Harrod v. Meigs

• Decision Date: 02 December 1960
• Citation: 340 S.W.2d 601
• Parties: Russell Gene HARROD, Petitioner, v. Henry MEIGS, II, Respondent, and Judith McDowell Harrod, Intervening Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 601

340 S.W.2d 601

Russell Gene HARROD, Petitioner, v. Henry MEIGS, II, Respondent, and Judith McDowell Harrod,

Intervening Respondent.

Court of Appeals of Kentucky.

Dec. 2, 1960.

Darnell & Johnson (William E. Johnson), Frankfort, for petitioner.

R. Vincent Goodlett, Ben B. Fowler, Frankfort, for respondent.

William A. Young, Frankfort, for intervening respondent.

CULLEN, Commissioner.

This is an original action in this Court seeking an order of prohibition. The basis for the relief sought is the alleged unconstitutionality of Chapter 170 of the Acts of the 1960 General Assembly. The Act provides that the 14th Judicial District shall be composed of Bourbon, Scott and Woodford Counties, and a new district (the 48th), consisting of Franklin County, shall be established. It further provides for the creation and appointment of a judge and commonwealth's attorney for the new district, and sets out the court terms for each county involved. In the preamble it is noted that the General Assembly has taken notice of the territory, business and population involved.

Pursuant to the directions of the Act the respondent, Henry Meigs II, was appointed Judge of the 48th Judicial District. We are now asked to prohibit him from acting as circuit judge in a divorce action which he has taken under submission over petitioner's objection.

At the outset we shall make our position clear on the propriety of entertaining the petition for an order of prohibition. Section 110 of the Kentucky Constitution invests this Court with the power to issue writs necessary to give it a general control of inferior jurisdictions. The exercise of supervisory control over an inferior court has been limited by interpretation to 'extraordinary cases, when the exigencies are so exceptional that no other remedy is adequate to prevent a miscarriage of justice.' Old Blue Ribbon Distillers, Inc. v. Holbert, Judge, 276 Ky. 687, 125 S.W.2d 253, 254.

It is true that the extraordinary remedy of prohibition may not be invoked merely because a constitutional question is involved, if there is an adequate remedy by appeal. Chesapeake & Ohio Ry. Co. v. Murphy, 314 Ky. 309, 234 S.W.2d 969; Engle v. Miller, 303 Ky. 731, 199 S.W.2d 123. But in the instant case serious complications would attend any affort to raise the question in the court below by an appropriate action from which an appeal might be taken, because the question concerns the judgeship of the very court in which the action must be brought. Furthermore, the business of the Franklin Circuit Court, by reason of its venue of most cases involving the affairs of state government, is of great importance to the Commonwealth, and it is essential that the business proceed with expedition. The question that exists concerning the status of the court and its presiding judge is such as to impair seriously the conducting of its business, and to create doubt and uncertainty in the minds of the litigants before the court. The problem is so important that in the interests of the public as a whole it should not await for a remedy the normal processes of the pursuit of an action to judgment, followed by an appeal.

Under these special circumstances we think it is appropriate for this Court to exercise its extraordinary power under Section 110 of the Constitution.

The constitutionality of Acts creating new judicial districts has been before this Court on many occasions in the past. Each of the several sections of the Kentucky Constitution pertaining to creation of judicial districts has been examined, explored and explained. Even so, a question persists concerning the true intent and application of Section 138. In order to have a clear understanding of the question involved we must again briefly review the constitutional sections that pertain to the establishment of judicial districts, insofar as they are pertinent here.

Section 128 directs the General Assembly at its first session after the adoption of the Constitution to divide the state into judicial districts not to exceed one for each 60,000 of population of the entire State, having due regard to territory, business and population.

Section 132 permits the General Assembly to establish additional districts not to exceed one for every 60,000 of population of the State, according to the last enumeration. It will be noted that districts comprising counties of 150,000 population are excluded in both Section 128 and Section 132.

