105 Ky. 87 | Ky. Ct. App. | 1898
Lead Opinion
delivered- tiie opinion of tiie court.
The judgment before ns for revision was rendered in an agreed ease where appellants, Purnell, judge of the county court, Paxton, clerk thereof, and Bowen, sheriff of Bourbon county, seek to have appellees, Rann, Clay, and Smith, enjoined from exercising- the authority conferred or per
A statute such as the one in question, which relates exclusively to administration of the government, must be presumed by the court to have been enacted with knowledge of, and under instructions by, the people; and, if not so, it is always subject to repeal, which is the natural and safest process by which, in a government like ours, to get rid of an objectionable statute. Nevertheless the court; observing the rules mentioned, should not shrink from so pronouncing, if satisfied such.statute is invalid. The general election law of June 30, 1892, being contained in chapter 41, Ky. Stat., is, or was intended to be, a complete system securing to every person having requisite qualifications the right and opportunity to vote, and ascertaining and declaring the true result of election^. By sec-' tion 1447, being part of article 3, c. 41, Ky. Stat., each county court is empowered to appoint officers of election. Section 1507 provides that the judge of the county court, clerk thereof, and sheriff shall constitute a board for examining returns of elections in each county and giving certificates of election. By section 1534 the judge of each county court and two justices of the peace are constituted a board, for determining contested election of county officers; and by section 1553 the Governor, Attorney General, Auditor, and Secretary of State constitute a board for determining contested elections of any officers, other than Governor or Lieutenant Governor, elective by voters of the whole State, or of a judge of the Court of Appeals, circuit judge, and Commonwealth’s attorney. By the act in question it is provided the General Assembly should elect three commissioners, styled "The State Board of Election Commissioners,” which has been done; said board being
1. It is contended the statute in question was not enacted as required by section 51 of the Constitution, as follows: “No law enacted by the General Assembly shall relate to more than one subject and that shall be expressed in the title; and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length.” The first clause of that section was section 37 of the Constitution of 1850, and the object of it was to prevent passage of any act having a title misleading or imperfect, or relating to two or more subjects foreign to each other, whereby members of the General Assembly and people were deceived or misinformed as to the true or whole purport of it. But the second clause, added by framers of the present Constitution, ap
2. It is contended that the act is repugnant to section 6 of the Bill of Rights, which.reads: “All elections shall be free and equal.” Counsel argues that, to make elections free and equal, in meaning of that section, it is not sufficient that all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, but to maintain “equality” it is necessary that leading parties should be recognized
3. It is contended that the act in conferring power upon the State board to appoint members of the county board, and investing them with authority to appoint election officers and to act as canvassing and contesting boards, violates the principle of local self-government. We do not regard the principle of local self-government at all involved, because the duties imposed upon officers of election, as well as those assigned to the two boards, concern the State government. But, conceding the act does so, the question again arises whether the Constitution in express terms or by clear implication forbids exercise of legislative discretion as to that matter. We are satisfied it does not, and therefore this court has no excuse to interfere on that ground.
á. The act does not, as argued, violate section 1G1 of the Constitution, which forbids the compensation of any city, county, town, or municipal officer being changed during his term of office; for the duties imposed by the general election law upon the various county officers do not, except in virtue of a repealable statute, pertain at all to several offices, and, of course, when they are by an amendatory statute relieved of these duties, their per diem pay ceases without at all involving a change of compensation in meaning of section 161.
