully complied with in letter and spirit if the act or section revised or amended is set forth and published as revised or amended, and that anything more only tends to render the statute unnecessarily cumbrous.” We have been referred by counsel to a number of cases sustaining Judge Cooley, but need not mention them, because satisfied that republication of a law then and thereby repealed is not required by section 51 of the Constitution. There is no direct reference made in the act in question to any particular section of the general election law amended or •repealed by it, nor do we think section 51 expressly or impliedly requires it done. The act as passed and published is full and specific enough, as to all subjects embraced by it, to show for what parts of the general election law it is substituted; and these parts are both in terms and by implication repealed, leaving the residue unaffected and in full force. Manifestly, neither members of the General Assembly nor the people could misunderstand or be deceived as to the purview, purport, or effect of the act.

2. It is contended that the act is repugnant to section 6 of the Bill of Rights, which.reads: “All elections shall be free and equal.” Counsel argues that, to make elections free and equal, in meaning of that section, it is not sufficient that all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, but to maintain “equality” it is necessary that leading parties should be recognized in selecting officers of election. It is true, honest elections are necessary to obtain a fair expression of the will of the people. But can this court determine that an election law is unconstitutional and void for the sole reason it does not provide for selection of election officers of different political parties? The Constitution of 1792, that of 1799, and that of 1850, each contained a Bill of Eights, in which was the mandate that all elections should be free and equal; but no statute requiring officers of elections to be of different political parties was ever passed until 1858. So, if the argument of counsel be sound, there was not a valid election law in this State until G6 years after it was founded. Whether such provision is necessary or conducive to securing free and' equal elections is a question purely of legislative discretion, about which the Constitution is silent, and in regard to which it is not the province or right of the court to decide. The act in question does, however, require the county board to select officers to hold elections belonging to different political parties, just as did the general election law, before being amended, require the county court to do. And if it be said the county board owes its existence to the State board, composed wholly of members of one particular party, it may be answered the county judge is usually elected with reference to his party affiliation. But the truth is, neither the old nor the new law could or does fully accomplish the object of wholly devesting the appointment of election officers from party bias or influence, and it would be difficult to frame a law that would do so. It would, therefore, be futile for this court, even if the subject was within its proper sphere, to pronounce a statute void because defective in that respect, when the law thereby revised is little, if any, less so.

3. It is contended that the act in conferring power upon the State board to appoint members of the county board, and investing them with authority to appoint election officers and to act as canvassing and contesting boards, violates the principle of local self-government. We do not regard the principle of local self-government at all involved, because the duties imposed upon officers of election, as well as those assigned to the two boards, concern the State government. But, conceding the act does so, the question again arises whether the Constitution in express terms or by clear implication forbids exercise of legislative discretion as to that matter. We are satisfied it does not, and therefore this court has no excuse to interfere on that ground.

á. The act does not, as argued, violate section 1G1 of the Constitution, which forbids the compensation of any city, county, town, or municipal officer being changed during his term of office; for the duties imposed by the general election law upon the various county officers do not, except in virtue of a repealable statute, pertain at all to several offices, and, of course, when they are by an amendatory statute relieved of these duties, their per diem pay ceases without at all involving a change of compensation in meaning of section 161.

5. Whether election by the General Assembly of the State board of elections and appointment by it of the county board, provided for in the act, involve exercise of power by the legislative department properly belonging to the executive department, and are consequently forbidden by section 28 of the Constitution, is a question to some extent considered in the case of Sinking- Fund Commissioners v. George (decided at tlie last term of this court) [47 S. W.,779]. But, as it is suggested this case is not like that, we will make some remarks on the subject in addition to what was said in that case. Section 153 of the Constitution is as follows: “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 and making certificates or commissions to persons entitled thereto and for trial of contested elections.” As plenary power over the subject of elections is thereby given, it at least is a fair inference, in the absence of any provision forbidding, that exercise of power by the General Assembly in the manner provided by the act in question is permitted. Section.93 is as follows: “Inferior State officers not specifically provided for in this Constitution may be appointed or elected in such manner as may be prescribed by law for a term of not exceeding four years, and until their successors are appointed or elected and qualified.” And section 107 reads: “The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district ministerial or executive officers as may from time to time be necessary.” As power is expressly given by these two sections to the General Assembly, in its discretion, to create, in addition to the officers mentioned in the Constitution, both State and local offices, to be filled by either election or appointment, the court, in absence of express or clearly implied limitation of that power, is not justified in deciding it has been exceeded or improperly exercised by election of the State Board and appointment by it of the County Board as provided by the act. As said by Chief Justice Marshall in the case of Fletcher v. Peck, 6 Cranch, 89: “How far the power of giving the law involves every other power, in cases where the Constitution is silent, never has been, and perhaps never will be, stated.” The power of appointing officers can not, in view of the present scheme of our State Government, be said to belong peculiarly or inherently to the executive department. Whatever might have been the condition prior to the Constitution of 1850, where all officers, except a few classes of local ■officers, were appointed by the Governor,, it was radically changed by that Constitution, which took from Mm power to originally appoint any officer except Secretary of State; and by the present Constitution he is deprived of the power to appoint even that officer. We áre unable to perceive that the act in question is forbidden in express terms or by clear implication of the Constitution. Nor does it have effect to hinder operation or enforcement of any part of the general election law, except such parts thereof, plainly indicated and easily understood, as are inconsistent with and repealed by it. Whether legislative power has, as argued, been exercised in an unwisq, improvident, or dangerous manner, is not for this court to decide, our power being restricted to the single inquiry whether the Constitution has been violated. The people alone, through the Legislature, must determine as to justice and policy of the statute. Judgment affirmed.