Craig v. O'Rear

• Decision Date: 15 May 1923
• Citation: 251 S.W. 828,199 Ky. 553
• Parties: CRAIG ET AL. v. O'REAR ET AL.
• Court: Kentucky Court of Appeals

251 S.W. 828

199 Ky. 553

CRAIG ET AL. v. O'REAR ET AL.

Court of Appeals of Kentucky.

May 15, 1923

Rehearing Denied June 22, 1923.

Appeal from Circuit Court, Franklin County.

Action by John J. Craig and others against E. C. O'Rear and others. Judgment for defendants, sustaining the validity of the act in controversy, and plaintiffs appeal, and defendants cross-appeal from so much of the judgment as denied their right to appoint the faculties of two normal schools. Affirmed on original and cross appeals.

Moorman J., dissenting.

Chas I. Dawson, Atty. Gen., S. Y. Trimble, of Hopkinsville, and R T. Caldwell, of Ashland, for appellants.

John D. Carroll, of Frankfort, for appellees citizens of Murray and Morehead.

E. C. O'Rear, of Frankfort, for appellee Normal School Commission.

CLAY J.

At the last session of the General Assembly it passed the following act, now designated as chapter 10 of the Acts of 1922:

"An act to provide for the establishment of two normal schools for the training of white elementary teachers, and appropriating moneys for the maintenance and operation thereof.

Whereas, the greatest need of common schools is trained elementary teachers; and

Whereas, the state normal schools already established can neither reach nor train all the elementary teachers needed for the common schools: Therefore,

Be it enacted by the General Assembly of the commonwealth of Kentucky:

Section 1. That a commission is hereby created, to be known as the state normal school commission, consisting of eight members who are citizens of the state of Kentucky and over the age of twenty-one years, to be appointed as follows: Five by the speaker of the House of Representatives and three by the president of the Senate, which is hereby authorized and empowered to establish two new normal schools for the training of white elementary teachers, one to be located in the western part of the state and one to be located in the eastern part of the state. The said commission is hereby authorized to receive gifts of land, buildings or money for the establishment of these two normal schools for white elementary teachers.

Sec. 2. The management and control of these two normal schools, when established, shall be and is hereby vested in the state board of education.

Sec. 3. There is hereby appropriated, out of the general funds of the state, to each of these two normal schools, for maintenance and operation, the sum of thirty thousand dollars annually. The auditor of the commonwealth is directed to draw his warrants for said sums, above appropriated, upon requisitions signed by the chairman and secretary of the state board of education: Provided, that the above appropriation for maintenance and operation shall not become available for said normal schools until the said commission has received for each of said schools gifts of land suitable to the purposes of each school, and also gifts of buildings or money, or both, equivalent in value to at least one hundred thousand dollars: Provided, further, that if gifts and donations are made, sufficient to establish one of said schools, then the sum of thirty thousand dollars shall be available for the maintenance and operation of said school.

Sec. 4. All laws and parts of laws in conflict with the provisions of this act are hereby repealed.

Sec. 5. If any section of this act shall be held unconstitutional the remainder of the act shall not be affected thereby."

Pursuant to the authority conferred by the act, the speaker of the House of Representatives appointed five members of the commission, and the president of the Senate appointed three members of the commission. The commission organized, and, after several meetings and hearings, selected Murray, in the western part of the state, and Morehead, in the eastern part of the state, as suitable sites for the proposed schools. Murray conveyed to the commission a tract of land which it purchased for $16,000, and turned over to the commission the sum of $100,000. It also appears that Murray recently erected at a cost of more than $100,000 a good school building, well adapted for a normal school, and that the school authorities have tendered, and the commission has accepted, this building for use until a new building can be erected. Morehead was selected on the condition that it comply with the act by making gifts of land suitable to the purposes of the school, and also gifts of buildings, or money, or both, equivalent in value to at least $100,000, but at the time this litigation began the condition had not been complied with.

