Ragland v. Anderson, &C.

• Citation: 125 Ky. 141
• Parties: Ragland v. Anderson, &c. Tinsley, Clerk, v. Keown
• Decision Date: 20 March 1907
• Court: Court of Appeals of Kentucky

125 Ky. 141

Ragland v. Anderson, &c.

Tinsley, Clerk, v. Keown

Court of Appeals of Kentucky.

March 20, 1907.

Appeals from Butler Circuit Court and Ohio Circuit Court.

JOHN M. GALLOWAY, Circuit Judge.

From the judgment in favor of plaintiffs in each case defendants appeal. Affirmed.

LEWIS McQUOWN, BARNETT & SMITH and M. L. HEAVRIN, attorneys for appellants.

JAMES S. MORRIS, attorney for appellants.

W. A. HALBERT and WORTHINGTON & COCHRAN for appellees.

W. H. HOLT and GEORGE DuRELLE for appellees.

OPINION OF THE COURT BY JUDGE BARKER — Affirming.

These cases involve the constitutionality of an act of the General Assembly of the commonwealth of Kentucky, entitled "An act dividing the State of Kentucky into 100 representative districts," approved March 23, 1906 (Acts 1906, p. 472, c. 139). They were heard together, and, as they involve the same question, will be treated as one case in this opinion.

In the first case, S. A. Anderson filed a petition in equity in the Butler circuit court, alleging that he was a citizen, taxpayer, and voter of that county; that he possessed all of the qualifications to be a representative in the Legislature of Kentucky, and was an announced candidate for the Republican nomination for the office of representative from the district composed of Butler and Edmonson counties; that by an act of the General Assembly of May 3, 1893, Butler and Edmonson counties constituted the Twenty-Fifth legislative district, which was entitled to have one representative in the Legislature; that by the act of March 23, 1906, Ohio county was joined with Butler and Edmonson counties, and designated as the Twenty-Sixth district; that the defendants (appellants) were the Republican chairmen of the three counties, and under their party law constituted the committee of the district thus created, and that this committee have ordered a primary election to be held in the three counties to name a Republican candidate for the office of representative; that the plaintiff (appellee) is a resident of Butler county, and entitled to be elected by the voters of Butler and Edmonson counties; that the defendants are proposing to and will hold a primary election for representative for the district composed of Ohio, Butler, and Edmonson counties; and that the plaintiff will be compelled to submit his claims to the voters of the three counties, instead of to the voters of Butler and Edmonson counties, unless the defendants are enjoined from so doing. In the second case, the appellee Keown filed a petition in the Ohio circuit court, averring that he was a citizen, taxpayer, and voter of that county, and possessed all of the qualifications of a representative of the Legislature of Kentucky, and he seeks an injunction against the clerk of Ohio county restraining him from refusing to place his name upon the official ballots of that county, and also to restrain him from placing the names of candidates from either of the other counties — Butler or Edmonson — on the official ballots of Ohio county.

In both petitions it is alleged that the act of March 23, 1906, is unconstitutional and void, because it violates section 33 of the Constitution of Kentucky, in that the representative districts constituted by it are grossly unequal both in population and area. In speaking of the inequality of the act under discussion it is alleged as follows:

"It not only in many instances joins more than two counties together to form a representative district — in some cases three, as in the so-called Twenty-Sixth, Seventy-Third, and Ninety-Fifth districts; in some, four, as in the so-called Seventieth and Seventy-First districts — but many of the districts are grossly and outrageously unequal in population, and so much so as not to approximate equality, but shows plainly that the alleged law does not follow even the principle of equality but violates it so grossly as to show that the principle and constitutional rule of equality was not applied at all, but entirely ignored. Thus, according to the census of 1900, Kentucky had a population of 2,147,174, making the average for a representative district 21,471. Under said invalid act 24 of the 100 districts named in it have a populntion and area as follows:

                District.  County.   Population.  Area
                  99       Spencer     7,407      204
                  25       Wolfe       8,764      239
                  29       Hancock     8,914      195
                  41       Bullitt     9,602      301
                  57       Anderson   10,051      224
                

                  30       Meade      10,553      304
                  32       Larue      10,764      299
                  78       Boone      11,170      242
                  21       Simpson    11,624      190
                  63       Jessamine  11,925      160
                  67       Garrard    12,042      234
                  85       Bracken    12,137      193
                 ____     _________  ________    _____
                  12       Counties  124,933    2,785
                

"These counties are hardly entitled to 6 but are given 12 representatives.