5. Whether election by the General Assembly of the State board of elections and appointment by it of the county board, provided for in the act, involve exercise of power by the legislative department properly belonging to the executive department, and are consequently forbidden by section 28 of the Constitution, is a question to some extent considered in the case of Sinking- Fund Commissioners v. George
Dissenting Opinion
Dissenting opinion by
The constitutionality of an act entitled “An act to further regulate elections,” passed March 11, 1398, over the objections of the Governor, is the sole question involved in this case. The majority opinion of the court holds the act to be constitutional. I am not able to assent to the conclusions reached by the majority opinion of the court, and the question involved is of so much importance, and
The Legislature in June, 1892, enacted a general election law for the State, which may be found in chapter 41, Kentucky Statutes, and, beyond question, contained complete provisions for the conduct of all elections authorized by the Constitution, or laws enacted thereunder for the holding of elections, including the receiving and canvassing of the returns, issuing certificates of election, and providing for the trial of contested elections. The act under consideration is in conflict with many provisions of said chapter 41, and, if valid, necessarily repeals same, without making direct reference to any portion of chapter 41 so repealed, and, in my opinion, is a flagrant violation of section 51 of the Constitution, which reads as follows: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.” Some effect must necessarily be given to the section, supra, and the only purpose that seems reasonable is that it was intended by the provisions of said section that, whenever any act of the Legislature was amended or repealed, the existing law, or at least so much thereof as was amended or repealed, should be republished in connection with such amendment or additional enactment, to the end that when presented to the Legislature the members can readily see what the law would be with the amendment or repealing clause in force, and thereby be enabled to judge and determine as to whether the proposed modification should be
Section 6 of. the Constitution reads as follows: “All elections shall be free and equal/’ It is a well-known fact, of which courts must take judicial notice, that elections, and the general policy of the government, are conducted in and through political parties; and the act in question places it in the power of one political party to select all the State commissioners and county commissioners from one political party, and those so selected also constitute the Board of Contest; and it seems to me that the manifest meaning of section 6 is to forbid any such legislation. It
Section 161 of the Constitution reads as follows: “The compensation of any city, county, town, or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of anj- such officer be extended beyond the period for which he may have been elected or appointed.” The act in question is a violation of section 161, above quoted, for the reason that it deprives the several county judges, clerks, and sheriffs in office at the time of its enactment of fees which under the then existing laws they were entitled to at the time of their elections; and it is no answer to this contention to say that they are relieved of duties which under the former statute they were required to perform. The evident intention of section 161 was to render every officer secure in the emoluments of the office existing at
It occurs to me that the act under consideration is in violation of section 28 of the Constitution, which reads as follows: “No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” It seems to me that the election of State Commissioners provided for is an exercise of executive power, and therefore in conflict with section 28, supra-.
Section 135 of the Constitution reads as follows: “No courts, save those provided for in this Constitution, shall be established.” This new county as well as State Board’ of Contest to try contested elections is essentially a court
Section 107 provides that “the General Assembly may provide for the election or.appointment, for a term not exceeding four years, of such other county or district ministerial and executive officers as may,, from time to time, be necessary.” This provision only authorizes the appointment of ministerial and executive officers, and, taken in connection with the other provisions of the Constitution, necessarily prohibits the appointment of any additional judicial officers. .
Section 93 of the Constitution provides that: “Inferior State officers not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified.” The three Election Commissioners selected under the provisions of the act in question are in no sense inferior officers, and can not be so treated or recognized. They have greater power than any other tribunal in the State. They are authorized, to canvass the returns for every State officer, for judges of the Court of Appeals, circuit judges, Commonwealth’s attorneys, as well as members of congress. They have exclusive and final jurisdiction of all contested elections of Commonwealth’s attorneys, circuit judges, judges of the Court of Appeals, and all State officers except Governor and Lieutenant Governor; and it is worthy of note that the returns sent to them are sént by officers appointed by the State Commissioners. They may in fact absolutely determine who shall hold the offices hereinbefore enumerated. I can not believe it possible that the framers of the Constitution ever in
If any reliance can be placed in current history of tfye day, great efforts are being made by unworthy persons or associations to obtain all possible control of official and political power, for the purpose of using the same for selfish or unworthy purposes. If, from any cause, such malign influences should ever be able to procure the selection of two out of the three State Commissioners who were alike willing to serve such unworthy interests, it would be impossible for any considerable number of men not in sympathy with such unworthy purposes ever to hold any of the aforesaid important offices in the State; and it would be alike impossible to ever elect a Legislature that would repeal or modify the act in question, or elect
