Scott v. McCreary

147 S.W. 903, 148 Ky. 791, 1912 Ky. LEXIS 544

• Court: Court of Appeals of Kentucky
• Decided: June 12, 1912
• Status: Published

Opinions

Opinion of the Court by

Chief Justice Hobson—

Reversing in part and affirming in part:

The last General Assembly passed an act creating the 36tk judicial district, and providing that the district should consist of the county of Franklin. So far as material, the act is in these words:

“That whereas, in order to give due regard to territory, business and population as required by section 128 of the Constitution, and

“Whereas, the criminal and civil docket of the Franklin Circuit Court, including\the State fiscal business, involving large sums and a great amount of litigation of vast importance to the State, renders it impractical for the circuit judge of the fourteenth judicial district to dispose of the same without unreasonable delay and accumulation of costs, therefore,

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

“Par. 1. That the thirty-sixth judicial district shall consist of the county of Franklin. * * *

“The Governor shall appoint a circuit judge for said thirty-sixth judicial district to serve until the next regular election occurring not less than three months thereafter, when said office shall be filled by election.”

This suit was brought to contest the validity of the act. R. L. Stout, the circuit judge of the fourteenth judicial district, which embraced the county of Franklin, filed his petition in the action alleging that he was a resident of the county of Franklin, and so entitled to hold the office of judge of the thirty-sixth judicial district. On the hearing of the action, the circuit court held the act valid, and dismissed Judge Stout’s petition. From this judgment, the appeals before us are prosecuted.

Sections 128,132,134 and 138 of the Constitution are as follows:

“At its first session after the adoption of this Constitution, the General Assembly, having due regard to territory, business and population, shall divide the State into a sufficient number of judicial districts to carry into effect the provisions of this Constitution concerning circuit courts. In making such apportionment, no county shall .be divivided, and the number of said districts, excluding those in counties having a population of one hundred and fifty thousand, shall not exceed one district for each sixty thousand of the population of the entire State.” (Sec. 128.)

“The General Assembly, when deemed necessary, may establish additional districts; but the whole number of districts, exclusive of counties having a population of one hundred and fifty thousand, shall not exceed at any time one for every sixty thousand of population of the State according to the last enumeration.” (Sec. 132.)

“The judicial districts of the State shall not be changed except at the first session after an enumeration, unless upon the establishment of a new district.” (Sec. 134.)

“Each county having a city of twenty thousand inhabitants, -and a population, including said city, of forty thousand- or. more, may constitute a district, and when its population reaches seventy-five thousand, the General Assembly may provide that it shall have an additional judge, .and such district may have a judge for each additional fifty thousand' population above one hundred thousand. And in such counties the General Assembly shall, by proper laws, direct in what manner the court shall be held and the business therein conducted.” (Sec. 138.)

It will be observed that by section 128, the General Assembly, having due regard to territory, business and population, must divide the State into a sufficient number of judicial districts to carry into effect the provisions of the constitution; that in making such apportionment no county shall be divided, and the number of districts, excluding those in counties having a population of 150,-000, shall not exceed one district for each 60,000 of the population of the entire State. By section 132, the General Assembly, when deemed necessary, may establish additional districts, but the whole number of districts, exclusive of counties having a population of 150,000, shall not exceed one for every 60,000 of population of the State, according to the last enumeration. By section 134, the judicial districts of the State shall not be changed, except at the first session after an enumeration, unless upon the establishment of a new district. And by section 138, each county having a city of 20,000 inhabitants, and a population, including the city, of 40,000 or more, may constitute a district. Franklin County, by the last enumeration, had a population of 21,135, and it had in it the city of Frankfort, which, by that enumeration, had a population of 10,465. It will be observed that section 132, limiting the number of districts, which the General Assembly may create, bases it upon the population of the State according to the last enumeration, and this limitation is also referred to in section 134, but no such limitation is contained in section 138. A county having a city of 20,000 inhabitants and a population, including the city, of 40,000 or more, in fact, may constitute a district, although its population, according to the last enumeration, may be less than this. In the case before us, it is averred in the petition that the population of the county is less than 40,000, and that it contains no city of 20,000 inhabitants, and these allegations are admitted by the demurrer to be true; but, it is insisted that, notwithstanding this, the act is valid. Several reasons have been assigned to sustain this view.

One reason assigned is that the word “may” in section 138 should be read as “must,” and that the section means that where a county has a city of 20,000 inhabitants and a population, including the city, of 40,000 or more, it must constitute a district. We are referred to a number of eases in which statutes containing the word “may” have been construed as though the word “must” was used, where duties were imposed affecting the rights of the public, but we have not been referred to any case where this rule of construction has been applied to a State Constitution. The words of a State Constitution are usually selected' with great care, anld so solemn an instrument should be read as written, unless upon the clearest evidence that the makers of the instrument intended otherwise. We see nothing in the provisions of the Constitution quoted, to justify such a construction here. The Legislature is required to have due regard to territory, business and population in dividing the State ■into circuit court districts. They are to consider the bushness, no less than the territory and population, and it cannot reasonably be inferred that the framers of the Constitution contemplated that the Legislature should not take into consideration the amount of business, in a county containing a city having 20,000 inhabitants and a population, including the city, of 40,000 or more.

