125 S.W.2d 206 | Ky. Ct. App. | 1938
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *25
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *26 Affirming in part and reversing in part.
The General Assembly of Kentucky at its first extraordinary session in 1938 passed an act (see Acts of 1938, First Session Extraordinary, Chapter 19, Sections 1 and 3, Kentucky Statutes, Baldwin's 1938 Service, Sections 2237a-4, 2237a-6) providing that in counties having a population of 150,000 or more the jailer thereof may appoint a physician to the jail of such county, it being made the duty of such physician to attend upon and prescribe for all persons who may be confined in jail by order of court. The act fixed the salary of the jail physician at $2400 per annum to be paid by the county, but provided in counties in which there is a city having a separate government the county may require the city to pay its pro rata part of the physician's salary. *27 This act repealed an act of 1898, Kentucky Statutes, 1936 edition, Sections 2237a-1, 2237a-3, which was practically identical with the new act except that in the former the county judge and justices of the peace appointed the physician to the jail and the annual salary of the physician was fixed at $1500.
At the same extraordinary session of 1938 the General Assembly by Chapter 20 of its act provided for the appointment of a jail or police matron and two assistant matrons by the jailer where the county jail was located in a city of the first class, Sections 2877a-15 to 2877a-28, Kentucky Statutes, Baldwin's 1938 Service. This act provides that such matron and her assistants shall care for and have supervision over female prisoners in the jail and fixes the salary of each at $100 per month to be paid by the county in which the jail is located. This act supersedes and repeals the act of 1912 (Kentucky Statutes, 1936 edition, Sections 2877a-1 to 2877a-14) which was in all respects identical except that it only provided for the appointment of a matron and one assistant at a salary of $75 per month and reposed the appointive power in different authorities.
Jefferson county, which has a population of over 150,000, and in which Louisville, a city of the first class, is located, by and through its fiscal court instituted this action against Martin J. Connors, the jailer of that county, the jail physician, the police matron and assistant matrons appointed by the jailer, and the city of Louisville alleging that for reasons hereinafter set out both of the acts of 1938 were unconstitutional and violative of Sections 59, 60, 106, 171, 180 and 181a of the Constitution of Kentucky. They prayed for a declaration of rights between the parties.
By answer the defendants traversed the allegations of the petition and alleged that under the acts repealed and superseded by the acts under attack the county every year while such acts were in force paid the salary of the physician at the jail and of the jail matrons and at no time ever raised the question of the constitutionality of the acts until the acts of 1938 were passed; that by reason of such long continued acquiescence the county and the fiscal court are now estopped to claim that there is no reasonable basis for the classification made by the acts and that by contemporaneous construction extending over such long period of time the constitution *28 had been construed to mean that Jefferson county be compelled to pay the salary of the jail physicians and the matrons.
By way of counterclaim they asked that in the event the acts of 1938 be declared unconstitutional that the acts which they repealed be construed as to whether they are constitutional or unconstitutional. The court sustained a demurrer to the paragraphs of the answer setting up the affirmative defenses and defendants declining to further plead it was adjudged that both of the acts of 1938 were in all respects valid and constitutional except so much thereof as required the county to pay the compensation or salary of the physician to the jail and matron and assistant matrons and adjudged that such salary and compensation should be paid as deputies to the jailer are paid under Section 106 of the Constitution. The court declined to make any declaration under the counterclaim of defendants as to the constitutionality of the acts repealed by the acts of 1938. Defendants are appealing.
Controversy is made in briefs as to whether the appellate court on review is confined to a consideration of the constitutionality of the Act of 1938 under Section 106 of the Constitution. It is true that in the opinion of the chancellor reference is made only to Section 106 of the Constitution, but it will be noted that the judgment holds the act in all respects valid and constitutional except in the particulars above indicated. In the circumstances we are inclined to disregard the doubtful and technical question raised and consider briefly every ground of attack made by appellant upon the constitutionality of the acts.
