Allen v. Cromwell

• Decision Date: 20 June 1924
• Citation: 263 S.W. 356,203 Ky. 836
• Parties: ALLEN v. CROMWELL, SECRETARY OF STATE. CROMWELL, SECRETARY OF STATE, v. MEREDITH.
• Court: Kentucky Court of Appeals

263 S.W. 356

203 Ky. 836

ALLEN v. CROMWELL, SECRETARY OF STATE.

CROMWELL, SECRETARY OF STATE, v. MEREDITH.

Court of Appeals of Kentucky.

June 20, 1924

Appeals from Circuit Court, Franklin County.

Actions by Arthur D. Allen and Hubert Meredith, respectively, against Emma Guy Cromwell, Secretary of State. Judgment for defendant in the first action and for plaintiff in the second action and losing parties appeal. Reversed.

Alex P Humphrey and Alex G. Barret, both of Louisville, and Chester Gourley, of Beattyville, for appellants.

Frank E. Daugherty, Atty. Gen., Hubert Meredith, of Greenville, L L. Walker, of Lancaster, Henry S. McElroy, of Lebanon, S. C. Eaves, of Greenville, I. G. Mason, of Adairville, S. Y Trimble, of Hopkinsville, S. Walton Forgy, of Elkton, and C.J. Waddill, of Madisonville, for appellees.

CLARKE J.

These actions were instituted (the former by a friend and the latter by a foe) to test the validity of House Bill No. 37, adopted at the recent session of the general assembly, and commonly known as "the Seventy-Five Million Dollar Bond Bill." The lower court, being of the opinion that the act is violative of section 51 of the state Constitution, dismissed the petition in the Allen case seeking to enforce the provision for its submission at the state election, and in the Meredith case enjoined its submission.

Section 51 reads:

"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 lower court assigned three reasons for holding the act violative of this section, and counsel for appellees list separately nine other alleged grounds of invalidity, but all of the court's reasons and many of appellee's are found upon analysis to be but variant statements of the single contention that the act, in both its title and body, embraces more than a single subject.

If this is true the act not only is plainly violative of section 51 supra, but we freely concede its submission to the voters in the manner therein provided would be violative of the constitutional guaranty of section 6, that all elections shall be fair and equal.

So the principal question presented, and the first to be decided, is whether the subject of the act is single or multiple, and this depends wholly upon a determination of what is its subject.

It submits to the voters for their decision the single proposition of whether or not $75, 000,000 of bonds shall be issued and sold, and this the appellants contend is the single subject of the act.

But, complying with the provisions of section 178 of the Constitution, the body of the act, after providing in detail for the issuance, sale, and final redemption of the bonds, specifies the several purposes for which the $75, 000, 000 is to be used, and for appellees it is contended that each such purpose is a separate subject.

This precise question has been expressly decided three times by this court (City of Louisville v. Board of Park Commissioners, 112 Ky. 409, 65 S.W. 860; Swann v. City of Murray, 146 Ky. 148, 142 S.W. 244; Ky. L. & P. Co. v. Williams [Ky.] 124 S.W. 840), and each time it was held that the issuance of bonds in the amount proposed was the single subject of such an enactment and the only question that needs be submitted to the voters, even though the money was to be devoted to several distinct and unrelated purposes.

Moreover, in at least two other more recent cases the question has been treated as settled and the issue of bonds declared legal where only the amount thereof was submitted to the voters, and the money derived from the sale of same was to be used for several separate and distinct purposes. Wilkerson v. City of Lexington, 188 Ky. 381, 222 S.W. 74; Snow v. City of Providence, 202 Ky. 627, 260 S.W. 389.

The last of these decisions was rendered by the whole court on March 28th of this year, and since the adoption of this act; and while one member of the court dissented when in the Louisville Case the question was first considered, upon the ground that the subject was multiple because the funds were to be used for sewers and parks and these were different subjects, the majority decision was expressly adhered to and reaffirmed in the Murray Case by the whole court and without dissent.

There is no case from this court holding otherwise, or even criticizing any of these cases, so that, in so far as this court is able to settle any question, it has settled this one, and the Legislature was fully warranted in believing it had the power to submit the proposed bond issue for various enumerated purposes in a single act and by a single ballot, and in devoting much of its recent session to the preparation and passage of this bill for that purpose in response to a state-wide demand that it be done.

But it is urged that other courts have decided the question differently--and so they have--(see Stern v. Fargo, 18 N.D. 289, 122 N.W. 403, 26 L. R. A. [ [[N. S.] 665, and cases annotated in the note thereto), and it is insisted that those opinions are supported by the better reasoning. We might even concede that, too, and it yet would clearly be our duty in the present circumstances to follow rather than overrule such an unbroken line of cases construing our own Constitution, not only because of considerations already suggested, but also because there is no telling how many like issues of bonds may have been marketed by other municipalities upon the faith of these decisions, and without specific approval by this court.

But we need make no such concession, since there is much to be said in support of our position, despite its isolation. The Legislature has plenary power under our Constitution, just as have the various municipalities under their charters, to deal comprehensively and finally with the disposition for legitimate purposes of all available funds. The single power the Legislature lacked to fully carry out the purposes of this bill, and for which it must go to the people, is the power to incur an indebtedness by the issuance of bonds above the amount prescribed in section 49 of the Constitution.

Then again, the thing to be submitted to the people in such circumstances is, according to section 50, the act proposing the issuance of bonds in the desired amount, which act, that section also provides, shall not "take effect" until approved by the voters at a general election, and that:

"No act of the General Assembly shall authorize any debt to be contracted on behalf of the commonwealth except for the purposes mentioned in section forty-ninth," etc.

The only purpose mentioned in section 49 is the issuance of bonds to take care of debt or debts the aggregate of which exceeds $500,000. In our judgment these provisions of our organic law are sufficient to justify this court's conclusion that the single question to be submitted to the people upon such a referendum is whether they favor the act authorizing the issuance of bonds in a given amount; that the subject of such an act is the issuance of bonds, and that the subject is single, without reference to the purpose or purposes for which the funds are to be used.

But, even if this were not true, we feel sure, as already stated, that we should not now depart from the position so long and consistently adhered to, especially as three of the five cases on the subject were considered by the whole court, and, although the court was divided upon its first consideration of the subject, it has been without division in its uniform subsequent approvals of the original majority opinion.

We therefore conclude that the subject of the act is single, viz. the issuance of bonds, even though the proceeds thereof are to be devoted to various unrelated purposes, and that the only thing required to be submitted to the voters for their approval is the act proposing and providing for the issuance of the bonds.

It results from these conclusions: (1) That the body of the act embraces but a single subject, and therefore is not violative of the first part of section 51 supra, and (2) that but a single subject is submitted to the voters for their decision, and that therefore the submission in a single ballot is not violative of the guaranty of section 6 that all elections shall be fair.

The next question for decision is whether the title of the act is plural and violative of section 51 because of references therein to the maintenance of roads. It reads, with references italicized, as follows:

"An act to provide for the execution and sale of seventy-five million dollars ($75,000,000.00) of bonds of the commonwealth, fixing the time when they shall be sold and the use of the proceeds thereof, providing for the application of public funds to the payment of the principal and interest upon said bonds and to the maintenance of roads, to the end that said bonds may be extinguished

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