Droege v. McInerney

• Decision Date: 15 June 1905
• Citation: 87 S.W. 1085,120 Ky. 796
• Parties: DROEGE, Circuit Clerk, v. McINERNEY, Sheriff.
• Court: Kentucky Court of Appeals

87 S.W. 1085

120 Ky. 796

DROEGE, Circuit Clerk, v. McINERNEY, Sheriff.

Court of Appeals of Kentucky.

June 15, 1905

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Suit between Frank A. Droege, clerk of the circuit court of Kenton county, and M. D. McInerney, sheriff of said county. From a judgment for the latter, the former appeals. Affirmed.

S. W Adams and Myers & Howard, for appellant.

Wm. A Byrne, for appellee.

HOBSON C.J.

By the act of October 24, 1900 (Laws 1900, Sp. Sess. p. 29, c. 5, § 2), a county board of election commissioners was created. The act contained this provision: "The sheriff of the county by virtue of his office shall be a member of said board and shall preside at its meetings, and in case of disagreement between the other members of said board, acting as umpire he shall be permitted to vote. *** In counties where there is no sheriff or where from other causes the sheriff cannot act the circuit clerk shall act in his place." Ky. St. 1903, § 1596a, subsec. 2. By an act approved March 22, 1904 (Acts 1904, p. 197, c. 93), the words last above quoted were changed to read as follows: "In counties where there is no sheriff, and in counties containing cities of the second class, or where, from any cause the sheriff can not act, the circuit court clerk of the county, by virtue of his office shall be a member of said board instead of the sheriff, and shall act in the place of and is given all the rights and powers that are given to sheriffs under this section." Appellant, Frank A. Droege, is the circuit clerk of Kenton county, and appellee, M. D. McInerney, is the sheriff. This is a controversy between them as to the validity of the act of 1904, in so far as it provides that in counties containing cities of the second class the circuit clerk, by virtue of his office, shall be a member of the board, instead of the sheriff. The circuit court held the act invalid, and the clerk appeals.

Section 59 of the Constitution provides that the General Assembly shall not pass any local or special acts "to provide for conducting elections." It also provides that, in all cases where a general law can be made applicable, no special law can be enacted. In 1 Sutherland on Statutory Construction, § 203, the rule is thus stated: "Whether or not an act is class legislation, or whether or not it is a general or special law, depends fundamentally upon a question of classification. When an act is assailed as class or special legislation, the attack is necessarily based upon the claim that there are persons or things similarly situated to those embraced in the act, and which by the terms of the act are excluded from its operation. The question then is whether the persons or things embraced by the act form by themselves a proper and legitimate class with reference to the purposes of the act. It is agreed on all hands that the Constitution does not forbid a reasonable and proper classification of the objects of legislation. The question is, what is reasonable and proper in the premises?" In Safety Building &amp Loan Company v. Eckler, 106 Ky. 115, 50 S.W. 50, this court said: "We assert it to be elementary that the true test whether a law is a general one, in the constitutional sense, is not alone that it applies equally to all in a class--though that is also necessary-- but, in addition there must be distinctive and natural reasons inducing and supporting the classification. A law does not escape the constitutional inhibition against being a special law merely because it applies to all of a class...