The majority opinion quotes sec. 153 of the. Constitution, which reads as follows: “Except as otherwise herein expressly provided, the General Assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections and making due returns thereof, for issuing certificates or commissions to all persons entitled thereto, and for the trial of contested elections.” If the section supra is to be given the construction that the majority opinion seems to attach to it, namely, that there is no restriction on the power of the Legislature as to the creation of new offices, and appointing the officers to conduct and control elections then it would follow that the Legislature may appoint one commissioner for life, with power to appoint one or more commissioners in each county, and one in each precinct, to conduct elections, make returns, issue certificates and commissions, and try all contests. The evident meaning of the section supra is that through the officers created and provided for by the Constitution, and consistently with its provisions, the Legislature should provide for the conduct of elections, including contests, etc. The construction given by the majoritv’- opinion to section 153 is clearly in conflict with section 2 of the Constitution, which says, “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even
It seems from current history, that a considerable portion of the population fear that corporations may seize upon and control the whole election machinery, and thereby wield it in their own interest, and to the detriment of the people at large. If there be any foundation for such apprehension, it is natural that such corporations would endeavor to secure the selection of the State Election Commissioners, and if they could do so, and could make them subservient, corporation control would be complete. On the other hand, if current history be true, quite a number of people fear that the anarchists or the lawless element will obtain governmental control, and thereby destroy property and individual rights. If there be any such desire, it is not unreasonable to suppose that that element will seek to secure the appointment of State Commissioners who will subserve their purposes; and, if they can succeed, then the community at large will be utterly under the control of that pernicious element. It may be true that the apprehension in regard to both these elements is entirely unfounded, yet the safety of the community demands that such control should, as far as practical, be made utterly impossible. For nearly half a century the people of the various counties have been allowed to elect their officers that control and manage county elections, so far as the appointment of county officers to conduct elections, canvass the vote, and certify the returns is concerned, and also elect the men who constitute the county board of contest, and for about the same length of time the voters of
Dissenting Opinion
Dissenting opinion by
In a dissenting opinion filed in the case of Sinking Fund Commissioners v. George, etc., decided June 23, 1898, I stated a few of my objections to the act establishing a Board of Prison Commissioners, and more especially my objections based upon the ground that the act was inherently vicious, as an invasion by the Legislature of the powe.rs of the Executive.
It is unnecessary here to go into the history of the constitutional provision, which I think has been violated by this act. That provision was drawn by Mr. Jefferson, with the provision of the Federal Constitution before him, and was designed by him as an improvement upon the provision therein contained, to insure a more perfect separation of the powers and privileges of- the three' great departments of government than was secured by that instrument. Knowing its purpose and its author, the fathers of the Kentucky Constitution adopted that provision, and it has remained unchanged in each successive Constitution adopt
“Sec. 27. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
“Sec. 28. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
The Constitution of the United States provides only that “all legislative powers herein granted shall be vested in a Congress of the United States,” with similar provisions as to the vesting of judicial and executive powers in the judiciary and the President, respectively. But it contains no inhibition against one of the departments exercising powers properly belonging to another, such as is contained in the Kentucky Constitution.
The reasons which seemed to me sufficient to justify us in holding the act creating the Board of Prison Commissioners unconstitutional apply with even greater force in the case at bar; for, in the former case, it could be argued with at least some show of plausibility that the Prison Commissioners were legislative agents. There is no pretext for holding the offices created by the act now under
In City of Louisville v. Wilson (99 Ky. 598) [36 S. W., 944] Chief Justice Lewis thus defined an officer: “There are Various tests by which to determine who are officers in the meaning of the law; but at last, in case of uncertainty, the intention of the law-makers controls. To constitute an officer, it does not seem to be material whether his term be for a .period fixed by law, or endure at the will of the creating power; but if an individual be invested with some portion of the functions of the government, to be exercised for the benefit of the public, he is a public officer.”
There can be absolutely no doubt that the appointees under this act are officers within the meafiing of the Constitution. If so, can they be appointed or elected by the Legislature?
It has been held by this court, through Chief Justice Robertson, that appointment to office is “intrinsically executive.” In Taylor v. Commonwealth (3 J. J. Mar., 401), that great judge said:
“And, although the Constitution has confided to the courts the appointment of their own clerks, still, tha nature of the power is not changed. It is essentially executive, whensoever, or by whomsoever, it may be exercised. It is as much executive when exercised by the court as by the Governor. It is the prerogative of appointing to office, and is of the same nature, whether it belonged to a court or to the Governor.”
