Burton v. Mayer

• Decision Date: 07 June 1938
• Citation: 274 Ky. 245,118 S.W.2d 161
• Parties: BURTON et al. v. MAYER et al.
• Court: Kentucky Court of Appeals

118 S.W.2d 161

274 Ky. 245

BURTON et al. v. MAYER et al.

Court of Appeals of Kentucky

June 7, 1938

Appeal from Circuit Court, Jefferson Chancery Branch, First Division.

Action by William F. Mayer and others, as citizens, residents taxpayers, and registered voters in Jefferson County, Ky against George C. Burton and others, as members of the Jefferson County Board of Registration and Purgation, and others to have the General Registration and Purgation Act adjudged unconstitutional and void, and to enjoin the defendants from taking any action pursuant to the provisions of the act. From a judgment declaring certain sections and provisions of the act unconstitutional and void and enjoining the defendants from taking any action pursuant to those provisions, the members of the Jefferson County Board of Registration and Purgation appeal, and the plaintiffs and other defendants cross-appeal.

Affirmed in part and reversed in part.

See also, 274 Ky. 263, 118 S.W.2d 547.

Hubert Meredith, Atty. Gen., A. E. Funk, Asst. Atty. Gen., and Henry J. Tilford and Tilford & Wetherby, all of Louisville, for appellants.

Oldham Clarke, Baldwin C. Burnam, A. Scott Hamilton, James M. Cuneo, Walter E. Huffaker, Jos. S. Lawton, Chas. W. Morris, H. O. Williams, and Lawrence S. Grauman, all of Louisville, for appellees.

REES Justice.

The question for decision is whether House Bill 385, c. 111, known as the General Registration and Purgation Act, passed by the General Assembly at its regular 1938 session, is valid.

The appellees, William F. Mayer and Thomas C. Fisher, citizens, residents, taxpayers, and registered voters in Jefferson County, Kentucky, brought an action in the Jefferson circuit court against the members of the Jefferson county board of registration and purgation, the members of the fiscal court of Jefferson County, the members of the registration commission of the city of Louisville, and the county court clerk of Jefferson county to have the act adjudged unconstitutional and void, and to enjoin the defendants from taking any action pursuant to the provisions of the act. All of the defendants except the members of the Jefferson County board of registration and purgation filed an answer joining in the prayer of the plaintiffs' petition, and the members of the Jefferson county board of registration and purgation filed a general demurrer to the petition. The demurrer was overruled, and the defendants having declined to plead further, judgment was entered declaring certain sections and provisions of the act unconstitutional and void, and enjoining the defendants from taking any action pursuant to such provisions. The members of the Jefferson county board of registration and purgation have appealed, and the plaintiffs and other defendants have cross-appealed from so much of the judgment as holds other provisions of the act valid.

The act provides for a state board of registration and purgation to be composed of members of the state board of election commissioners, and imposes upon this board the duty to supervise registration and purgation under existing registration laws, and to appoint a county board of registration and purgation for each county to be composed of three citizens of the county. Section 10 of the act makes it the duty of the county board of registration and purgation to administer the registration and purgation of registration lists of voters as provided for in chapter 45 of the Acts of the General Assembly of 1936, known as the General Registration Act Ky.St. § 1486-bb-1 et seq., and to examine the registration lists and registration books in the county clerk's office and in the office of the board of registration commissioners of cities of the first class as often as they may deem it advisable, and the act makes it their express duty to examine the registration books after the closing date of the said books for registration and before any general, special, or primary election for the purpose of removing from the registration lists or books the names of persons who have, since the date of their registration, by death or otherwise, become disqualified to vote. If the board finds upon investigation, or has reasonable grounds to believe, that there are names of persons on the registration lists or registration books who have become disqualified to participate in any special, general, or primary election, it shall prepare a list of such names, "but no name of any voter shall be stricken or purged from the registration lists or registration books by the county board of registration and purgation until the board has given the voter who is challenged an opportunity to be heard." The act provides for a written notice to the voter whose right to vote is challenged, and he is given five days within which to appear before the board and show cause why his or her name should not be stricken from the registration lists. By section 16 of the act, any voter whose right to vote has been denied or whose name has been stricken from the registration lists or registration books must perfect his appeal to the county judge or to any circuit judge, as is provided for in the act, five days prior to any primary, special, or general election. The same section provides that no decision of any purgation officer or board, affecting the right of the voter to vote in any election or removing, transferring, canceling, or suspending his registration shall be rendered later than eight days before any election. Section 17 of the act provides that if the purgation board finds that a voter is properly registered, but is not entitled to vote in the next election, whether primary, general, or special, his name or card shall be removed from the registration records and not sent to the precinct on election day, and his name or card shall be kept in a suspended list until he is eligible to vote. Section 11 of the act provides that members of the county board shall serve without compensation except in counties containing cities of the first class, where they shall receive $1,200 each per annum, to be paid by the fiscal court, and that purgation officers employed by the county board shall serve without compensation except in counties having cities of the first class, where they shall receive not to exceed $5 each per day.

