80 Ky. 269 | Ky. Ct. App. | 1882
Lead Opinion
delivered the opinion op the court.
The appellee, W. C. D. Whipps, was indicted by a grand jury, empaneled in the Jefferson circuit court, of the offense •of promoting a lottery, by permitting a building occupied -and owned by him to be used for the sale of lottery tickets, for the disposal of money and property by way of lottery, and by advertising a lottery known as the Willard Hotel Lottery, by which it was proposed to dispose of certain
Section first of that act provides: “That it may be lawful for W. C. D. Whipps, of Louisville, Jefferson county, Kentucky, to dispose of the Willard Hotel property, situated on Jefferson street, in the city of Louisville, Kentucky, with two houses and lots on Green street in the rear of the Willard Hotel, &c., and for that purpose may issue and sell by his agents as many certificates of specified undivided interests therein, at prices which will, in the aggregate, amount to the fair equitable value of the property and the costs of disposing of the same in the manner hereby authorized.
“Sec. 2. That Robert Mallory, L. M. Flournoy, H. Clay, EL P. Whittaker, and G. A. Winston be, and they are hereby, appointed commissioners, any three of whom may ■act, whose duty it shall be to determine by lot, as may be mentioned in said certificates, to what shareholder or shareholders any portion or portions of said property shall belong, and to whom the title thereunto shall be made, and to do and perform all such acts as, in their opinion, may be necessary to carry this act into full effect, and shall invest the funds arising from said certificates in the payment of the just creditors of the said Whipps.
“Sec. 3. This act is intended to apply to the property described herein, and to no other, and when said property
By reason of this act, the appellee claims the right b> dispose of his property by way of lottery, and to appropriate the’proceeds to the payment of his creditors.
The court below adjudged in his favor by dismissing the-indictment, and the Commonwealth is in this court asking a reversal. The attorney for the state maintains that the act in question is. in violation of section one of the bill of rights. The section reads: “That all freemen when they form a social compact are equal, and that no man or set of men are entitled to' exclusive separate public emoluments or privileges from the community, but in consideration of public service. ”
The proper construction or true meaning of this section of the bill of rights is the issue presented, and we are aware of no case decided by this court where the question has been directly considered, if at all, and certainly no case analogous to the one under consideration.
Without discussing the grammatical construction of the language used in the section, it is plain, we think, that this constitutional inhibition was intended to prevent the exercise of some public function, or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service, and if made to apply to the exercise of mere private rights or special privileges, it nullifies almost innumerable legislative enactments that are to be found in our private statutes, sanctioned, in many instances, by every department of the state government. It is our boast, as is urged by counsel for the state, “that under our government none are entitled to exclusive rights, but that all are governed by equal laws, subject to like burdens, and
The citizen has the right to demand that he shall be governed and protected by these general laws, and when excluded from such protection it is in plain violation of his constitutional rights. An absolute equality of private rights in the exercise of special privileges, if even possible, is not practicable under our form of government in the light this-case has been presented by counsel for the 'state. Special privileges must be.granted as a matter of necessity, originating not only by reason of our form of government, but from' the general laws enacted for the protection of person and property. General laws cannot always be applied to individual necessities, and particularly with reference to' the' right of property, and when a special privilege is granted, with reference to one’s own property, and without injury to-others, we perceive no objection to it. If the legislature' should be denied the right, by an amendment to the constitution, to legislate with reference to local or private interests, the sovereign (the people) would confer this right to local tribunals vested with similar powers. What interest has A in the sale and transfer of the property of B, if it in
When the citizen undertakes to discharge a duty to the public that the state is under an obligation'to discharge, and in consideration for the undertaking an exclusive privilege is granted, the grant is constitutional, because in consideration of public service.. The exclusive right to keep a ferry, to construct and operate highways, &c. — all such exclusive rights are based upon a consideration rendered the public in the discharge of a duty the state was required to perform. It becomes a binding contract, and cannot be violated by either the state or the citizen, nor can it be repealed unless that right is reserved in the grant, or by reason of some
A mere privilege granted by the legislature for the exer- ■ cise of a private right is always subject to legislative repeal, • and while rights of property acquired by reason of such .special privileges cannot be divested, the right to repeal •exists until such rights are acquired under it, and even after, except in so far as it may be necessary to protect or preserve the property rights already acquired. This constitutes the principal distinction between grants in consideration of public service and mere privileges for the advaricement of private interests. The question as to the right of a state to •contract with the citizen is not involved in this case. The state may contract with its citizens with reference to matters of public necessity, and such contracts are as binding as contracts between individuals, the only difference being that, when the state violates its contract, the citizen is without ¡any coercive remedy, unless permission is given by the state to the party injured to seek redress by action for the wrong • complained of. The cases cited by counsel bear but little analogy to the question before us.