The Constitution in force at the time this opinion was rendered authorized the court to appoint its own clerk.
This doctrine was approved by Chief Justice Ewing in Justices v. Harcourt (4 B. M., 500). Said the court: “But
By section 29 of the Constitution, the “legislative power” is Arested in a House of Representatives and a Senate, together styled the General Assembly. The Legislature being by this grant vested with all the legislative power, may do everything that can properly be done ly the enactment of a law, and in addition thereto may do everything that by the Constitution it is expressly directed or permitted to do. Each House may perform the executive act of electing its own officers (secs. 34 and 249); and may perform the judicial acts of judging of the qualifications, elections and returns of its members (sec. 38), punishing disorderly behavior and expelling members (sec. 39). The framers of the Constitution having deemed it necessary to expressly permit the Legislature to exercise the executive power of appointment in specified cases, this permission, by implication, forbids the Legislature to exercise such power in any other case.
The Congress of the United States, deriving its authority from a Constitution which does not contain the inhibition of section 28 of the Kentucky Constitution, has never passed an act which created an office and, at the same time, filled it. Only once has it attempted to do so.
It is not denied that the legislative department can appoint or elect an officer, when the duties of the office appertain to that department. And in this is found whatever justification exists for the Legislature’s election of the State Librarian — an office which, without any violent stretch of construction, may be considered as appertaining to the legislative department.
But, while the three commissioners provided for in this act are both executive and judicial officers, they are not in any sense legislative. They perform executive functions in appointing to and removing from office, and in canvassing the returns; and judicial functions in deciding contests. But they perform no legislative functionsi; nor could the Legislature delegate such power. The Legislature has no more power, in my opinion, to elect or appoint such officers than it has to enact a law providing what judgment shall be entered in a pending litigation, or than the courts would have to call out the militia.
In State v. Kenton (7 Ohio, 547), it was said: "The official or unofficial character of the officers is to be determined * * * by the nature of the functions devolving upon them. * * * To prescribe the manner of election or appointment to office is an ordinary legislative function;
In Langenberg v. Decker (13 Ind., 478), and the Indiana Constitution contains a provision like ours — it was said:
“The powers of these departments are not merely equal, they are exclusive in respect to the duties assigned to each, and they are absolutely independent of each other. The .encroachment of one upon the other is watched with jealous care, and is generally promptly resisted, for the observance of this division is essential to the maintenance of a republican form of government. * ® * It can not be contended that the State Board of Tax Commissioners belongs to the legislative department. ® * * It can not be successfully maintained that the Legislature could confer upon the governor and the principal officers of the State duties pertaining to the judicial department. As the State Board of Tax Commissioners is neither a legisla' tive body nor a court, it must belong to the executive and administrative department. That it - does -belong to that department we think is too plain for argument. It is charged with executing certain provisions of the revenue law, and when it has performed that duty its function is ended.”
In Evansville v. State (118 Ind., 426), the court said: “The power to appoint to office is an executive function, and while the legislative may provide by law for the appointment of all officers not provided for in the Constitution, the appointing power must be lodged somewhere within the executive department of the government.” (And see State v. Denny, Ib., 382; Evansville v. State, 426; State v. Denny, 449; and State v. Hyde, 121 Ind., 20.)
“These supervisors, although intrusted with a certain discretion in the performance of their duties, are strictly executive officers. * * * Their duties relate to no judicial suit or proceeding, but solely to the exercise by cith zens of political rights and privileges. We are unanimously of opinion that the power of appointing such officers can not be conferred upon the justices of this court without violating the Constitution of this Commonwealth. We can not exercise this power as judges, because it is not a judicial function.”
In Jones v. Perry (10 Yerger (Tenn.), 59), [30 Am. Dec., 430], the court said:
“The whole judicial power of the State being expressly invested in the courts by the Constitution, the exercise ,of it by the Legislature transcends the power intrusted to it by the Constitution, and can not be legally carried into effect.”
