104 Ky. 191 | Ky. Ct. App. | 1898
delivered the opinion of the court.
Tlie appellees instituted this action in tlie Wliitley Circuit Court against E. G. Massengale, as clerk of the Whitley County Court, the object being to obtain a mandamus to compel him to place upon the official ballot of Whitley county the names of such person or persons as might be legally certified by the governing power of the political parties, or by the State, or by petition, as provided by law. The averments of the petition are as follows: “The plaintiff above named say that they are residents of, and legal voters in, Whitley county, Ky., and of the Third Appellate Court district, and, as such, have the legal and constitutional right to vote in the election of a judge of the Court of Appeals for said district, composed of the counties of Hardin, Bullitt, Nelson, Washington, Mjarion, Spencer, Larue, Hart, Green, Taylor, Adair, Metcalfe, Barren, Clinton, Wayne, Russell, Casey, Shelby, Oldham, Anderson, Pulaski, and Whitley, as formed by the act of the General Assembly approved June 17, 1893. They say that on Tuesday after the first Monday in November, 1898, an election will be held in said district, at which a judge of the Court of Appeals for said district will be elected by the voters thereof; that there are now a number of candidates in said district for said office, some of whom will be duly and legally nominated by their respective political parties in due time, and certificates or petitions as provided by law will be duly presented to the clerks of the County Court in the various counties comprising said district, to enable said clerks to have the names of all such candidates plated on the official ballot to be used at said election, to the end that the legal voters in said dis
“The defendant, E. S. Massengale, for answer and defense to the petition of plaintiffs, denies that Whitley county is in, or constitutes any part of, the Third Court of Appeals district of Kentucky, and denies that any election will or can be legally held in said county at the November election, 1898, for the election of judge of the Court of Appeals for said district. He denies that plaintiffs or any other citizens of Whitley county have the legal or constitutional right to vote for a judge of the Court of Appeals for said district at said election. For further answer, he says it is true that Whitley county was made a part of said district by an act of the General Assembly of Kentucky approved June 17, 1S93, entitled “An act relating to and providing for a Court of' Appeals,” but that by an act of the General Assembly of Kentuckj- which became a law March 14, 1898, without the approval of the governor (having been passed over his veto on the day aforesaid), Whitley county was taken out of said Court of Appeals district, and*196 made a part of the Fifth Court of Appeals district. Said act will become a law 90 days after the 15th day of March, 1898, viz. June 15, 189S; so that said act will be in full force and effect at the November election, 1898, and deprives plaintiffs of the right to vote for a judge of said court for the Third district. He herewith files a copy of said act of March 14,1898, and makes same a part hereof, as fully as if copied herein. He says that, because of the provisions of said act, he can'not legally, and will not, place the name of any candidate for judge of the Court of Appeals for the Third district upon the official ballot which he will in due time prepare for the use of the voters' of Whitley county at the November election, 189S; and, in failing to do so, he avers that he will not deprive plaintiffs or any of the citizens of Whitley county of any legal or constitutional right. Wherefore, having fully answered, he prays that plaintiffs’ petition be dismissed, and for all proper relief.”
The act of March 14, 1898, referred to in the answer, reads as follows:
“An act to amend and re-enact sections four, six and eight of an act entitled 'An act relating to and providing for a Court of Appeals,’ approved June 17, 1893.
“Be it enacted by the General Assembly of the Commonwealth of Kentucky:
“Section 1. That sections four, six and eight of an act entitled 'An ac.t relating to and providing for a Court of Appeals,’ approved June 17, 1893, be, and the same are, amended and re-enacted so as to read as follows:
'"Sec. 4. Third District: Hardin, Bullitt, Nelson, Washington, Marion, Spencer, Larue, Hart, Green, Taylor, Adair, Metcalf, Barren, Clinton, Wayne, Russell, Casey, Shelby, Oldham, Anderson, and Pulaski.
'"Sec. 6. Fifth District: Henry, Trimble, Carroll. Galla.*197 tin, Owen, Scott, Franklin, Bourbon, Fayette, Woodford, Garrard, Boyle, Jessamine, Madison, Mercer, Lincoln, Rock-castle, Clay, Jackson, Laurel) Knox, Owsley, Whitley, Bell, Harlan, Leslie, Perry, and Letcher.
“‘Sec. 8. Seventh District: Clark, Montgomery, Bath, Estill, Powell, Menefee, Lee, Breathitt,, Knott, Pike, Floyd, Magoffin, Wolf, Morgan, Elliott, Lawrence, Boyd, Johnson and Martin.’
“J. Crepps Wickliffe Beckham, Speaker of the House of Representatives.
“W. J. Worthington, President of the Senate.
“This bill passed through the House of Representatives and Senate, over the veto of the Governor, on the fourteenth day of March, 1898.
“Chas. Finley, Secretary of State.”
The reply to the foregoing answer is, in substance, as follows: The plaintiffs, for reply to the answer of the defendant, admit the passage of the act of March 14, 1898, a copy of which is filed with and made a part of defendant’s answer; but they say said act is in conflict with section 116 of the Constitution, and is therefore void. They aver that, under said section of the Constitution, the General Assembly can not change the Court of Appeals district within ten years after the passage of the act of June 17, 1893, entitled “An act relating to and providing for a Court of Appeals,” which act, they aver, is still in force and binding upon defendant. They further aver that said act of March 14, 1898, is in violation of section 51 of the Constitution, in this: That it does not set forth in full the section of the law intended to be amended and re-enacted, and the title of the act does not state the object and purpose of the act. They further say that said act is contrary to natural right and justice, and is intended to forever prevent them and all
The case was submitted upon the pleadings, and the court below adjudged that the act of March 14, 1898, was unconstitutional and void, and awarded the relief prayed for by the plaintiffs, and from that judgment the appellant prosecutes this appeal.
It is insisted for appellant that the act in question is"
The question presented for consideration is whether the act in question, to wit, the act of March 14, 1898, is in violation of section 116 of the present State Constitution. It will be seen that the Legislature was authorized and required to provide for the election of not less than five nor more than seven judges of the Court of Appeals, and that they were required to divide the State into districts for the election of such judges, and that the Legislature proceeded to discharge that duty as aforesaid; and it is the contention of the appellees that after the State was divided into districts, as provided for in section 116, no further change in the districts could be made until ten years from June 17, 1893. It will be observed that the'term of a judge is eight years, and that three of the judges are elected biennially, while four are elected at the same time. It will thus be seen that, if there can be no change in any district for the space of ten years, all of the citizens of the State will at some time have the privilege of voting for a‘judge of the Court of Appeals;‘and, in like manner, all citizens otherwise qualified may have the opportunity to be voted for, for that office. But, if the Legislature can at each biennial session change the boundary of part of the districts, it will be within the power of the Legislature to perpetually prevent many thousand voters from having the privilege of voting for a judge of the Court of Appeals, and in like manner prevent many citizens from having .an opportunity to be elected to that high and responsible office. We can