In the case of Holden against James, 11 Mass., an attempt was made to suspend the statute of limitation in a particular case, so as to take it out of the operation of the general law. The case of Lewis v. Webb, 3 Greenleaf, was where an appeal was authorized by the legislature in a particular case; regardless of the general law- and in Durkee •against Zanesville, 28th Wisconsin, the city of Zanesville was exempted from the payment of costs in a proceeding . against it by Durkee. This legislation was plainly in violation of the individual rights of others, and a disregard of
This character of legislation has been indulged in since the formation of the state constitution, and has met the approval of every department of the state government, and it is now too late to question the exercise of such a power. The right to sue the state may, by special legislation, be given to one, and, at the same time, withheld from another by reason of the general-law. It is said, however, that this is expressly authorized by the sixth section of article eight of the constitution, that provides: ‘ ‘ The General Assembly may direct, by law, in what manner, and in what courts, suits, may be brought against the Commonwealth.” ‘
This provision does not authorize a violation of the doctrine of equality under the law, and a permission to one to sue the state, without the same privilege given to all others, •is in violation of the' fundamental law, if we adopt the theory •presented by counsel for the Commonwealth. Suit after suit :is permitted to be instituted against the state by the individual citizen, and when not affecting the rights of others, there can be no objection to it. The legislature may, and often does, authorize one under the age of twenty-one years to exercise all the rights of an adult with reference to his estate and business affairs, still, if the views of counsel prevail, all such acts are unconstitutional, because the same right is not •granted to every citizen who is not an adult.
The charter of every private corporation, in which the •public can have no interest, except such as may arise by
In the case .of Gordon against the Winchester Building-Association, reported in 12th Bush, where the corporatiom had been authorized to loan money at ten per cent, interest, this court held, in an action to recover the money, that the-act authorizing a loan for interest exceeding that permitted, to be charged by the general law was unconstitutional, and in the decision of the case regarded it as- an exclusive right conferred on the association that brought it within the-constitutional inhibition. ■ Whether the'reasoning in that: case is sound is not material to inquire in this case, as the-court differs upon the question, as it had ■ heretofore differed, upon a similar - question brought- up from the Louisville-chancery court. In the case of Gordon the money was; loaned at ten per cent, interest, and a premium of $66: required to be paid for the- privilege of borrowing, • and the:
Lottery grants are now in existence in this state, and their constitutionality has never been denied, nor can the theory of counsel be maintained that their validity is upheld by reason of or in consideration of public service. There is no more obligation on the state, through its legislature, to maintain a public school at Frankfort than there is to pay the debts of the appellee, and if so, why grant a lottery privilege to the one college, and deny the right to-a like college located in a different locality ? It is conferring' a privilege on one, and withholding it from the other. These-are, in fact, mere special privileges acquired under legislative grant for the advancement of private or local interests, that in no manner violates the rights of others; and neither grant can be said to have been made in consideration of public service. . ,
The motive prompting the legislature to make the grant cannot be inquired into by this court. “Plenary power in-the legislature for all purposes of civil government is the rule,” with uncontrolled authority in making the laws within the limits of the constitution. This court has nothing to do-with the moral question involved; if it had, the case could be easily disposed of. ‘ ‘ The legislature makes, the. executive executes, and the judiciary construes the law.” (Cooley on Constitutional Limitation.)
