Buckner, &C., v. Gordon, &C

• Citation: 81 Ky. 665
• Parties: Buckner, &c., v. Gordon, &c.
• Decision Date: 12 April 1884
• Court: Court of Appeals of Kentucky

81 Ky. 665

Buckner, &c., v. Gordon, &c.

Court of Appeals of Kentucky.

April 12, 1884.

APPEAL FROM CLARK CIRCUIT COURT.

W. C. P. BRECKINRIDGE AND R. W. WOOLLEY FOR APPELLANTS.

W. M. BECKNER AND C. & T. M. EGINTON FOR APPELLEES.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This is a proceeding to test the right of contending claimants to the office of police judge in the town of Winchester.

In 1840 the charter of the town was amended so as to provide that the trustees should be elected "by the free white male inhabitants . . over the age of twenty-one years, who shall have been bona fide residents of said town at least six months before said election, and shall have paid their poll-tax for the preceding year (whether the same hath been charged by the assessor or not), and also have paid all arrearages and taxes due by them to said town."

On the 14th of February, 1858, the legislature passed an act entitled "An act to establish a police court in the town of Winchester." It enacted that the court "should be called the police court of Winchester," that the "judge and marshal shall be elected by the qualified voters residing within the corporate limits of said town," and that the "election shall be duly advertised, and conducted in the manner prescribed by law for the election of trustees of said town."

At an election held according to law appellant received the greater number of votes, excluding those who had not paid their taxes, and appellee received the greater number of votes, not excluding those who had not paid their taxes. The questions presented are —

First — Did the act of 1858 apply to voters the qualifications prescribed by the amended charter of 1840, or the qualification of voters in elections generally which is prescribed by section 8 of article 2 of the constitution, which is as follows: "Every free white male citizen, of the age of twenty-one years, who has resided in the State two years, or in the county, town, or city in which he offers to vote, one year next preceding the election, shall be a voter; but such voter shall have been, for sixty days next preceding the election, a resident of the precinct in which he offers to vote, and he shall vote in said precinct and not elsewhere."

Second — If the act of 1858 applies the qualifications prescribed in the amended charter of 1840, is that act constitutional?

Upon the first point the inquiry is as to the meaning of the legislature in the use of the term, "qualified voters," used in the first section of the act of 1858. The title of the act is to "establish a police court in the town of Winchester," and in the body of the act the "qualified voters," who are to select the presiding officer of the court thereby created, are required to reside within the corporate limits of the town. At the time of the passage of the act there were but two bodies of electors to which the legislature could have referred — one whose qualifications were prescribed by the act of 1840, who were authorized to vote for trustees of the town, and the other those who were qualified by the constitution to vote in general State elections. There was no general statute law applicable to voters at municipal elections and for municipal officers to which reference could have been had by this enactment. The qualifications for electors fixed in the several charters of the towns and cities of the State are, and were, so variant that no general rule as to qualification can be evolved. The attention of the legislature, at the time of the passage of the act, was directed to the amendment, in effect, of the charter of the town, which contained a description of those who were entitled to vote in such town elections as the charter provided for; and as the act fixes the boundary of the town as the limit of the voting territory, and directs that the election of the police judge shall be "conducted in the manner prescribed by law for the election of trustees of said town," both elections to be held at the same time, it must be presumed that attention was directly drawn to the qualifications for electors fixed in the amended charter of 1840, and that if a different qualification had been intended it would have been so expressed. Any other construction would be the creation of two distinct bodies of electors voting at the same time, within the same limits and upon municipal questions — one body having the qualifications fixed in the act of 1840, and the other the qualifications prescribed for electors at general elections. If such had been the intention its expression would certainly have been explicit. Especially is that true in view of the fact that long prior to and ever since the adoption of the constitution it has been the legislative rule, rather than the exception, to fix in the charters of towns and cities a qualification for electors different from that prescribed in the constitution for State, county, and district electors. We think it clear that the act of 1858 was intended to adopt the electoral qualification found in the amended charter of 1840.

Secondly, it remains to inquire whether the act of 1858 is unconstitutional because it fixes a qualification for electors other than that embodied in the constitution.

Section 8 of article 2 of the constitution, already quoted, and section 6 of article 6, appear to be the only...