In 37 Fed. Rep., 648, under the Federal Constitution, which contained no such inhibition as that contained in our organic law, it was held that the Pension Bureau was not a court, and no officer thereof could be invested with judicial functions; that Congress, therefore, could not authorize the attendance of a witness before a pension examiner to be compelled by the district court.
So in Kilbourne v. Thompson (103 U. S., 168), it was held that Congress could not punish as for contempt a witness who refused to testify concerning transactions of persons whose conduct was then under investigation by a judicial
In-Field v. Clark (143 U. S., 692), it was s'aid: “Congress can not under the Constitution delegate its legislative power to the President.”
In Cooley’s Constitutional Limitations (p. 104) it is said, speaking of the legislative department:
“But the apportionment to this department of legislative powers does not sanction the exercise of executive or judicial functions, except in those pases warranted by parliamentary usage, where they are incidental, necessary or proper to the exercise of legislative authority, or where the Constitution itself, in specified cases, may expressly permit it.”
And on page 108 he says: “The legislative power we understand to be the authority under the Constitution to make laws, and to alter and repeal them;” and quotes from Chief Justice Marshall: “The difference between the departments undoubtedly is that the legislative makes, the executive executes, and the judiciary construes the law.”
There are, it is true, cases in other States in which a different view is taken of this question. In many of them the question presented may readily be distinguished from that presented for decision by this court. For example, the Maryland case (Baltimore v. Police Board, 15 Md., 376), [74 Am. Dec., 572], arose under a constitutional provision) which provided merely that “the legislative and executive and judicial powers of government ought to be forever separate and distinct from each other” — a provision containing no express inhibition, but merely a declaration as to what was proper. And in Oregon, from which State a case is cited (Biggs v. McBride, 17 Ore., 640), the decisions of the court are directly contrary to the view expressed by
Section 59 of the present Constitution, as to local and special legislation, is an illustration of this. In that section, twenty-eight subjects are enumerated in regard to which local or special acts are forbidden to be passed by the General Assembly; and in the twenty-ninth clause it is provided: “In all other cases where a general law can be made applicable, no special law shall be enacted.”
To show the tendency and policy of the Kentucky court upon this subject, the case of City of Louisville v. Cochran (82 Ky., 15), may be cited. There the General Assembly had passed an act with relation to back taxes in the city of Louisville, which prescribed the form of the petition to recover them, that only certain defenses should be allowed by the court, that all affirmative allegations of the answer should be held controverted, and the tax-bills be evidence of every fact necessary to entitle the city to recover. The act was held to be unconstitutional and void. The opinion by Chief Justice Hargis admitted that the Legislature might by law make the production of certain documents prima facie evidence of certain facts, but held that it could not dispense witlq allegation of essential facts necessary to
And the court continued, quoting from Mr. Webster: “If .such results as this act seeks to accomplish could be reached by the methods it prescribes, ‘it would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form and idle ceremony. Judges would sit to execute legislative judgments and decrees, not to declare the law or administer the justice of the country.’ ”
In Johnson v. Ferrell (8 R., 218), the Cochran case was approved of and followed in an opinion by Chief Justice Pryor.
In Slaughter v. City of Louisville (89 Ky., 123), this court, in an opinion by Judge Bennett, recognizing the binding force of the constitutional provision, interfered to prevent an encroachment by the Legislature upon the power of the executive. In that case the inquiry was, “Can the Legislature, in order to authorize the collection of ad valorem taxes, fix the valuation upon the property to be assessed?” Said the court:
“It seems to be well settled that the Legislature, as the law-making department of the State government, has no constitutional power to fix the valuation of property which is to be taxed upon ad valorem principles. The reason for this rule is, that the legislative department has no judicial, executive or ministerial powers, and as the valuation in this State belongs to the ministerial powers, of government it follows that the Legislature has no constitutional power to make the valuation.” ***“*** the*121 Legislature having no judicial, executive or ministerial power, can not make the valuation; but the valuation must be made by some person authorized to exercise in this State-ministerial power, and such person is the assessor.” (Citing People v. Hastings, 29 Cal., 452, and People v. S. F. Savings Union, 31 Cal., 138.)
