148 Ky. 807 | Ky. Ct. App. | 1912
Opinion op the Court by
Be ver sing.
The last General Assembly passed an act adding one additional judge to the circuit court for the seventeenth circuit court district, which embraces the county of Campbell, and this suit was brought to test the validity of the act, it being alleged in the petition that the county has not a population of 75,000 inhabitants, but only a population, according to the last enumeration, of 59,369, and less than 61,000 in fact at the present time. The defendants demurred to the petition, and their demurrer was sustained. The plaintiff stood upon his petition and appeals.
The constitutional provisions involved are those quoted in the opinion in the case of Scott v. McCreary, Governor, decided June 12, 1912, and for the reasons set
The act, so far as material, reads as follows:
“Whereas, the population of the seventeenth circuit court district now exceeds seventy-five thousand inhabitants, and, whereas, it is impossible for one judge to dispose of the business of said court, with reasonable dispatch, and the number of cases upon the docket of said court is constantly increasing, therefore,
“Be it Enacted by the General Assembly' of the Commonwealth of Kentucky:
“Section 1. That one additional judge of the circuit court for the seventeenth circuit court district is hereby authorized and added to said court.
“Section 2. Such additional judge shall preside over the criminal, common law and equity division of said court. ■
“Section 3. Within sixty days after this act shall have become operative the Governor shall appoint a person having the qualifications of a circuit judge to preside over the Criminal, Common Law and Equity Division of the seventeenth circuit court district, who, when appointed, shall be commissioned by the Governor as judge of such division of the seventeenth circuit court district, and shall enter upon the duties of the office as soon as he shall have qualified, and shall continue in office until the first Monday in January, nineteen hundred and thirteen, and until' his successor is elected and shall have qualified. ’ ’
The act was approved by the Governor March 19, 1912, and contained an emergency clause. The Govern- or shortly thereafter appointed and commissioned Hon. John T. Hodge as the judge. It will be observed that, on the face of the act, it is not subject to any constitutional objection, as it shows that the county has the necessary population, and Judge Hodge, having been commissioned bv the Governor under an act fair on its face, has color of title to the office. Although, it turns out that the act is unconstitutional, for the reason that the county has not the necessary population, Judge Hodge is a de facto officer, and his acts before the statute is adjudged unconstitutional, are valid. State v. Gardner, 53 Ohio St., 145, 31 L. R. A., 660; Burt v. Winona, &c., R. R. Co., 31 Minn.,
It is insisted that the conclusion we have announced is very far reaching and will overturn the courts that have been established in Payette County and in Kenton County, but no such consequences need be apprehended. When the Legislature acts under section 138, and it is a matter of doubt whether the county has the required population, complaint must seasonably be made, and if not made promptly, .the complainant will not be heard after the court has been established and has fairly become a part of the government of the State. Thus, in Adams v. Bosworth, 126 Ky., 61, the court, while hold-' ing unconstitutional an act just .passed, refused to hold unconstitutional an act passed many years before under which the government had been conducted, since ¡it-was passed, on the ground that to hold it .void would: be to, throw the government into chaos, and .that it-was too late* for anyone to question its validity. •. The ;.same- rule has been applied in. other. States.. whe;re-..-act$.:,were .passed
Judgment reversed and cause remanded for further proceedings consistent herewith.