Another reason assigned, is this: It is said that there are a number of counties in the State, having no city of 20,000 inhabitants, but having a rapidly increasing population which will soon be more than 40,000, and where there are several towns in a county, and its population and business require a court of continuous session, the Legislature has the power to make such county a district under section 128, and that section 138 should be construed so as 'to permit a county having a city of 20,-000 and a population, including the city, of 40,000 or more, to be made a separate district, regardless of the business done there; but we cannot believe that the makers of the Constitution, who were practical men, had any such distinction in mind. They were providing for the dispatch of the judicial business of the State, and they did not intend to permit the Legislature in creating judicial districts to lose sight of the necessities of business. diving section 138 this construction would, in our opinion, be practically to eliminate it from the Constitution; for, it would have, under such a construction, no practical meaning or effect. The other- sections would have expressed this meaning if section 138 had been omitted from the instrument.

When the makers of the Constitution provided that a county, under certain conditions, may constitute a district, they, by necessary implication, provided that a county may not constitute a district unless these conditions exist. A state constitution is to be construed in the natural sense of the terms used, for it has been adopted by the people and derives its entire force from that fact. The people who adopted it could only judge of its provisions by reading it, and when the sections of the Constitution above quoted are read together, we do not see how the conclusion can be escaped that section 138 is a limitation upon the power of the General Assembly, authorizing it to constitute a single county a district in a certain contingency, and restraining it from doing this under other circumstances. By section 116 of the Constitution, it is provided that the Legislature may, every ten years after the first apportionment, redistrict the State into appellate court districts, and in Clark v. Lester, 104 Ky., 191, it was held that the Legislature could not change the districts within ten years. We do not see how that case can be distinguished from the one before us. A state Constitution is not a grant of legislative powers. The Legislature has all power, unless restricted by the Constitution. And, when a State Constitution provides that a Legislature may do certain things in a certain contingency, it must mean that it cannot do these things otherwise.

Lastly, it is insisted that it must be presumed that the Legislature found as a fact that he county of Franklin had a city of 20,000 inhabitants and a population, including the city, of 40,000 or more, and that this legislative finding is conclusive upon the court. But, it will be observed from the preamble of the act that the Legislature made no such finding. Waiving this, and conceding that the passage of the act is a finding by the General Assembly of all the facts necessary to its passage, we are of opinion that the validity of the act depends upon the fact of population, and not upon the finding of the General Assembly as to it. By section 63 of the Constitution, the Legislature is forbidden to create a new county, unless under certain conditions. In Zimmerman v. Brooks, 118 Ky., 85, we had before us the validity of a legislative act creating a county, and it was insisted that the legislative finding as to the facts was conclusive upon the court. Bejecting this contention, we said:

“Constitutional guaranties would amount to nothing •if there was no way to protect them. The court will not adjudge bad a legislative act on doubtful evidence, but, where it is plain that the Constitution has been violated, it is the duty of the court to say what the law is, and protect private rights, otherwise, the Constitution may be disregarded, and power may be exercised by the Legislature in a case where, under the Constitution, it is without power to act at all, and those whose rights are tlius destroyed will be left without remedy. ’ ’

In the subsequent case of Griffin v. Powell, 143 Ky., 276, we held that the Legislature, under the Constitution, must assign the cities of the State to the classes to which they belong and that the legislative finding as to population, in assigning cities to the different classes, was conclusive on the court, but that ruling is based upon the language of section 156 of the Constitution, which is materially different from section 138.' In that case Zimmerman v. Brooks was approved, but distinguished from the case then before the court. Referring to that case, the court said:

“In the opinion it was. held that the courts can take judicial notice of the counties of the State and their boundaries as fixed by the statute; and also of the public surveys made by the State and published by its authorities. This principle made it permissible for the court, aside from the question of population, to determine from the facts before it whether the provisions of the Constitution as to area, boundaries and distances, had been violated by the act; but the court also had the right to 'determine upon the facts presented whether the act violated the provision of the Constitution as to population. In other words, as the provisions of the Constitution with respect to the creation by the Legislature of new counties contain no requirement that the Legislature shall act upon evidence in establishing them, the courts are not required, as in a case of the Legislature’s assigning a city to a particular class, to presume that that body acted upon sufficient evidence, but may hear evidence and determine from it whether in establishing the county the legislative enactment violates the constitutional provisions, or any of them as to area, boundary, distance or population.”

The case of Commonwealth v. Chinn, 97 Ky., 730, which is also relied on here, was in like manner distinguished in that case.

The census of 1910 was taken only about two years ago. The county of Franklin, including the city of Frankfort, had then only a population of 21,135, and that census did not show any great increase of population in the last ten years. There has been no remarkable growth in the population since that census was taken, and it is admitted by the demurrer that the county has not a population of 40,000, or a city of 20,000 inhabitants. When the Legislature comes to act under section 138, it should not create a district of a single county, unless it has evidence that the population is sufficient to fill the constitutional requirement, but, though it may have this evidence, still, if the fact does not exist, the court will inquire into the fact and will not sustain the act, if in violation of the Constitution. True, great weight will be given to the legislative finding where the facts are doubtful, and the legislative finding will not be disturbed upon doubtful evidence; but, where the facts are clear, the court must do its duty and maintain the supremacy of the Constitution. Were the rule otherwise, constitutional limitations would be valueless. We, therefore, conclude that the act is invalid, and that the circuit court erred in sustaining the demurrer to the petition.

This disposes also of the other branch of the case arising on the appeal of Judge Stout. In the case of McCreary, Governor v. Fields, decided June 6, 1912, we also settled the question of law raised by him adversely to his views.

On the appeal of James Andrew Scott the judgment is reversed and cause remanded for further proceedings consistent herewith. On the appeal of E. L. Stout the judgment is affirmed.

Whole court sitting. Judges Lassing and Winn dissent.