And in Morgan v. Vance (4 Bush, 323) it was held that the Legislature could not by statute remove the disabilities incurred by dueling, that power belonging to the executive.
An apparent exception to the rule is found in the case of the county courts. That arose, and is justified, in this way: Prior to 1792, when Kentucky formed a part of the territory of Virginia, the county courts of that State were not only courts of justice, but were clothed with executive and fiscal duties, and, from the time Kentucky became a State, had continued to exercise those powers and perform those duties. And so in Pennington v. Wool-folk (79 Ky., 13), Chief Justice Cofer concluded from this unbroken practice of nearly eighty years, uniformly acquiesced in by all the departments of the government, during which period the Constitution had been twice amended and re-adopted, that “the convention must be presumed to have been well acquainted with the fact that these nonjudicial powers had been conferred by various acts, and were being exercised by the county courts, and the re-adoption of the first article in the very words of the former Constitution, was a virtual recognition of the validity of the statutes by which these powers have been, from time to time conferred;” and that “the county court must be regarded, as respects a number of. matters local and exceptional in their nature, as excepted out of these provisions of the Constitution.” The present Constitution
But this court has never, until the case of Sinking Fund Commissioners v. George and this case, overlooked an encroachment by the Legislature upon the functions of either the executive or judicial departments.
Says Mr. Cooley (Const. Lim., page 105): “Every positive direction in the Constitution contains an implication against anything contrary to it which would frustrate or disappoint the purpose of the provision.” And again (page 78): “When the Constitution defines the circumstances under which a right may be exercised, * * * the specification is an implied prohibition against legislative interference to add to the condition.” Now, by section 153 it is declared that, “except as otherwise herein expressly provided, the General Assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections,” etc. It seems to me clear that, in a grant of power to provide for the manner of voting, the framers of the Constitution and the citizens whese votes gave that instrument vigor as organic law could not have dreamed that they were conferring upon the Legislature itself the power of electing to office. The grant of this power, it seems to me, directly implies a negation of the power of the legislators themselves to do the voting, the manner of which they are authorized to provide for. But if the Constitution did so authorize them, have they followed the behest of the general law providing for the manner of voting? Is it pretended that, in this case, election officers were appointed by the county court, or that the members of the Senate and House of Representatives voted by the secret Australlian ballot? The record shows the contrary. And the contention that
The General Assembly, wherever named in the Constitution, is either authorized or directed to “provide by law” (secs. 136 and 147), to make “provision by law” (sec. 185), or to “provide by appropriate legislation” (sec. 183), for the purposes authorized by the Constitution; or, it is forbidden to pass an act as to some designated subject (secs. 59, 60); or, its power is limited as to certain matters, such as the laying out of new counties, removing of county seats (secs. 63, 64), and as to the exercise of various other functions uniformly recognized as parts of the legislative power. From this it seems clear that the makers of the Constitution intended the Legislature to discuss and enact laws, and to do nothing else.
If the Legislature may provide for the election by itself of these officers, it undoubtedly may, under section 107, which authorizes it to “provide for the election or appoint
Legislative sessions are limited in duration to ■ a brief period. With a constantly increasing list of offices to be filled by that body, the time for the performance of legislative functions — for the discussion and enactment of laws— will be more and more encroached upon by the usurpation of administrative functions, and I look with dismay to the character of legislation we may expect under such circumstances.
It is not to be supposed for a moment that, in vesting the General Assembly with legislative power, it was imagined by the Convention or the people that that body, by the mere passage of a so-called act conferring upon itself powers which properly belonged to the other departments, could usurp their functions. If it can do so, then we do not live under a constitutional government, but the General Assembly, like the British Parliament, is supreme.
It was held in the George case, approved in the case at bar, that “the Legislature, unless inhibited by the Constitution” (and the opinion holds that there is no inhibition) “may exercise its power in either of the three modes: 1. It may by a statute create and name persons who are to fill it” (citing authorities); 2. It may by law create an office and provide that it shall be filled by election or appointment by the Legislature in joint convention assembled,” etc., etc.
