Combs v. Matthews
| Decision Date | 31 January 1963 |
| Parties | Bert T. COMBS, Governor, Appellant, v. Robert F. MATTHEWS, Commissioner of Finance, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Louis Cox, John Hopkins, Frankfort, for appellant.
Hunter B. Whitesell, Dept. of Finance, John B. Browning, Asst. Atty. Gen., Robert T. Caldwell, Jr., Asst. Atty. Gen., Frankfort, Jack Q. Heath, Louisville, for appellees.
The General Assembly is meeting now in extraordinary session to consider reapportionment of legislative districts, a circumstance which came into existence after the trial court refused to declare the rights of the litigants, because it concluded that no justiciable controversy was presented by the pleadings which merely alleged that the Governor was 'considering calling into extraordinary session the General Assembly * * * for the sole and express purpose of redistricting the said Commonwealth * * *.' This Court is not authorized to give advisory opinions on hypothetical factual situations , but it may declare the rights of litigants in advance of action when it concludes that a justiciable controversy is presented, the advance determination of which would eliminate or minimize the risk of wrong action by any of the parties. KRS 418.040, 418.045. Justiciability turns on 'evaluating both the appropriateness of the issues for decision * * * and the hardship of denying judicial relief.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. We believe the issues presented here should be resolved and that it will serve a useful public purpose to do so in advance of any legislative action of the General Assembly in the present special session. See Borchard, Declaratory Judgment, 2nd Ed., at pages 29 and 58.
The power of the Governor to call the General Assembly into session on extraordinary occasions for the sole purpose of considering stated subjects is conceded (Sec. 80, State Const.), but the Commissioner of Finance contends that the General Assembly may not consider legislative reapportionment or redistricting before 1964, claiming that Section 33 of the State Constitution requires such action at ten year intervals after 1894 when the first General Assembly met under the present Constitution. The Commissioner, consequently, pleads that he cannot legally approve the payroll and expenses of the members of the General Assembly for the present 1963 extraordinary session called, as it is, solely for the purpose of legislative redistricting.
The Governor asserts that 'it is impossible to divide the Commonwealth into one hundred (100) representative districts of approximately equal population and at the same time to restrict each district to no more than two (2) counties,' but the Secretary of State contends that Section 33 of the Constitution limits a representative district to maximum of two counties which would preclude him from accepting the notification and declaration of candidates for the office of representative from districts containing more than two (2) counties. Section 33 of the Constitution says:
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