| Ky. Ct. App. | Oct 29, 1907
Opinion of the Court by
Affirming.
The question for adjudication presented by this record is the constitutionality of an act of the General Assembly of the Commonwealth of Kentucky, approved February 21, 1906, entitled “An act to create the Thirty-Third judicial district of Kentucky and to change the TWenty-Sixth. Twenty-Seventh- and Twenty-Eighth circuit court judicial districts of Kentucky, and to provide for the holding of courts in the 'said Twenty-Sixth, Twenty-Seventh, and Twenty-Eighth and Thirty-Third districts, and to provide for judges and commonwealth attorneys for same.” Chapter 4, p. 12, Sess. Acts 1906.
In order to dispose of the question before us, it will be necessary to examine and construe the following sections of the Constitution:
“Sec.'51. 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,*837 amended, or the provisions thereof extended or conferred by reference to its title only, bnt so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length!”
“Sec. 125. A circuit court shall be established in each county now existing, or which may hereafter be created, in this commonwealth.”
“Sec. 128. 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 divided, 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. 132. 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. 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. ’ ’
By the United States census for 1890 the State of ’Kentucky contained a population of 1,858,635. By the census of 1900 it had a population of 2,147,174. At both periods of time Jefferson, alone of the counties of Kentucky, had a population of 150,000.
The firs't proposition of appellant is that the act in question is unconstitutional because it violates section 51 of the Constitution, in that the provisions of the body are not germane to the title. This position is untenable. An inspection of the title copied above shows that it provides for the creation of the Thirty-Third judicial district of Kentucky; and, while it may be somewhat prolix and unnecessarily circumstantial in its provisions, yet it all relates to the establishment of the Thirty-Third judicial district of Kentucky, and recites the changes in the other districts necessary to its creation. There is therefore clearly but one subject contained in the title, which is, as said before, the establishment of the Thirty-Third judicial district of Kentucky. Nor is there anything in the body of the act foreign to the title. The Thirty-Third judicial district is made up of counties taken from the Twenty-Sixth, Twenty-Seventh and Twenty-Eighth districts, and this necessarily caused some shiftings and changes which were required to be recited in the act in order to express the whole will of the Legislature; but there is no provision which could have been left out (except the matter of the appointment of the judge and commonwealth’s attorney, to' be hereafter noticed) without militating against the complete establishment of the district. This being true, all the provisions but those contained in the exception noted above were necessarily germane to the title, and it therefore follows that, so far as section 51 of the Constitution is concerned, the act is constitutional. Wiemer v. Commissioners of the Sinking Fund, 124 Ky. 377" court="Ky. Ct. App." date_filed="1907-01-22" href="https://app.midpage.ai/document/wiemer-v-comrs-sinking-fund-7136330?utm_source=webapp" opinion_id="7136330">124 Ky. 377, 99 S. W. 242. 30 Ky.
Assuming, merely for the purposes of the case before us, that so much of the act as authorized the Governor to appoint the judge and prosecuting attorney in the newly created district, until the regular election in 1909 is invalid, that does not avail the appellant here. The part of the act which provides for the appointment of these officers is severable from the other provisions, and could be left out without crippling the remainder, and therefore the act as a whole is not vitiated by the unconstitutional part. Wiemer v. Commissioners of Sinking Fund, supra. The title of the officers, however, is not placed in issue by the record before us, and it is not necessary, therefore, to say anything further upon this point. As the act in question establishes a new district, it is not in contravention of section 134 of the Constitution, but it is obviously within the express permission of that section.
This brings us'to the main question insisted on by appellant, that the creation of the Thirty-Third judicial district is in contravention of section 132 of the Constitution. It. will very materially simplify and shorten the discussion' on this point to state that the question turns on the construction of section 132; it being concéded by the appellant that, if the ascertainment of the whole number of judicial districts permissible by the section in question is to be obtained by dividing the entire population of the Commonwealth by 60,000, the quotient will be more than 33, and the act is constitutional. On the other hand, it is conceded by the appellee that if the number of
There is no. room whatever for the position of appellant that the population of Jefferson county was to be deducted from the population of the State before the division authorized was made. If this had been the intention, the word “remainder” would have been used, instead of the' word “entire,” and the language would have been: “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 remainder of the State.” We are not authorized' to take such liberties with the language of the Constitution as is involved in changing the words used by its authors. The framers of that instrument were learned men, who understood the use and the meaning of words, and therefore the interpolation of “remainder” for “entire” would be a flagrant violation of that canon of construction which requires the words of such instruments to be given the meaning that will effectuate the intention of the framers. It follows, therefore, from the very force of the language used, that in the first division of the counties of the State into circuit judicial districts section 128 of the Constitution authorized the establishment of as many judicial districts, exclusive of Jefferson county, as the quotient obtained by dividing the population of the State, inclusive of the population of Jefferson county, by 60,000.
The only material difference between sections 132 and 128, in so far as the question we now have under discussion is concerned, is the omission of the word “entire” before the expression “population of the State”; but, as said before, no reason can be given
There is nothing in the opinion in Butler v. Stephens, 119 Ky. 616" court="Ky. Ct. App." date_filed="1905-01-15" href="https://app.midpage.ai/document/butler-v-stephens-7135787?utm_source=webapp" opinion_id="7135787">119 Ky. 616, 25 Ky. L. R. 241, 84 S. W. 745, which militates against the conclusion we have herein reached. The question before the court in that case was whether each district should have a population of at least 60,000, and it was held that the language ef the section of the Constitution involved here only relates' to the number of the districts, and that these might be varied as to population in the discretion of the Legislature. But it is recited in the opinion that the first Legislature which met after the adoption of the Constitution, in putting in force section 128, placed the same construction on the language under discussion that we have in this opinion; this being shown by the fact that they created 30 districts, and this could only be done by dividing the population of the whole State by 60,000. Had they deducted from the population of the State the population of Jefferson county, and divided this remainder by 60,000, only 27 districts could have been established. So far as Butler v. Stephens is an authority upon the question in hand, it is in favor of the conclusion we have reached.
As the judgment below was in conformity with the views herein expressed, it is affirmed.