Moreover, this dictum is in direct conflict with the case of Clark v. Rogers (81 Ky., 44), in which, in an opinion by the chairman of the Board of Election Commissioners created by this act, it was held that the Legislature could not, without a local vote upon the question, when changing a town government by trustees into a city, continue the old trustees as councilmen under the new charter. Said Judge Pryor in that case:
“Under our elective system, by reason of the provision of the Constitution in regard to the election of officers for towns and cities, and other provisions of that instrument relating to State and county officers, the Legislature has no power to appoint to office, or to continue in office, such officers as by the provisions of the Constitution are made elective; and the attempt to exercise such a power by legislative enactment is in plain violation of its provisions. Section 10 of article 6 of the Constitution provides that “The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district, ministerial and executive officers as shall from time to time be necessary and proper;’ but officers required to be elected by the Constitution can not be*127 appointed to or continued in office by legislative enactment, without consulting the popular will.”
This opinion clearly holds that, even under the third Constitution of this Commonwealth — far more loosely drawn in regard to restrictions upon the powers of the Legislature than the present Constitution — the Legislature, under a grant of power to provide for the election or appointment of an officer could not itself elect or appoint to the office, and this by virtue of a provision which is copied in section 107 of the present Constitution.
It seems to me further, that the resolution to meet in joint assembly, for the purpose of electing these commissioners, was an “order, resolution or vote,” within the meaning of section 89 of the Constitution, which requires that “every order, resolution or vote in which the concurrence of both Houses may be necessary, except on a question of adjournment, or as otherwise provided in this Constitution, shall be presented to the Governor, and, before it shall take effect, be approved by him,” etc., etc., and that the meeting of the Houses in joint assembly was, therefore, unauthorized and ineffectual. A meeting in joint assembly might have been provided for in the act itself, but this was not done. Not being done, the resolution to meet in joint assembly was an addition to the law providing the means of its being put in operation, and should have been submitted to the Governor.
But I do not care to take time in discussion of this and a number of other objections which have been urged to the act. By far the most serious and weighty objections to the act, it seems to me, are its legislative usurpation of executive power and function; its invasion of the right to free and equal elections, guaranteed by section 6 of our Bill of Rights, and its unwarrantable interference with
Judge Cooley says: “All regulations of the election franchise however, must be reasonable, uniform and impartial, they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do they mtist be declared void.” This language has been approved by this court in City of Owensboro v. Hickman (90 Ky., 635); Cooley’s Con. Lim., 758; Capon v. Foster, (12 Pick., 483.)
This court, in Commonwealth v. McClelland (83 Ky., 688), said, commenting on this section of the Bill of Rights: “Elections are free and equal only when all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, and when the polls are in each county and in each precinct alike freed from interference or contamination of fraudulent voters,”
Nor is it an answer to this to say, as is said in the opinion of the majority: . “And if it be said the county board owes its existence to the State board, composed wholly of members of one political party, it may be answered the county judge is usually elected with reference to his party affiliation. But the truth is neither the old or the new law could or does fully accomplish the object of wholly divesting the appointment of election officers from party bias or influence; and it would be difficult to frame a law that would do so. It would, therefore, be futile for this court, even if the subject was within its proper sphere, to pro
It is said in the opinion that we may not “pronounce a statute unconstitutional and void because it may, in opinion of the court, be impolitic, unjust or oppressive, or because it appears to violate what might be deemed fundamental principles, or what is called the 'genius and spirit of our institutions.’ ” Fundamental principles, in this Commonwealth, are the principles of the Constitution. The genius and spirit of our institutions is the genius and spirit of the Constitution. And in this view we may in
The field of inquiry presented by this case is so wide that I have not attempted to cover it. I have but attempted to outline my views upon the subject. The objections to the act upon the ground that it invades the right of free and equal elections have been barely indicated. Its provisions are so plainly and so unmistakably vicious that they may be seen of all men who will take the trouble to compare the two laws.
For the reasons stated, and others which lack of time prevents me from stating, I dissent from the opinion of the majority.
Judge Burnam concurs in this dissenting opinion.