Board of Penitentiary Com'rs v. Spencer

• Decision Date: 28 May 1914
• Citation: 159 Ky. 255,166 S.W. 1017
• Parties: BOARD OF PENITENTIARY COM'RS v. SPENCER ET AL. [d1]
• Court: Kentucky Court of Appeals

166 S.W. 1017

159 Ky. 255

BOARD OF PENITENTIARY COM'RS v. SPENCER ET AL. ^[d1]

Court of Appeals of Kentucky.

May 28, 1914

Appeal from Circuit Court, Franklin County.

Mandamus by Louis Spencer and others, against the Board of Penitentiary Commissioners. Judgment for the plaintiffs, and defendant appeals. Reversed, with directions to dismiss the petition.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for appellant.

Hazelrigg & Hazelrigg, Scott & Hamilton, and Guy H. Briggs, all of Frankfort, for appellees.

CARROLL J.

The appellee Louis Spencer and several other convicts serving terms of imprisonment in the Kentucky State Reformatory, in behalf of themselves and other convicts, brought this suit against the board of penitentiary commissioners, asking a mandamus to compel the board to set apart and place to their credit as convicts certain sums of money to which they asserted they were entitled under an act passed by the Legislature during the session of 1910. Acts 1910, c. 15. The lower court granted the relief prayed for, and the board of penitentiary commissioners appeal.

On behalf of the board several grounds are assigned why the judgment of the lower court should be reversed, but, as we have concluded that the objection urged to the validity of the act under which the relief was sought and granted is well taken, it will not be necessary to do more than state the reasons that have influenced us in coming to this conclusion.

Section 51 of the Constitution provides: "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 objection to the act of 1910 is found in the failure of the Legislature to conform the act to the mandatory requirements of this section of the Constitution. The title of the act reads: "An act to amend an act entitled 'An act to create a board of penitentiary commissioners and regulate the penal institutions of this commonwealth,' which became a law March 5, 1898." The act then reads: "Be it enacted by the General Assembly of the commonwealth of Kentucky: Section one: That an act entitled 'An act to create a board of penitentiary commissioners and regulate the penal institutions of this commonwealth,' be amended by adding after section one of said act the following." Then follows a section styled section 1a, providing, in substance, that the board of penitentiary commissioners are authorized to convert one of the two penitentiaries into a penal institution to be known as the Kentucky Penitentiary in which shall be incarcerated all convicts of a certain class. In the other penitentiary, which was to be known as the Kentucky State Reformatory, there was to be incarcerated another class of convicts. After providing in another paragraph for the training and education of the convicts, the last paragraph, and the one involved on this appeal authorized the board to place to the credit of each prisoner such an amount of the average per capita earnings of the inmates as the board might deem equitable and just, taking into consideration the character of the prisoner, the nature of the crime for which he was imprisoned, and his general deportment; the granting of this authority being followed by directions relating to the manner in which the fund accruing to the credit of the prisoners should be set apart and distributed.

Another paragraph authorized the board to enter into agreements with the contractors for the prison labor for such modifications of existing contracts as would enable the board to carry out the provisions of the act. Section 2 merely repealed all acts and parts of acts in conflict with the act.

At the threshold of what we have to say it might be well to observe that this court has no disposition to give a narrow or technical construction to the section of the Constitution under consideration, or a construction that would make it difficult or impracticable for the Legislature to phrase or construct titles or acts that would not be obnoxious to this provision of the Constitution. The section should be liberally construed, so as not to hinder or embarrass the Legislature in its efforts to enact laws, but at the same time a construction so loose as to virtually nullify the section, which is mandatory in its terms, should not be adopted.

The Constitution is not a technical instrument, and should not be so construed as to defeat the substantial purposes of its adoption as the organic law of the state. It was intended to operate upon and regulate the practical matters that are continually presenting themselves in governmental affairs and generally speaking, the language employed is simple in expression and free from ambiguity. But, of course, when any of its sections are attempted to be applied to any one of the multitude of things constantly coming up, there naturally and reasonably comes into existence, in company with these attempted applications, differences of opinion as to the meaning of certain provisions, and this unavoidable difference of opinion has given rise to much litigation. But this, in more or less degree, is true of every law that has ever been enacted, as well as every contract dealing with private rights that has ever been written.

The section now under consideration however, is so short and readily understood that it would seem not difficult to so construe it as to render it an easy matter for the Legislature to observe its provisions. But, notwithstanding this, the number of legislative acts in which its provisions have been disregarded is surprising. Time and again this court has found it necessary to declare legislative acts invalid on account of fatal defects arising under this section, and time and again it has, with painstaking care, endeavored to point out the necessity for a substantial observance of its requirements, and fully explained, if, indeed, explanation were necessary, how they might be complied with. So often has this been done that it would seem superfluous to repeat what has been said, especially in view of the fact that, under all the opinions of this court, this act must be adjudged insufficient.

It might also not be out of place to again observe that it is not either the duty or the pleasure of the court to interfere with the freedom of the legislative department or to attempt to control or restrain its activities, unless it appears that the legislation is forbidden by or conflicts with or violates some provision of the Constitution. We fully appreciate the fact that the Legislature is at liberty, so far as the Constitution of the state is concerned, to enact such laws under such titles as its judgment dictates, subject to the single limitation that they do not disregard in some material way the restrictions imposed by the Constitution. Except when it transgresses the bounds of its authority as marked out by the people in the Constitution, this court, in its judicial capacity, has no authority and no disposition to interfere with the Legislature of the state or to pass judgment on the propriety or wisdom of the laws that it may enact.

But to the judicial department of the state has been committed the authority to save the Constitution from being ignored or disregarded by individuals and collections of individuals, as well as by other departments of the government, and, when it is made plain to the court that the Constitution has been ignored or disregarded, its duty to interpose its authority is as extensive as the exigencies of the case may require.

It is also true that this supervising power and large jurisdiction is not conferred by any express grant of the Constitution, but it has become so firmly established as a part of the jurisprudence of the state that no thoughtful persons can be found to question it. It has been exercised by this court from the very beginning of the state, always, however, with reluctance, and never, unless imperatively demanded by a sense of duty that could not be set aside without disregarding the obligations assumed on taking the office.

In the case of Bliss v. Com., 2 Litt. 90, 13 Am. Dec. 251 decided nearly a century ago, this court said, in declaring an act unconstitutional: "It is emphatically the duty of the court to decide what the law is; and how is the law to be decided, unless it be known? And how can it be known without ascertaining, from a comparison with the Constitution, whether there exists such an incompatibility between the acts of the Legislature and the Constitution as to make void the acts? A blind enforcement of every act of the Legislature might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the Constitution; but the court would not be thereby released from its obligations to obey the mandates of the Constitution, and maintain the paramount authority of that instrument; and these obligations must cease to be acknowledged, or the court become insensible to the impressions of moral sentiment, before the provisions of any act of the Legislature which, in the opinion of the court, conflict with the Constitution can be enforced. Whether or not an act of the Legislature conflicts with the Constitution is, at all times, a question of great delicacy, and deserves the most mature and deliberate consideration of the court. But, though a question of delicacy, yet, as it is a judicial one, the court would be unworthy its station were it to shrink from deciding it whenever, in the course of judicial examination, a decision...