Buckner v. Gordon
| Decision Date | 12 April 1884 |
| Citation | 5 Ky.L.Rptr. 816,81 Ky. 665 |
| Parties | Buckner, & c., v. Gordon, & c. |
| Court | Kentucky Court of Appeals |
1. Any officer who is charged with duties pertaining to a city or town government, as distinguished from a State, county, or district officer, is an officer of the city or town within the meaning of section 6, article 6 of the constitution.
2. The failure to make provision in the constitution for city and town governments, the fact that such governments were in existence when it was adopted, and that they have ever since been controlled by the legislature, taken in connection with section 6 of article 6, shows that it was the intention of the framers of the constitution to leave these matters to the legislative will.
3. The act amendatory of the charter of Winchester, providing that voters at municipal elections shall pay their taxes before they vote, is not in violation of the constitution.
4. Such courts as police courts, with jurisdiction for the enforcement of ordinances, and limited jurisdiction in civil and penal cases, are recognized by some name under the entire American system of municipal government.
5. A judge of a city or town court is necessarily a city or town officer within the meaning of the constitution.
APPEAL FROM CLARK CIRCUIT COURT.
W. C P. BRECKINRIDGE AND R. W. WOOLLEY FOR APPELLANTS.
The qualifications prescribed by the constitution for voters at State elections do not apply to municipal elections.
Every State and county officer holds under a constitutional tenure and from governor down to constable the organic law creates the office, describes the functions, duties and liabilities of the incumbent, and fixes the duration of his term.
The conclusion is irresistible that as to the offices of cities and towns, as contradistinguished from State, district and county offices, the makers of the constitution had no intention to make any provision limiting the right of the legislature to create them, to define their powers and duties, and tenure of office. (Constitution, art. 6, sec. 6; Standiford v. Wingate, 2 Duv., 440; Trustees Owensboro v. Webb, 2 Met., 576; Constitution, sec. 5 art. 2; Speed & Worthington v. Crawford, 3 Met., 207; Const., sec. 30, art. 4; Police Commissioners v Louisville, 3 Bush, 597; Paducah v. Cully, 9 Bush, 323; Boyd v. Chambers, 78 Ky. 140; 2 Otto, 215.)
W. M. BECKNER AND C. & T. M. EGINTON FOR APPELLEES.
The legislature, by the words " qualified voters," intended to make the police judge of Winchester elective by those persons in his district who are entitled to vote under the State constitution. He is to be chosen by male citizens twenty-one years of age, who have resided in the State two years, or in the county, town, or city in which they offer to vote, one year next preceding the election. (Const., art. 2, sec. 8.)
That construction of a statute is to be adopted which least restricts the public rights. (8 Howard, 539; 9 Ib., 172; 1 Blatch, 360.)
It should lean toward liberty and rights. (21 Ga. 139; 10 Ind. 493; 2 Nev. 271; Lieber's Hermeneutics, 172.)
Of two constructions, that must prevail which will conform to the constitution.
The legislature can not fix the qualifications of voters, at a popular election for officers of a town, other than those fixed in article 2, section 8 of the constitution. (Creasey on Eng. Const., 320; 1 Kernan, 392; Hume's Hist. Eng., vol. 2, p. 53; Guizot's Hist. Civ.; 7 Leo; Hallam's Middle Ages, ch. 2; Jefferson's Works, vol. 5, 525; Matthew 17: 24-27; Ib., 22, 16, 21; Mark, 12: 14, 17; Salk, 193.)
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...
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