191 Ky. 351 | Ky. Ct. App. | 1921
Opinion of tpie Court by
Affirming.
The question involved upon this appeal is the validity of Chapter 48, Session Acts, 1920. The relief granted by the judgment appealed from was the restraining of the county court clerk from placing upon the ballots to be used in the primary and general elections in the district composed of Jefferson county, the names of any persons as candidates for judge of either the chancery branch, domestic relations division, or judge of the chancery branch, general division, of the circuit court, as provided for by Chapter 48, Acts of the General Assembly of the 1920 Session. The county court clerk has appealed from the judgment.
Subsection 4 of section 1020, supra, provided that a circuit court having seven judges should have seven branches, which should be designated criminal branch; chancery branch, first division; chancery branch, second division, and common pleas branches, first, second, third and fourth divisions, respectively. The amendment to this section contained in Chapter 48, supra, provided that the chancery branches instead of being designated as first and second divisions, should be designated as chancery branch, domestic relations division, and chancery branch, general division.
Subsection 6 of section 1020, supra, provides for the purpose of making up the issues, the assignment of all equitable actions and proceedings to the chancery branches of the court, first and second divisions, an equal number to each, and for the assignment of actions and proceedings not equitable, in equal numbers, to each of the four common pleas divisions of the court. It, also, provided that all criminal proceedings should be in the criminal division and that actions and proceedings in other divisions of the court should be tried in such divisions according to rules of court made in general terms of the court, but the rules must provide for the trial of causes assigned to the common pleas divisions after the
“All actions or special proceedings involving divorce or alimony or both, and all cases and matters coming within the terms and provisions of an act entitled, ‘An act fixing and defining the powers of the several county courts within this Commonwealth with reference to persons responsible therefor or directly permitting, or contributing to the conditions that render a child dependent, neglected or delinquent, and providing’ how such powers may be exercised,’ approved March nineteenth, nineteen hundred and eight, also, all cases and matters coming within the terms and provisions of an act entitled, ‘An act relating to children who are now or may hereafter become dependent, neglected or delinquent, to define these terms and fixing and defining the powers of the several county courts within this Commonwealth with reference to the care, treatment and control of such children, and to provide for the means whereby such powers may be exercised,’ approved March nineteenth, nineteen hundred and eight, also, all cases and matters coming within the terms and provisions of an act entitled, ‘An act to provide for the punishment of persons responsible for, or directly promoting, or contributing to the conditions that render a child dependent, neglected or delinquent,’ approved March 23, 1910, and all actions, oases and matters coming within the terms and provisions of all acts amending these said acts shall be brought or instituted in the chancery branch, domestic relations division, and assigned by the proper clerk to the chancery branch, domestic division. All other equitable actions shall be assigned to the chancery branch, general division.
*355 “For the purpose only of making up the issues, whenever twelve actions or special proceedings not equitable are unassigned, the clerk shall in the presence of one of the judges . . . and assign them to the four divisions of the common pleas branch, giving to the first division the first three drawn, etc.
“The actions and proceedings in the other branches and divisions shall be tried in such branches and divisions according to rules of the court to be made in general term; but the rules shall provide for reassignment of eases and actions assigned to the chancery branch, domestic relations division, and the chancery branch, general division to other divisions when such reassignment is deemed necessary to relieve congested dockets, or for any other reason deemed by the judges in general term to be sufficient, except that it is expressly provided that no divorce case involving children, or other cases involving children, properly belonging to the juvenile session of the domestic relations division, under provisions of this act, shall be transferred or reassigned from this division. The clerk of the county court shall perform all the duties arising out of the said juvenile court acts as now provided by law. ’ ’
Subsection 7 of section 1020, supra, provided that a person, who was elected a judge by ballots marked with the designation of a certain division, should preside in that division during Ms entire term of office, designating the divisions as the other sections of that act, and the only change effected as to this section by the amendment contained in Chapter 48, supra, was to change the names of the chancery divisions from first and second, to domestic relations and general divisions, respectively.
It will be observed that the only alteration in the statute effected by Chapter 48, supra, as to the subsections 1, 4 and 7 of section 1020, supra, is to change the designations of the two chancery branches, of the court from chancery branch, first division and chancery branch, second division to chancery branch, domestic relations division and chancery branch, general division, respectively, and the validity of these amendments will be considered after the validity of the amendment contained in Chapter 48, supra, to subsection 6 of section 1020, supra, is disposed of.
When subsection 6 of section 1020, supra, as amended and re-enacted in 'Chapter 48, supra, is analyzed it is
(1) It authorizes the circuit court for the district of Jefferson county, to try and determine all causes which arise out of the three acts of the Greneral Assembly enumerated in the section as amended, the jurisdiction to try which was conferred by those three acts exclusively, upon the county courts throughout the Commonwealth and, by inference, attempts to invest the circuit court in Jefferson county, with the jurisdiction of such causes. They consist of all the causes relating to dependent, neglected and delinquent children, and in the language of the amendment in Chapter 48, “All cases and matters coming within the terms and provisions of the three acts of the assembly, including the power to penally punish in certain instances the persons who are responsible for or permit or contribute to the conditions, which render a child dependent, neglected or delinquent. ’ ’ The jurisdiction of all such causes and matters in every other county is vested in the connty courts by the three acts mentioned.
(2) It undertakes to constitute the county court clerk, the clerk of the circuit court in all the actions and proceedings arising under the three acts of the assembly mentioned.