When the commission announced the establishment of the schools at Murray and Morehead, several suits involving the validity and construction of the act were filed in the Franklin circuit court, which rendered judgment upholding the validity of the act, and the right of the commission to establish the schools by erecting and equipping the buildings, but not the right to select the faculties of the schools. From that judgment this appeal is prosecuted.

The right of courts to declare an act unconstitutional has been settled by a long line of decisions, from which there is no dissent; but, as the Legislature is a separate and independent department of government, invested by the Constitution with the power to make laws, the courts have fixed certain rules for their own guidance, in order that the power to declare an act invalid may not be exercised too freely. In the first place, the propriety, wisdom, and expediency of legislation is exclusively a legislative question, and courts are not at liberty to declare a statute invalid because, in their judgment, it may be unnecessary, or opposed to the best interests of the state. McCray v. U. S., 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561. Another rule is that an act will not be declared void on the ground that it is opposed to the spirit supposed to pervade the Constitution, or is against the nature and spirit of the government, or is contrary to the general principles of liberty, or the genius of a free people. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765; Humes v. Mo. P. Ry. Co., 82 Mo. 221, 52 Am.Rep. 369; Henley v. State, 98 Tenn. 665, 41 S.W. 352, 1104, 39 L.R.A. 126. A third rule is that courts should always proceed with the greatest possible caution, and should never declare an act invalid until after they have resolved every doubt in its favor, and are then able to say that it is plainly repugnant to the Constitution. Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403; Nashville v. Cooper, 6 Wall. 247, 18 L.Ed. 851; Dwiggins Wire Fence Co. v. Patterson, 166 Ky. 278, 179 S.W. 224.

The act is assailed on the ground that it violated sections 27 and 28 of the Constitution, which separate the government into three departments, legislative, executive, and judicial, and provide that the powers of one shall not be exercised by either of the others. The first objection to the act is that it is an assumption of executive power by the Legislature. Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, is relied on. That case merely held that appointment to office was an executive function which could not be exercised by the Legislature itself. The court, however, was careful to point out that the rule was confined solely to the appointment of officers and was not intended to apply to mere temporary agents. While the purpose of the language employed was to call attention to the exception to the rule, and cannot be regarded as controlling, practically all of the courts hold that mere temporary agents appointed to perform a particular task, who serve without term and without pay, and whose functions cease when the purpose is accomplished, may be appointed by the Legislature itself, or in any manner that it may provide, and we have no doubt of the correctness of this view. McArthur v. Nelson, 81 Ky. 67; David v. Portland Water Committee, 14 Or. 98, 12 P. 174; State v. Hocker, 39 Fla. 477, 22 So. 721, 63 Am.St.Rep. 174, and notes on page 189.

But if we go further and assume that the members of the commission were officers and not agents, clearly the rule announced in the Sibert Case has no application. The ruling there was simply that the Legislature itself could not make appointments to office. It was not held that the Legislature could not confer the power of appointment on others. Manifestly, if the Legislature can neither appoint nor confer the power of appointment on others, then every inferior officer and employee in the state is serving without right, for all of them hold their offices or positions by virtue of appointments made by persons who derive their authority to appoint from statutes enacted by the Legislature. As far as we are aware, there is no dissent from the proposition that the Legislature may create offices and confer the power of appointment on others, in the absence of a constitutional provision requiring the appointment to be made by a particular person. The reason for the rule is that the Legislature does not exercise an executive function when it confers the power of appointment on some one else. Here the Legislature did not appoint the members of the Commission, but authorized the speaker of the House and president of the Senate to make the appointments. Therefore the Legislature did not perform an executive act, but conferred the power of appointment on others, who had the right to act in an executive capacity. It follows that, whether the members of the commission be regarded as mere temporary agents or as officers exercising a portion of the sovereignty of the state, the manner of their selection was not repugnant to any provision of the Constitution.

City of Harlan v. Coombs Land Co., 199 Ky. 87, 250...