"Average, one county to district; population, 10,411; area, 232.

                District.  County.              Population.   Area
                  100      Elliott and Carter     30,615       770
                   88      Fleming and Bath       31,808       589
                    3      Graves                 32,204       550
                   89      Lewis and Greenup      33,300       794
                   71      Jackson, Owsley
                           Perry, and Letcher     34,883     1,240
                   97      Floyd, Knott, and
                           Magoffin               36,262     1,028
                   10      Christian              37,962       694
                   98      Boyd and Lawrence      38,446       608
                   95      Pike, Johnson, and
                           Martin,                42,196     1,250
                   69      Whitley and Knox       42,387       930
                   70      Laurel, Rockcastle
                           Clay, and Leslie       53,125     1,610
                   26      Ohio, Butler, and
                           Edmonson               53,263     1,241
                  ____    _____________         _________  ________
                   12      29 counties           466,451    11,304
                Average    2.41                   38,871       942
                

"These counties are entitled to 22, but are given 12 representatives.

"These groups have a population and area as follows:

                                                 Population.   Area
                The first group................   124,933      2,785
                The second group...............   466,451     11,304
                                                  _______     ______
                    Difference.................   341,518      8,519
                

"Spencer county, with a population of 7,407, and an area of 204 square miles, is given one representative, while Ohio, Butler, and Edmonson, with a combined population of 53,263, and an area of 1,241 square miles, is given only one representative.

                District.  County.               Population.   Area.
                  99       Spencer                  7,407      204
                  26       Ohio, Butler, and
                           Edmonson                53,263    1,241
                                                 ________   ______
                                                   45,856    1,037
                

"The Twenty-Sixth district is more than seven times as large in population as the Ninety-Ninth, the difference being more than enough to constitute two average districts. By this arrangement one citizen of Spencer county has nearly as much voice in the Legislature as eight citizens of Ohio, Butler, and Edmonson.

"The said 100 districts attempted to be created by the said unconstitutional act are not by a great deal as nearly equal as may be without dividing any county, except where a county may include more than one district; and the state can be divided into 100 representative districts, which would be approximately equal in population, without dividing any county, except where a county may include more than one district."

Without analyzing the allegations of the petitions with overnice particularity, it is deemed sufficient to say that, in our opinion, they contain such a statement of facts with reference to the inequality of the representative districts of the state that the demurrers, which confess these allegations, raise sufficiently for adjudication the validity of the act which is assailed. The allegations upon which is predicated the infirmity of the act are substantially the same in both petitions. General demurrers were filed to each of them, and overruled by the trial courts. The defendants declined to answer, and thereupon judgments were entered holding the act of the General Assembly under discussion invalid, and perpetuating the temporary injunctions which had been granted at the commencement of the actions. From these judgments the defendants have appealed.

Section 33 of the Constitution is as follows: "The first General Assembly after the adoption of this Constitution shall divide the state into thirty-eight senatorial districts, and one hundred representative districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district, which district shall constitute the senatorial and representative districts for ten years. Not more than two counties shall be joined together to form a representative district; Provided, in doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the General Assembly shall then, and every ten years thereafter, redistrict the state according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of population should be unavoidable, any advantage resulting therefrom shall be given to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous."

The first proposition with which we are confronted is raised by the insistence of appellants, that the question involved here is political, and not judicial, and that the courts have not jurisdiction to review the acts of the General Assembly in the matter. To this we cannot agree. It is for the courts to measure the acts of the General Assembly by the standard of the Constitution,...