(3) It requires the institution of all actions and special proceedings relating to divorce and alimony, and the causes relating to children arising under the three acts mentioned,' in the chancery branch, domestic relations divisions, of the court and the assignment of all such to that division, both for the making up of the issues and for trial, and the assignment of all other actions and proceedings cognizable in equity to the chancery branch, general division, of the court, both for making the issues and for trial, instead of an assignment of an equal number of the equity causes to each of the chancery branches, as provided by section 1020, supra.
(4) The amendment and re-enactment provides that to relievo a congested docket, the rule's of the court made in general terms shall provide for the reassignment of actions and proceedings from the chancery branches of the court to other divisions, when the reassignment is deemed necessary by the judges of the chancery divisions, but this authority the'judges could exercise under rules such as they were authorized to adopt before the enactment of Chapter 48, supra, but under the amend
That all that portion of section 3 of Chapter 48, supra, which is and purports to be an amendment to subsection 6 of section 1020, and which undertakes to confer jurisdiction upon the circuit court or either of its branches of the actions and proceedings arising under the two juvenile acts of March 19,1908, and the one of March 23,1910,. and to take away the jurisdiction of such matters from the county court of Jefferson county, is void, because violative of sections 59 and 141 of the Constitution, is too clear for discussion or controversy. That a general law could be constitutionally enacted conferring upon the circuit court the jurisdiction of such matters, there is no doubt, but Chapter 48 applies to only one district and to the county court of one county. Section 59 of the Constitution inhibits the enactment of any local or special act regulating the jurisdiction of the courts of justice, and the result of such constitutional provision is that the jurisdiction of the circuit courts must be uniform, and the legislature is without authority to provide that a circuit court in one district shall have jurisdiction of matters which in the other districts of the state is denied the circuit court and vested in other courts. Section 141 of the Constitution, provides as follows:
‘‘The jurisdiction of the county court shall be'unif orm throughout the state and shall be regulated by general law . . . ” Lynn v. Bullock, 189 Ky. 604; Kilburn v. Chapman, 163 Ky. 136; Stone v. Paducah, 120 Ky. 322.
The portion of section 3 of Chapter 48 which provides that the clerk of the county court shall perform the duties of the clerk of the circuit court with reference to all causes, actions and proceedings growing out of the jurisdiction of juvenile causes, attempted to be conferred upon the circuit court by the section,- supra, must fail along with the failure of the duties he was to perform under the act. If this were not true, that portion of the act would be void, as section 137 of the Constitution prohibits more than one clerk of the circuit court in a county, containing more than 150,000 inhabitants, and composing
When that portion of subsection 3 of Chapter 48, swpra, which confers upon the chancery branch, domestic relations division, the jurisdiction of “ All cases and matters coming within the terms and provisions ’ ’ of the three acts of the G-eneral Assembly enumerated in that section, and relating to juveniles, has been held to be void the only things effected by the various sections of Chapter 48, supra, in amendment of section 1020 are: (1) To change the names of the chancery branches of the court without changing their jurisdiction or duties in any respect; (2) To require for the purpose of making up the issues and for trial, the assignment of all actions and proceedings for divorce or alimony, or both, to the chancery branch, domestic relations division, and all other causes cognizable in chancery to the chancery branch, general division; and (3) To require that the rules made by the court in general term should authorize in order to relieve congestion in the dockets, or for any other reason which a judge of the chancery division to which an action or proceeding has been assigned, may deem sufficient, to reassign or transfer a cause from that division to another division of the court, except that such actions for divorce, as, also, involve the custody and maintenance of children, should not be transferred from the chancery branch, domestic relations division. The question now arises whether the above provisions of Chapter 48, supra, should fall along with the remainder of the act, or should be held operative and enforceable?
No one will dispute the principle that the same statute may contain valid provisions and others that are unconstitutional, and that the invalid sections or provisions may be eliminated without affecting the valid portions, if the valid provisions are so clearly separable from the invalid ones that they can stand and be operative without the assistance of the invalid ones, and this court as well as others, has oftentimes stricken from a statute an unconstitutional section or provision and held the remainder of the act to be operative and enforceable. Commonwealth v. Goldburg, 167 Ky. 96; Rogers v. Jacob, 88 Ky. 502; Smedley v. Commonwealth, 138 Ky. 1; Williams v. Wedding, 165 Ky. 361; Duke v. O’Bryan, 100 Ky. 710;
“And if they (meaning the valid and invalid provisions of the act) are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into 'effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all of the provisions which will thus be dependent, conditional or connected must fall with them. ’ ’
The doctrine of the above exceptions is upheld in Commonwealth v. Hatfield, 186 Ky. 423; I. C. R. R. Co. v. Commonwealth, 154 Ky. 332; Pollock v. Farmers Loan & Trust Co., 158 U. S. 601; Spraigue v. Thompson, 118 U. S. 90; Poindexter v. Greenhow, 114 U. S. 270. It seems that it would be a natural presumption, based on common sense, that the legislature having enacted Chapter 48, supra, as a whole, that it intended that it shoulcl'exist and have operation as a whole, and that it did not contemplate the operation of the inconsequential provisions of it which by themselves would be held valid, while the portion of the greatest consequence and the cause and purpose of the enactment should be declared inoperative, because unconstitutional. In other words, if the provisions of the act are of such a character that the court would not be justified in saying that the legislature intended that the valid parts of it should be enforced and operative, although the other parts should fail, the entire act must suffer the same fate as the invalid parts, otherwise the courts would be enforcing a law which the legislature never contemplated nor intended should be enforced, lienee, the validity of the provisions of Chapter 48 which have not been stricken out, because of unconstitutionality, depend upon what the intention of the legislature was in the enactment of that act, and before the provisions of it which aré not contrary to the Constitution, can be enforced, it must appear that the legislature would have enacted those provisions of the statute and intended
The judgment is therefore affirmed.