The appellee Whipps was involved in debt, and the legislature, upon, his application, granted him the privilege of .selling his property by lottery at a single drawing, the proceeds to be applied to the payment of this indebtedness. The extent of the grant, and the power conferred by it, is not questioned. The commonwealth, after making the ■grant, has indicted him for proceeding to act under it, and is 'insisting that he shall be fined in a sum not exceeding ten thousand dollars for promoting a lottery. No other party. is complaining, and the citizen, by reason of the grant, deprived of no right he had when the grant was made. (Patterson v. Trabue, 3 J. J. M.; McReynolds v. Smallhousey Kibby v. Chetwood’s adm’r, 4 Mon. ; 8 Bush, Williams v. Sheehan v. Basset’s heirs, 6 Mon.; Commonwealth, 27 Miss. ; Commonwealth v. Jackson, 5 Bush.)
Can this penalty be enforced ? and is the act unconstitutional? Both questions must be answered in the negative, and the judgment below is therefore affermed, Judges Hargis and Hines dissenting.
Dissenting Opinion
in which
I am unable to concur in.the opinion affirming the judgement of the lower court by án-equal.'division here, and -therefore proceed to state my reasons for believing that the judgment should be reversed.
Appellee was indicted for setting up and promoting a lottery, which is denounced by the general law, with a pen.alty of from $500 to $10,000, and in defense he relied upon -an act passed for his benefit, which was held by the court below to be a protection.
That act is' entitled ‘ ‘ An act for the benefit of W. C. D. •Whipps, ” and authorizes him to run a lottery for the purpose of selling certain real éstate and personal property .belonging to him, 'and directs that the proceeds of the drawing be paid to the creditors of Whipps.
The only question I need discuss is, whether this act is not ’unconstitutional, because forbidden by the first section of 'the bill of rights.
That section reads as follows: “That all freemen, when vthey form a social compact, are equal, and that no' men or •set of men are entitled to exclusive, separate public emolu•ments or privileges from the community, but in consideration 'of public services.”
It is insisted by counsel for appellee that this provision •was aimed at the exclusive exercise of some public function and was intended to prevent the creation of hereditary offices and titles of nobility. This cannot be the proper •construction, for the twenty-eighth section of the bill of rights expressly says that the General Assembly “shall not ;grant any title of nobility or hereditary distinction, nor icreate ;an.y office, the appointment to which shall be for a
The opinion of the court in the case now- under consideration does not undertake in express terms to overrule the Gordon case, but it is said that the opinion in -that case might well have been placed on the grounds upon which the ■ case of Hubert v, Kenton Building Association, 11 Bush, was based, and counsel say it can be sustained upon the-grounds of the opinion in Rowland, Smith & Co. v. Bell’s ex’r, 5 B. M. ' That cannot be correct, because in those-cases the question was whether more interest had been charged than was authorized by the law, while in the Gordon case there was no question as to what interest was authorized to be charged, but the question was, whether the legislature could authorize the association to charge more interest than others were permitted to charge. In the two cases-cited the constitutional question did not and could not arise. The Gordon case is exactly in point and must be overruled.
It is insisted that this legislation is not more within the constitutional inhibition than exclusive grants for ferries, bridges, and turnpikes, and it is sought to justify it upon the same principle. That kind of legislation does not sanction this. It is essentially different in principle. The granting of ferry privileges, the authority to build bridges and to make turnpikes, is the exercise of a governmental function, and usually requires the exercise of the power of eminent domain, and are granted in consideration of certain services, to be performed for the benefit of the public. Such means-of intercommunication are necessary in order that the citizen may perform his duty to the government, to facilitate com
It is upon the same idea of the exercise of a governmental function and the performance of a service to the public that all the lottery grants in this state have been sustained. In every instance where such grants have passed under review in the courts, and have been approved, they have been created for the ostensible purpose of establishing schools, libraries, or wharves for the public convenience. All these things, when carried out, are public services, and result in the performance of rights and duties which devolve upon the government. The furnishing of educational facilities, •as furnishing means of communication by'which the citizen may perform his duties to the state, is the exercise of gov■ernmental functions and duties which may properly be delegated to any person or persons to be performed for the government, and upon such conditions as the government may prescribe. It is upon this principle that the grant to "the Green and Barren River Company, in Smallhouse v. Reymonds, 8 Bush, was sustained. The company performed .a public service by keeping the public works on the rivers in repair, and thus furnishing that facility for commerce -which it was the right and the duty of the state to do.