Section 106 of the Constitution reads:
*29"The fees of county offices shall be regulated by law. In counties or cities having a population of seventy-five thousand or more, the clerks of the respective courts thereof (except the clerk of the city court), the marshals, the sheriffs and the jailers, shall be paid out of the state treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses not to exceed seventy-five per centum (75%), of the fees collected by said officers, respectively, and paid into the treasury."
It is the contention of the appellees as is alleged in the petition that the physician to the jail and the matrons are deputies or that their salaries are "necessary office expenses," within the meaning of Section 106 of the Constitution and should be paid out of the 75 per cent. of the fees collected by the jailer and turned over to the state treasurer as therein required. Of course counsel for appellants maintain otherwise and argue that the physician to the jail and the matrons are not deputies within the meaning of the Constitution and cite authorities, including Kentucky cases, to the effect that a deputy of an officer is one having power to do every act which the principal might do. One of the late Kentucky cases cited is Knuckles v. Board of Education of Bell County,
When we come to a consideration of the act providing for the appointment of the police matron and her assistants, an entirely different situation is presented. Under that act the matron and her assistants perform practically every duty required of the jailer in so far as the handling of female prisoners is concerned and it is our conclusion that they properly may and should be treated as deputies within the meaning of Section 106 of the Constitution.
It is further contended by counsel for appellees that *30 the acts violate Section 171 of the Constitution because they impose double taxation or at least impose a burden of taxation on Jefferson county which is unequal as between it and the other counties of the Commonwealth and is contrary to the uniformity and equality in levying of taxes as guaranteed by that section; that they violate Sections 180 and 181a of the Constitution in that it is an attempted appropriation by the state of funds of Jefferson county levied by the fiscal court and collected for other definite and specific county purposes; and also that they violate subsection 29 of Section 59 and also Section 60 of the Constitution in that they are special laws made applicable where a general law would suffice and that they are special and local acts which repeal in part a general act. All of these contentions may be properly treated together. Since, as we have concluded, the jail matron and her assistants are deputies within the meaning of Section 106 of the Constitution and the county of Jefferson will not be obligated to pay the salary of the matron and her assistants, it is not in position to press some of the grounds of attack upon that act.
In their final analysis all of these contentions come down to a question of classification and it is a doctrine of universal application that classification based on population of political subdivisions is permissible if rested on a reasonable basis and not a mere arbitrary division. The classification made by these acts bears a reasonable relation to the result sought to be accomplished and operates equally and alike on all persons in the same circumstances and conditions. They relate to every county having or that may have a population of over 150,000 and to all counties that have or may have within them cities of the first class. Necessarily there is a greater need for a physician to the jail and for jail matrons in counties having such a large population than in the less densely populated counties. Laws which operate in the same manner on all persons in like circumstances are not special or local laws. While an act making arbitrary and unreasonable classification of counties, cities or other political subdivisions for the purpose of making laws applicable to them alone will not be upheld, Droege v. McInerney,
Appellants' defense of estoppel and contemporaneous construction cannot be sustained. Section 106 of the Constitution is clear, unambiguous and leaves no doubt as to its meaning and purposes, or the abuses which it was intended to prohibit.
"Plain and unambiguous constitutional provisions cannot be varied by legislative, executive, or departmental construction. There is no room for construction of a Constitution outside of the words themselves, if they are unambiguous, and the rule as to the authority of contemporaneous exposition are unimportant in such cases. The construction placed upon a constitutional provision by the legislative and executive branches of the government will not be permitted to overturn and render nugatory a clear provision of the Constitution, in cases where the meaning of a clause in the instrument is capable of two interpretations." 11 Am. Jur., Section 78, pages 698 and 699.
As between the county and the city of Louisville, it is argued by the city that if the physician to the jail *32
is not a deputy within the purview of Section 106 of the Constitution and to be paid as therein provided, then that part of the act providing that in counties in which there is a city having a separate government, the county may require the city to pay its pro rata part of the physician's salary, creates double taxation against the city and presents a case of taxation without representation and destroys uniformity, contrary to Sections 171, 181 and 181a of the constitution. The case of Campbell County v. City of Newport,
Wherefore, the judgment is affirmed in part and reversed in part with directions to enter judgment in conformity with this opinion.
Whole Court sitting. *33