*1
then,
Granted,
argument
for the sake
Much the
reasoning applies
to dis-
that
a
Hershey.
the will
created
tinguish
of Charles Potter
the cited case of Lewis v.
trust,
position
trouble
own would have been. leaving wholesome of law therefore, rights hold, cause of hanging liabilities We mid-air. pos- There is to recover no valid why action the remaindermen reason it should apply vested in them session of the estates case. upon the will Potter accrued of Charles Judgment affirmed. tenant, Potter, and is the life
death of Ruth barred the statute of limitations. limita- suggested
It is order for necessary
tions to run the trus- complete
tee’s be to exclusion Richard, instead
Josephine and whereas
they all since enjoyed the income appro- type distinction is
1941. This
priate only when a trustee’s actions al., Appellants, Tom RANEY et life unequivocal sufficiently clear trust were signify repudiation trust and Treasurer, STOVALL, Thelma Common running commence the limitations. Kentucky. Appellee. wealth of inapplicable because the death here after Ruth Potter the trust created the will Appeals Kentucky. Court of existed, longer of Charles Potter Oct. nothing repudiated except to be there was duty to effect a settle- the trustee’s final And in latter there
ment. purpose any doubt as to the
never trustee’s paying only Josephine the income. knew
Richard had been re- corpus receiving and were
fused the trustee’s
income was claim with corpus
respect' was adverse repudiation of their own.
therefore *2 Cox,
Louis Logan, Hazelrigg A. William Cox, Pikeville, & Frankfort, E. Sanders, J.' appellant for Raney. Gen.y Atty. Hunter Whitesell, B.. Asst. Frankfort, appellant Matthews. Marshall, Funk, & F. Chancellor Thomas Marshall, Frankfort, appellee. CLAY, Commissioner. presents declaratory judgment action significant questions. The first
two whether the State a warrant is- legality of Finance. the Commissioner sued so, issue may properly ultimate she do warrants she must honor such is whether Raney for plaintiff drawn in favor as a allowances due him questions under These arise state senator. following circumstances. Raney duly elected to Senate year His November 1959 for four term. approved qualifications were body at of the Gen- by that the 1960session throughout eral served session. 1, 1960, he April appointed
On County per- Pike deputy sheriff in of that through the duties office formed De- permissible 1961. Under a cember the terms of section 165 of struction Kentucky Constitution and KRS 61.080 and 61.090, deputy office of senator sher- incompatible iff office second vacates the first. 13, 1962, February being faced with adopted the Senate question, resolution Raney qualified recognizing sena- tor. Finance in due Commissioner of recognizing the Finance Commissioner compensa-
course covering issued warrants final arbiter of the of a Raney plaintiff allowances to which the Commonwealth. *3 jure would sena- be entitled if de he was It is true is directed to ac- the Treasurer part tor held both period of the cept Department by of warrants drawn (January 29, 1962). offices March 1962to ; (KRS 41.150) Finance not withdraw war- these Treasurer refused to honor public moneys except such warrants of ground rants on a matter law that as (KRS ; 41.110) consti- and such warrants plaintiff Raney the office of had vacated tute pub- for the of disbursement April 1, payment state senator on and lic money (KRS 41.120). To the extent suit was illegal. claim would be This Department of to Finance is authorized then brought Raney and the Commission- certify a claim from an correctness of er of against Finance Treasurer to accounting standpoint, bookkeeping and quire claim, pay enjoin her to and to must warrant the Treasurer- honored her refusing checks to issue specific question to Depart- properly presented by the warrants validity grounds a claim of on constitutional ment of adjudged Finance. The Chancellor reposed by is not statute in either the De- (1) question Treasurer the consti- partment of Finance the State Treasurer. tutional legality against of the Com- claims Such right of either or both stems from monwealth, (2) plaintiff Raney and general provisions of both the Constitution entitled to the and allow- public and the statutes which a basic fix represented ances by the warrants involved expenditure to the of controversy. in this public funds. appellants’ that the contention The first sentence of section 230 of the any Treasurer must honor warrant issued provides part: money “No Department of Finance. The basis Treasury, shall be drawn from the State argument pertinent is that statutes except pursuance appropriations made Department vest the with exclusive author by law; Similarly 44.010 KRS ity propriety to determine the recognizes proper upon the claims State treasury, require against of claims Treasurer are