It is further suggested in the opinion that an act of the legislature authorizing suit to be brought by an individual against the state is the granting of an exclusive privilege. Article 8, section 6, of the constitution provides that “the' general assembly may direct, by law, in what manner, and in what courts, suits may be brought against the commonwealth.” But for this provision of the constitution, such a grant, in my opinion, would clearly be the creation of an exclusive privilege, which is forbidden by the first section of the bill of rights. The effect, however, is to allow the legislature to confer the privilege of suing, and as thgre is no limit prescribed, and no restriction placed upon the legislature as to the character of law that may be passed under this provision, it is reasonable to presume that it should be left to the legislative department in each case to determine whether the right of action should be granted. There is nothing in the constitution from which it could be determined that it was the intention to confine the legislative action to the passage of a general law authorizing suits against the commonwealth, because if such had been the intention it was only necessary to say that any citizen might.
The theory of all free governments, whether under a written constitution or not, is equal rights, equal privileges, and •equal capacities, to every citizen in the acquisition of property, and in the preservation of life, liberty, and property. 'This legislation violates that spirit as-well as the very letter -of the constitution, and the construction contended for by •appellee, when carried to its logical and legitimate result, would cause incalculable harm. For illustration: there is a .general law against gaming. Suppose the legislature should ••attempt to pass a law allowing appellee to deal faro, to gamble at cards, or in any other way, and at any place in the .state of Kentucky, when all other persons are forbidden by the general law to do these things. Or suppose the attempt was made-to authorize him to run a lottery for his private ■gain in every town and village in the state, while the general law forbids any one else to do the same thing. Is it not •perfectly clear that the courts would not hesitate to declare •such legislation invalid? and yet the same reason that would •support the act in favor of appellee would support such legislation. The question presented is not one as to the extent •of the injury by legislation, but it is andnquiry as to legislative power — not of degree but of kind.
If this section of the constitution does not apply to this class of legislation, there is nothing in the letter of the constitution to prevent the legislature from creating any character of monopoly for the aggrandizement of a private individual. Suppose a general law should he passed forbidding the sale an the state of any given commodity, and an act should be .subsequently passed authorizing a particular person, for his
It is not true that the courts cannot declare an act of the legislature unconstitutional or void unless expressly forbidden by the letter of the constitution. The constitution • divides the government into three departments — legislative, •executive, and judicial — and provides that neither of these departments shall exercise any power properly belonging to • either of the others. The constitution does not undertake-;to define what the powers or duties of these several departments are, but leaves them to be determined by the maxims of magna charta and the common law, so-that whatever act of the legislative department (which we are alone con.sidering) that is not so approved is outside of the pale of legislation, and absolutely void. For instance, the legislature ■ cannot authorize the property of one individual to be-taken • and transferred to another; it cannot make one an arbiter in .his own case, nor can it, under the guise of taxation, confiscate the property of the citizen. Not because .any of these ■things are expressly forbidden in the constitution, but because it is outside of the delegated authority, which is only .legislative, and they are, therefore, arbitrary and despotic, belonging to no department of any free government.
It appears to me that the act relied upon is likewise out•side the limits of legislation, and for that reason - void. There is no special obligation on the state to look to the personal welfare of appellee more than to that of any other citizen. He performs no public service. He exercises no delegated governmental function, nor is he a ward' of the
It is insisted that the commonwealth cannot question its own grant 'of a franchise; that it is necessary in every instance that some individual complain of an injury to himself before the courts can entertain jurisdiction to inquire into the constitutionality of an act-of the legislature. This assumption is the result of the failure to recognize that the legislative branch of the government, like the executive and the judiciary, is limited in its operation, and that any act passed outside of this limit is not legislative, but is absolutely a void ‘ act, as declared by the last section of the bill of rights. The legislature is not the state, and its act is not the act of the state, except when done within the bounds, prescribed by the constitution. A void act confers neither power nor immunity upon any one. It is as if it had not been passed. In this case appellee must be held to have known the law, and therefore that the act under which he attempted to justify was void. The appearance of the commonwealth in court is not the appearance of the legislative branch alone, but it is as the representative of the people, and when the whole body of the people are affected, the commonwealth, through its constituted legal representative, may appear to question any act of any branch of the government.
In England even the Attorney General, in the name of the Crown, may appear in court as the representative of the King to question - the validity of a patent granted by the King himself, because the whole body of the people are interested that no illegal grant shall exist.
The judgment of the court below should be reversed.