119 Ky. 616 | Ky. Ct. App. | 1905
Opinion op the court by
Affirming.
The Twenty-fourth Judicial District, prior to 1904, was composed of the counties of Floyd, Johnson, Knott, Martin, and Pike. In 1908, at the regular election, a circuit judge and commonwealth’s attorney were elected and commissioned for the term of six years, and entered upon the discharge of their duties. Appellant was the Commonwealth’s attorney elected for that district at that time., At the regular session of the Legislature held in 1904 there was erected a new distract — the Thirty-first — which was made to compromise the counties of Floyd, Knott, and Magoffin. The Governor appointed appellee as Commonwealth’s attorney in the Thirty-first District until the next succeeding regular election, who
We waive the question of practice presented by which the controversy was brought before the court, having come to the conclusion that the judgment must be affirmed on the merits of the case as they are made out in the record.
The validity of the act of 1904 (Sess. Acts 1904, p. 125, c. 51) is assailed on two grounds: First, it is contended that no new rural district can be created unless it contains at least 00,000 population; second, that, as the effect of the act is to diminish appellant’s salary or official compensation, it is repugnant, to section 235 of the Constitution, and as to appellant is void. By section 97 of the Constitution a Commonwealth’s attorney is to be elected in each judicial district. The Constitution of 1891 did away with all courts of general original jurisdiction save circuit courts. By section 128 the Legislature was required, at its first session after the Constitution went into effect, to divide the State into judicial districts. It was in that section provided: “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 distroct for each sixty thousand of the population of the entire State.” Section 132 of the Constitution reads: “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
Proceeding upon these assumptions, it is found that the last federal census shows that the State of Kentucky contained a population in 1900 of 2,147,174. The only county in the State then having a population of 150,000 or over was Jefferson, with a population of 232,549. This would have entitled the State to as many as thirty-one judicial districts outside of the county of Jefferson. At that time, and until the creation of the Thirty-first District, there were only thirty districts, including the county of Jefferson. Instead of the requirement being that each district must contain at least 60,000 population, save as expressly excepted, the Constitution carefully leaves the number of population to the wisdom of the General Assembly. In section 128, where the duty is imposed to divide the State into judicial districts, it is said: “The General Assembly, having due regard to the territory, business and population, shall divide the 'State into a sufficient number of judicial districts to cany into effect the provisions of this Constitution concerning circuit courts.” So that we see that something in addition to population was to enter into the consideration of the sizes of the districts. The inhibition is not against the size of the districts at all, except where single counties may constitute a district. The total number of districts only was limited by the population of the last preceding enumeration. Such was the construction of the first General Assembly that convened after the adoption of the Constitution, They then divided the State into circuit judicial districts, thirty in number. The last preceding census — that of 1890 — gave the State of Kentucky a population of 1,858,635. Jefferson county, then, as now, the only county having as many as 150,000’ population, contained 188,598 inhabitants. If it was required by
Section 235 of the Constitution read®: “The salaries of public officers shall not be changed during the term for which they were elected. . . .” By section 98 it was provided that: “The compensation of the Commonwealth’s attorney
Wherefore the judgment of the circuit court is affirmed.