those “authorized law” and pay the Treasurer as ministerial officer to prohibits 41.130(2) KRS the issuance of a absolutely Department’s them on the order. pay warrant unless the to it has “appropriated by been Since law”. the Con statutory specifically law neither supreme stitution is the of the Common law Department grants Finance the Newman, (see wealth Rhea v. power contended nor denies exclusive L.R.A.,N.S., 989), the ex the Treasurer to claims. penditure public in violation funds there While of Finance is des- Commissioner of is forbidden. chief ignated the financial officer of the duty protect original proposition, with the to its financial As an State it would be pow- (KRS 42.020), direct curious indeed if a interests constitutional officer who immediately given with to claims against charge receipt ers he is preaudit (1) expenditures are: the State disbursement all funds of the Common- 42.030(e)), (2) powerless wealth (KRS examine state- would be indebtedness, validity and if found “cor- of a claim against ments appellants there is a sufficient it. rect” and amount While contend that vir- in the pay budget reorganization the claim unit tue of a 1936 act the Treasur- chargeable, effectively stripped claim is to issue er was which the war- of everything but duties, (KRS the State Treasurer ministerial rants we nothing 45.- find provision There 220(1)). extinguishes obligation law statutes that ultimate brings us to the under the Constitution function must question of of- oath formity his constitutional Department of honor warrants of the instrument). of that (section fice Raney. plaintiff Finance drawn favor recognized consistently This Court purpose outlining this contro For the dis charged with public officers versy opinion, we ventured earlier in the funds bursement interpretation an of the Constitution ground validity a claim on incompatibility the statutes Norman, State violates the Constitution. deputy sher of senator offices *4 Managers Kentucky Board of Auditor v. are appellants’ contention that we iff. Ky. Exposition, 93 Columbian World’s authority judicial without make such to Ky. Newman, 153 901; Rhea v. 20 S.W. plac determination because Constitution 989; Met 154, L.R.A.,N.S., 604, 156 44 government es in another Ky. S.W.2d Howard, 498, 201 calf v. authority absolute and final to decide the Gerard, 197; Ky., S.W.2d Reeves v. issue. provides in Section 38 of Constitution our Appellants the Treasurer contend part: perform, that she would ministerial duties to “Each of the General house honoring these her bond in not be liable on * * * judge of the warrants, fails to show and that the record of its members of the Attor- advice acting she was by the not shown ney (Though General. The before us has not heretofore Attorney record, had apparently General presented Kentucky. been or decided in incompati- her the offices advised incompatibility While officeshas been that these deciding Assuming without ble.) cases, considered in a number of and it has correct, they resolve premises do not are vacancy been held that a in an earlier of- with concerned not here basic are issue. We incompatible fice occurs when an office is of the nature the characterization of subsequently accepted, we have not had a her duties, protecting nor with Treasurer’s involving ques- a determination of that le- of her source with the liability, nor legislative body tion with to protect- concerned gal are advice. We may one of its own members. We even as- expenditure illegal public from the ing sume, Howell, as was stated in Meagher v. public funds. ju- 188 S.W. that from a standpoint dicial of an in- fixes a with re- The Constitution compatible vacancy office would create a surely spect public expenditures to the office of point The Senate. whole must the code of conduct of consti- infuse appellants’ argument that a branch officers, particularly charged those tutional legislature, of the vested with authority full designa- with control The funds. Constitution, by the has made a conclusive specific tion the legislature of certain contrary determination with which we the Treasurer duties powerless are to interfere. (under Constitution) section 93 of the extinguish implied problem This obligations of the has been considered in jurisdictions. Upon In other office. our the Treasurer what we con- faith, properly, acting good reasoning, sider sound a sub- authoritative ad- judications are ground, ques- stantial constitutional raise a effect that judicial judge determination qualifica- treasury. a claim of its members tions includes the correctly finally The whether or adjudged Chancellor decide not one of them controversy. disqualified phase has become his term of office,-and subject decision is not its own members. necessarily so, court review. for the authority must somewhere, reside departments Substantially