Section 137 establishes a district of each county having a population of 150,000.

Section 138 permits establishment of a district of each county having a total population of 40,000, including a city of 20,000 inhabitants.

In Scott v. McCreary, 148 Ky. 791, 147 S.W. 903, this Court construed an Act of 1912 which attempted to create a separate district of Franklin County. The Act was held unconstitutional as being repugnant to Section 138. The majority held that Section 138 was a limitation on the power of the General Assembly to create new districts; that a county must have a total of 40,000 population, including a city of 20,000, in order to be made a separate district; and that even if a county does have a total population of 40,000, including a city of 20,000, business must be taken into account in determining whether it may be established as a separate district. In 1948, Runyon v. Smith, 308 Ky. 73, 212 S.W.2d 521, was decided by this Court. An Act creating a district in a county not meeting the population requirements of Section 138 was upheld, thereby effectually overruling Scott v. McCreary, supra [148 Ky. 791, 147 S.W. 907]. The dissenting opinion in Scott v. McCreary was adopted, and the reasoning in the dissenting opinion was agreed with.

The pertinent part of the dissenting opinion follows:

'As will be seen as a matter of first impression, the provision as to counties in the state which may have a population of as much as 150,000 individuals is not involved in this litigation, save only in so far as it may shed light upon the question here. The first provision of the Constitution to be noticed is that portion of section 128 which provides that the Legislature shall not have the power to create districts (outside of counties having a population of 150,000) exceeding in number one district for each 60,000 of the population of the entire state. It is not complained in the case at bar that the creation of the additional district of Franklin county causes the entire number of districts to exceed one for each 60,000 of the state's population.

'If we next read all the above sections of the Constitution down to section 138, it is clear that there is no prohibition against legislation by the General Assembly erecting any single county into a separate circuit judicial district. The only prohibition as to any single county is that no county shall be divided into separate districts. Beyond this prohibition, the Legislature was left to exercise its entire freedom of will and judgment in the creation of districts, subject alone to the demand that the General Assembly should have due regard to territory, business, and population, and subject to the provision of section 132, supra, that additional circuit judicial districts might be established when deemed necessary by the General Assembly. In other words (excluding always counties having a population of 150,000), the Legislature was given carte blanche to establish as many circuit court districts as it might deem necessary, in the exercise of a due regard to territory, business, and population, so long as it did not so far extend the exercise of this judgment as to create more districts than one for each 60,000 of the state's population. In the enactment of so enduring, dignified, and formal a document as that of a Constitution, the basic law of a self-governing people, it is not to be assumed that any words written into the instrument were there written lightly, or without some definite and precise purpose. The words in section 128, 'having due regard to territory, business and population,' and the words in section 132, 'when deemed necessary,' which latter words of necessity refer back to the standard of measure to be regarded by the Legislature in the creation of new districts, must be given the formal weight which all words in a Constitution are entitled to receive. The standard erected and declared in these words is the standard which the Legislature must needs follow, and is the standard which must govern us, unless there be within the Constitution itself some other declared standard limiting or narrowing the intent of these words. * * *.

'There is nothing in the language of the section named (138) from which, justly and fairly, can be deduced any implied purpose of the framers of the Constitution of a negation or denial of the right of the General Assembly to create into separate districts counties which have less than 40,000 population, or which have not in them cities having 20,000 population. If this provision of the Constitution stood alone, there would be much in the argument that in thus setting up a standard the Constitution makers had meant to make it, not only a permissive or mandatory but as well an exclusive, standard; but such is not the condition presented. Section 138 of the Constitution must be considered in connection with the other sections preceding it. The other sections, as above pointed out, provide that the General Assembly, in the creation of districts, should have due regard to territory, business, and population; and that it might create new districts when deemed necessary, subject alone to the prohibition against the division of any county, and the other provision that the total number of districts should not exceed one for each 60,000 of the state's population. The spirit or intent of the Constitution makers should be gained, therefore, not from section 138 alone, but...