Bryan v. Voss

• Citation: 136 S.W. 884,143 Ky. 422
• Parties: BRYAN v. VOSS. SAME v. JEFFERS.
• Decision Date: 02 May 1911
• Court: Court of Appeals of Kentucky

136 S.W. 884

143 Ky. 422

BRYAN v. VOSS.

SAME v. JEFFERS.

Court of Appeals of Kentucky.

May 2, 1911

Appeal from Circuit Court, Campbell County.

Suits by Frank B. H. Voss and by Walter W. Jeffers against L. Lyman Bryan. From a judgment for plaintiff in each case, defendant appeals. Reversed and remanded for judgment as directed.

Aubrey Barbour, Thos. P. Carothers, and Fred. B. Bassmann, for appellant.

C. T Baker, for City of Newport. Saml. C. Bailey, for appellee.

HOBSON C.J.

By an act approved March 1, 1910 (Laws 1910, c. 50), it was provided in substance that any city of the second class may become organized and be governed under the commission form of government. The act does not become operative in any city until a majority of the legal votes cast at the election therein provided for shall be in favor of it. An election was held in the city of Newport under the act, and the proposition carried. Thereupon these suits were brought to enjoin the organization of the city government under the act one by a taxpayer suing on behalf of himself and all other taxpayers, the other by an alderman of the city whose term of office was cut short by the act. The act is assailed on seven grounds: (1) It does not re-enact that part of the charter of the cities of the second class that it attempts to amend; (2) it relates to more than one subject; (3) the subject of the act is not expressed in the title; (4) the act is special legislation; (5) it is void because enacted to take effect upon the approval of a city; (6) legislative and executive duties are vested in the commission; (7) the legislative boards must be selected from wards. The circuit court held the act invalid. The caption and opening sections of the act are as follows: "An act to amend an act entitled 'An act for the government of cities of the second class in the commonwealth of Kentucky,' which was approved March 19 1894, and thereafter in due course became a law, and as same has since been amended, all of which said act and amendments now appear as article 3, of chapter 89 of the Kentucky Statutes, in John D. Carroll's Edition thereof in 1909. Be it enacted by the General Assembly of the commonwealth of Kentucky: Section 1. That an act entitled 'An act for the government of cities of the second class in the commonwealth of Kentucky,' which was approved March 19, 1894, and thereafter became a law, and the amendments thereto, which act and which amendments do now appear as article 3 of chapter 89 of the Kentucky Statutes, in John D. Carroll's Edition thereof in 1909, be amended by adding thereto, at the end thereof, the following provisions: (1) Any city of the second class under the laws of the commonwealth of Kentucky, may become organized and be governed under the provisions of this act by proceeding as hereinafter provided. Organizing under this act shall not change the corporate entity of any such city, but the body politic and corporate shall remain the same body that it now is." Here follows twenty-eight sections providing for a commission form of government. The objections to the act will be considered in the order stated.

1. Cities of the second class are now governed under the act of March 18, 1894 (Laws 1894, c. 100). The act of March 21, 1910, is simply an addition to that act, giving the cities of the second class the option to choose between the two forms of government. If a city does not elect to be governed under the act of 1910, it remains under the act of 1894. If it elects to be governed under the act of 1910, then its government will be determined by that act. The act of 1910 does not take the place of the previous act, although made for the government of cities of the second class, but merely gives them the power to substitute another form of government in lieu of the old. 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 act of 1910 does not revise or extend the provisions of the act of 1894, but leaves those provisions just as they were before; they simply cease to be operative in a city in which the new system of government is put into effect. It would have served no good end to have republished the act of 1894 in the act of 1910. In Purnell v. Mann, 105 Ky. 87, 48 S.W. 407, 49 S.W. 346, 50 S.W. 264, 20 Ky. Law Rep. 1146, 1396, 21 Ky. Law Rep. 1129, Murphy v. Louisville, 114 Ky. 762, 71 S.W. 934, 24 Ky. Law Rep. 1574, and Prowse v. Board of Education, 134 Ky. 365, 120 S.W. 307, we sustained similar legislation as not in violation of the constitutional provision above quoted. The reasoning of those opinions control here. If the title to the act had read "An act to further regulate the government of cities of the second class," the sense would not have been different or clearer.

2. All the provisions of the act are germane to the commission form of government. In an act for the government of a city elections may be provided for and so may primary elections to be held in the city. All the provisions of the act are germane to the government of the city which is the subject of the act.

3. The subject of the act is the government of the cities of the second class, and this subject is clearly shown by the title.

4. Section 59 of the Constitution, among other things, provides: "The General Assembly shall not pass local or special acts *** to grant a charter to any corporation or to amend the charter of any existing corporation."

Section 156 provides: "The cities and towns of this commonwealth, for the purposes of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions."

It is insisted that some of the cities of the second class may adopt the commission form of government while others do not and that thus there will not be a uniform law governing cities of the second class. But this argument overlooks the fact that each city of the second class is now governed by the act of 1894, and that each of them has the power to adopt the commission form of government under the act of 1910. They all are governed by the same law; they each have precisely the same powers; one may exercise the power and another may not, but the mere failure to exercise the power does not affect its existence. The Constitution does not require absolute uniformity in all cities of a given class. To illustrate, each city of the second class may pass ordinances on certain subjects; one may pass one ordinance; another, others. The ordinances, although relating to the same subject, may be very different, and so, in the government of the cities of a given class, the...