the identical situation was government separate must be and dis- Corley, Biggs State ex rel. tinct, independent, and, free while W.W.Harr. A. 415. Del. the courts jealously guard will its. In that case three elected senators powers jurisdictions, will subsequently incompatible accepted had of- pow- infringe upon not to careful fices, but the Senate resolution declared ers, jurisdictions prerogatives no vacancies existed and the three were legislative department.” accepted fully qualified. provi- sions of the Delaware People Mahaney, ex rel. Drake v. practically the same as ours Mich. nine members of the House of both and Representatives were elected under a stat- of offices. It was held n subsequently incompatibility ute declared unconstitutional. jurisdiction that since the sole to determine legislative body those mem- *5 qualifications plac- the of its members was qualified, bers as elected .and it ed the Delaware Constitution in the authority was held that the courts had no Senate, power pass the courts had no to review this determination. In that case upon question the of whether or not the pointed it was out that the legislature arid acceptance disqualified of another office might conflicting courts views (page A.) member. court said : qualifications as to the of a member of power but that the exclusive question “When a an im- involving final make the determination had been plied resignation (it of one office not lodged legislature the Constitu- being legisla- that of a member aof tion. It was also stated acceptance ture), by the of another tha.t. it made difference no whether office, to the courts for question passed upon by legislative body decision, jurisdiction the courts have question was a of law or fact. complete in the full and of sense hav- authority power ing to decide and Gilmore, rel. Martin v. State ex to enforce execution of what Kan. was whether or not decreed, difficulty But, and no arises. the court had- to determine that rep- office is that of a when first . legislature a member of the had forfeited or senator resentative General. office of violation aof stat- Assembly, and the arises court (page ute. Therein the said 554): acceptance of another of- implied declares, operates as an resignation fice “The constitution article * ** first, Courts, or- ‘Each house section shall be n , constituted, proceed, elections,' returns, dinarily may judge adjudicate, qualifications its hear and own members.’ provided by grant power, tribunals This is a not the the Con- consti- for the determination of tutes each house the ultimate stitution such tribunal They jurisdiction qualifications question. have no to the of its own mem- as * * * power And this reason that another and dif- bers. is not possesses juris- when it has tribunal the sole exhausted once been ex- ferent is, ercised, diction, the senate or and a member admitted the house to his be, provi- power, . under that is a continuous the case seat. , through gives the entire term. At 'any of the- Constitution which runs sion. . .time, and at all times legislature house of the thé right,' each terms to, office, empowered authority to-.judge each house is of. the' .and. present elections, qualifications pass qualifications returns and n -38 of the Constitu- section By its own members. section ' the'power'were limited to If article, of a federal thereof, specified section He member’s seat. office vacates a mem- it would be as soon exhausted qualified, this ceases to accepted bership of each at house mem- judge. it is the If ousts house any accepted beginning given At each term. ber on the claim that has thereafter, events, disqualifying time tri- due to office, court other a federal uncertainty with there could exist extreme it can him. bunal reinstate refuses validity of votes cast member, beyond his seat is to oust practical questioned The most members. (Our emphasis.) judicial challenge.” possible recur- dispelling method of such in recognized in a Court summary proceedings ring is by confusion United volving the Constitution vitally within affected. so Congress and the Federal States powers of certain vesting “qualifica- The broad scope the term pass power to body may exclusive constitute tions” has been in decided cases. members, qualifications of Jones, In Commonwealth v. Bush. authority to thereby court depriving Ky. 725, it stated that term subject. ell v. adjudicate Burch on that “implies presence every Commissioners, Board Election State demands, requisite which the constitution 68 S.W.2d every disqualifica- but also the absence of qual- imposes.” Continuing tion which that, by appellee assum- It is contended *6 important just ifications are as those ing the Senate has the exclusive power initially required. the limit- members, pass upon qualifications the of its appellee contends, section the ed 38 of “qualifications” term