Atherton v. Fox

Decision Date07 June 1932
Citation245 Ky. 718,54 S.W.2d 11
PartiesBefore Judge Rees of the Court of Appeals of Kentucky. v. FOX et al. ATHERTON et al.
CourtKentucky Court of Appeals

Before Judge Rees of the Court of Appeals of Kentucky.

ATHERTON et al.

v.

FOX et al. Court of Appeals of Kentucky
June 7, 1932

Action by Peter Lee Atherton and others against Henry I. Fox and others, as members of the Fiscal Court and Board of Election Commissioners of Jefferson County. The chancellor refused a temporary injunction, and plaintiffs move for an order directing the chancellor to issue such writ.

Chancellor directed to issue the writ.

CLAY and PERRY, JJ., dissenting.

David R. Castleman, Elwood Hamilton, Richard H. Hill, Leon P Lewis, William T. Baskett, and Robert G. Gordon, all of Louisville, for plaintiffs.

Edward P. Humphrey, Shackelford Miller, Jr., Eugene R. Attkisson Mark Beauchamp, Lawrence Mackey, S. Merrill Russell, and J Blakey Helm, all of Louisville, Bailey P.

Wootton, Atty. Gen., and Wm. Attkisson, Asst. Atty. Gen., for defendants.

REES J.

At its 1932 session, the General Assembly passed an act known as Senate Bill 333 (Acts 1932, c. 84), entitled: "An Act relating to registration and other means of identification of voters for elections in counties of the Commonwealth containing a city of the first class; providing the revenue to defray the expenses of such registration; repealing Chapter 48 of the Acts of the General Assembly of 1930 relating to and governing registration of voters for elections in cities of the first class to the extent that same relates to the registration of voters in cities of the first class for the general November election of 1932 and thereafter."

The act provides for the registration of all voters in counties containing a city of the first class, creates the administrative machinery necessary to carry out the provisions of the act, and requires the fiscal court of each county to which it is applicable to levy a tax sufficient to defray the expenses of installing and maintaining the system of registration. The act repeals chapter 48 of the Acts of 1930, which provides for the permanent registration of voters residing in cities of the first class. It provides for the creation of a county board of registration commissioners, consisting of four members, to be divided equally between the two dominant political parties, and to be appointed by the board of election commissioners of the county from lists furnished by the chairman of each of the county and city executive committees of such county. Louisville is the only city of the first class in the state, and the operation of the act is thus limited to Jefferson county.

The plaintiffs brought this action against the members of the fiscal court and the members of the board of election commissioners of Jefferson county to enjoin the latter from appointing a board of registration commissioners and the former from levying a tax to raise revenue to defray the expense of installing and maintaining the registration system provided for in the act, on the ground that the act contravenes several constitutional provisions and is invalid. The chancellor held the act valid, and refused to grant a temporary injunction.

The case is now before me on a motion for an order directing the chancellor to issue a temporary injunction herein. All members of the court sat with me on the hearing of the motion, and a majority of the judges are of the opinion that the act in question is invalid and that the motion should be sustained.

Section 59 of the Constitution provides: "The general assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: *** 20. To provide for conducting elections. ***" Subsection 29 of section 59 reads: "In all other cases where a general law can be made applicable, no special law shall be enacted." Section 147 of the Constitution reads in part: "The general assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more; and may provide by general law for the registration of other voters in the state." In construing section 59, it has been held repeatedly that the General Assembly is not prohibited from making classification of persons, places, and things for purposes of legislation provided that such classifications are based upon natural and reasonable distinctions. Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460.

Under the act in question, the residents of Jefferson county living outside the corporate limits of the city of Louisville are required to register as a condition precedent to their right to vote. There is a considerable area of Jefferson county devoted to farming operations, and there are three sixth-class cities in that part of the county outside the corporate limits of the city of Louisville to which the provisions of the act apply. There is no law now requiring the registration in any other county of voters residing outside the corporate limits of cities of the first, second, third, and fourth class.

It is argued that the act is not discriminatory and does not contain any unreasonable classification, but that, on the other hand, on account of the density of population in cities of the first class and in the territory immediately adjacent to the corporate limits of such cities, there are greater opportunities for...

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