The circuit court adjudged the act to be invalid in four particulars: (1) Those provisions of the act which apply to cities of the first class and purport to amend, extend, repeal, or otherwise change the Model Registration Act of 1930, Kentucky Statutes, Sections 1486b-28 to 1486b-61, because it violates section 51 of the Constitution of Kentucky by making special provisions for registration and purgation in cities of the first class, and by amending the Model Registration Act, which subjects are not expressed in the title; (2) it violates sections 147 and 160 of the Constitution in so far as it applies to cities of the first class; (3) section 11 violates sections 59 and 147 of the Constitution of Kentucky in so far as it provides compensation to purgation officers and members of the county board in counties having a city of the first class; and (4) section 17 of the act is unconstitutional because a legally registered voter whose name is placed on a suspended list is deprived of his right to vote without an opportunity to be heard.

At the outset, it may be said that the wisdom or propriety of an act of the Legislature is not a matter for the courts to determine. When the validity of a legislative act is challenged, the sole duty of the courts is to determine whether or not it violates any constitutional provision, and in solving this problem, it is their duty to adopt such construction as will render the statute constitutional if its language will permit. A correlative rule, universally recognized, is that every doubt and presumption will be resolved in favor of the validity of an act of the Legislature, and courts should not declare an act of the Legislature unconstitutional unless satisfied of its unconstitutionality beyond a reasonable doubt. Martin v. J. Bacon & Sons, 268 Ky. 612, 105 S.W.2d 569; Shannon v. Wheeler, 268 Ky. 25, 103 S.W.2d 718; Federal Chemical Company v. Paddock, 264 Ky. 338, 94 S.W.2d 645; Linton v. Fulton Building & Loan Association, 262 Ky. 198, 90 S.W.2d 22; Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244; Ashland Transfer Company v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691, 87 L.R.A. 534; Commonwealth Life Insurance Company v. City of Paducah, 244 Ky. 756, 52 S.W.2d 704; Fiscal Court of Pendleton County v. Pendleton County Board of Education, 240 Ky. 589, 42 S.W.2d 885. Our state Constitution is not a grant of power to the Legislature as is the federal Constitution, but is a limitation upon its powers, and it possesses every power not denied to it by the Constitution of the state or of the United States. Hart v. Rose, 255 Ky. 576, 75 S.W.2d 43; Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745, 70 A.L.R. 1077; Board of Trustees of Policemen's Pension Fund v. Schupp, 223 Ky. 269, 3 S.W.2d 606. The question of the validity of the statute before us is therefore narrowed to an inquiry as to whether or not it contravenes any constitutional provision. The chancellor held, and the appellees on this appeal argue, that the act violates section 51 of the Constitution in two respects: (1) The title to the act does not give notice that the act contains any provisions dealing specially with registration and purgation in cities of the first class and amends the Model Registration Act; and (2) the act revises, amends, and extends both the Model Registration Act and General Registration Act in many respects without re-enacting or publishing at length any of the provisions so revised, amended and extended. Section 51...