is confined the apparent would not fulfill its Constitution specified in 32 of those section the Constitu- purpose. pragmatic clearly and As was so citizenship, age and (which relates to pointed in out State ex rel. Martin v. Gil- residence). matters It is that those said 551, more, Kan. 20 have we controversy in and is not what that above, disqualification alleged quoted the subsequent disqualifica- involved is a here type precisely is the in this section of tion under another the Constitu- the should legislature over which have power the This limited view of tion. jurisdiction. tinuing We conclude Sen- is consistent either legislature properly scope acted within ate authority. reason or authority vested section 38 the Con- question, determining impor- it is stitution. justification to consider the reason tant and work for this scheme. The Appellee suggests action of the requires the active Raney Senate constituted participation continuous of its mem- clear violation of the such bers, particularly when in There session. rectify courts should the error. necessity summary deter- a real the fact that the eligibility qualifica- of their mination wrong decision is no why make a continuing If the tions. should invade what judiciary been des subject litigation members were those as the exclusive domain ignated of another courts, particularly during a session government. Taylor See v. judicial in view of unavoidable particularly Beckham, Ky. 56 delay, the conduct of business could 258. We must assume the L.R.A. Senate disrupted. completely permit faith will not good knowingly provisions. sig- think consideration has a violations other constitutional We this subject bearing matter, to this granted nificant the With people responsibility prescribed reposed As- should be the General the legislature. sembly. are without courts jurisdiction to determina- review solemn exactly This is reached conclusion Ferguson Chandler, Ky. v. S.W.2d when the same constitutional Raney appellant is our sections were with reference considered entitled to allow- duties and appellee ances withheld and the war- agriculture, commissioner of an officer Department rant issued of Finance named with the treasurer Sections judg- must be honored. this extent the To In construing reorganization 93. ment must be reversed. act of the duties of the judgment part is affirmed in agriculture, commissioner of held Court part, versed in amend with directions to Section 91 of the Constitution opinion. judgment consistent with this commissioner duties of the define expressly privilege (cid:127)but conferred this MONTGOMERY, J., dissenting. Assembly, the General and that the statute should
enacted General to in the com be looked to ascertain order MONTGOMERY, Judge (dissenting). responsibilities. The missioner’s duties and respectfully I dissent from so much Ferguson v. would seem Chandler decision majority opinion as holds decisive It is neither here. state treasurer a claim as discussed, distinguished, nor overruled in opin- being majority unconstitutional. The majority opinion. result For the same implied. ion holds that such county treasurer, concerning the see Breat My objection is (1) two-fold: The con- County Cockrell, hitt 63 S.W. sup- stitutional section relied on does not 2d 92 A.L.R. implication; port (2) the Con- The conclusion that the Ferguson v. expressly provides stitution that the duties *7 decision is Chandler sound and should con treasurer shall be fixed statute is fortified trol here reference and have so been fixed. subsequent reorganization various statutes implication The fallacy in the which make commissioner of finance Constitution, on, 230 of the Section relied state, the chief financial officer of prohibition pay- deals with charged protecting the financial in money Treasury from the ment unless expressly directing terest of state appropriated. This authorizes the treasurer payments of claims the treasurer on s question a claim on ground warrant the commissioner. Car appropriated has not been it. Statutes, 4688; Kentucky roll’s Section ques- does not authorize the treasurer 41.120, 41.150(1), and KRS 41.160. KRS being constitutionally tion a claim as in- expressly provides 41.120 that the warrant valid. of the commissioner of finance shall “con full and stitute sufficient supported by This conclusion Sections public the disbursement and 93 money in the amount set forth.” and other treasurer officers It, therefore, respon- providing their concluded that “duties the treas- * responsibilities prescribed by duties and urer’s with sibilities spect delega- processing purely claims are inclusion min- law.” long appropriated to the General isterial so as there are funds, a clear that the treasurer Constitution is indica- had twice that the duties on consti- grounds. and such other named officers treasurer tutional