Hodge v. Bryan

• Decision Date: 18 June 1912
• Citation: 148 S.W. 21,149 Ky. 110
• Parties: HODGE v. BRYAN, County Clerk.
• Court: Kentucky Court of Appeals

148 S.W. 21

149 Ky. 110

HODGE v. BRYAN, County Clerk.

Court of Appeals of Kentucky.

June 18, 1912

Appeal from Circuit Court, Campbell County.

Petition by John T. Hodge against J. Lyman Bryan, as County Clerk. From a judgment for defendant, plaintiff appeals. Affirmed.

O'Rear & Williams, of Frankfort, John R. Allen, of Lexington, and Barbour & Bassmann, of Newport, for appellant.

Matt Herold, of Newport, Lewis McQuown, of Frankfort, and J. J Moore and Jno. F. Butler, both of Pikeville, for appellee.

NUNN J.

Appellant filed his petition in the Campbell circuit court against appellee, the county court clerk of that county, wherein he asked for an injunction prohibiting appellee from receiving petitions for nomination or any nomination papers from any candidate for the office of circuit judge; that the primary election law passed by the last General Assembly be adjudged unconstitutional; and that it be held that no election can be had in November, 1912, to fill the vacancy in the circuit court judge's office in that county, for the following reasons: First, because the primary election law is in conflict with section 6 of the Constitution of the state of Kentucky, which provides, "all elections shall be free and equal;" second, because it is in conflict with section 59 of the Constitution, which provides that the General Assembly shall not pass local or special acts with reference to conducting elections, or with reference to any subject, when the general law can be made to apply; third because it is in conflict with section 60 of the Constitution, which provides that no law shall be enacted granting power or privileges in any case where such power or privileges can be provided for by general law; fourth because the act excludes presidential electors, who are state officers.

We will consider these questions in the order named, and as presented in appellant's petition. Conceding that section 6 of the Constitution, which declares that all elections shall be free and equal, applies to primary elections, this act does not violate it, as there is nothing in it rendering it not free or unequal as to all classes of citizens included within it. Further, the penalties for the violation of this primary election law are the same as those imposed for the violation of the general election law, and should and probably will be enforced rigidly. The Constitution does not require the Legislature to enact primary election laws. It makes no reference to them; therefore, as the Constitution does not prohibit them, the Legislature had a right to pass such a law. In the case of Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388, 26 Ky. Law Rep. 638, this court expressly decided that the word "election," as used in the Constitution, had no application to primary elections. The word "election," as used in the primary law, does not refer, in fact, to the election of an officer. It only means that the people should, on the first Saturday of August in each year, select, by means of a primary election, persons as candidates to be voted for at the general election held the following November. There is no election in August: it is only a selecting or naming of persons as candidates, to be actually voted for at the November general election.

We will consider the second and third questions together. It is contended by appellant that, as the primary election law excepts from its operation presidential electors, school trustees, trustees of towns of the fifth and sixth classes, and the mayor and commissioners of second-class cities that have adopted the commission from of government, it is special or class legislation, which is prohibited by sections 59 and 60 of the Constitution, and contends that the persons excluded should have the equal benefit of the law. The general rule is that in construing statutes the courts must take into consideration the purpose of the statute, i. e., the object to be promoted or the evil to be remedied. Commonwealth v. Trent, etc., 117 Ky. 34, 77 S.W. 390, 25 Ky. Law Rep. 1180, 7 Ann.Cas. 209, and Katzman v. Commonwealth, 140 Ky. 124, 130 S.W. 990. 30 L.R.A. (N. S.) 519, 140 Am.St.Rep. 359.

Class legislation is repugnant to the Constitution only when it is special and not general; that is, when it partakes of the character of a private act. State Racing Commission v. Latonia Agricultural Ass'n, 136 Ky. 173, 123 S.W. 681, 25 L.R.A. (N. S.) 905. In the case of City of Louisville v. Commonwealth for School Board, 134 Ky. 488, 121 S.W. 411, this court said: "Classification is a necessary feature and power of legislation, as it is impossible for any extensive code of law to apply to every person or subject in the state." In Sutherland's Statutory Construction (2d Ed.) § 203, it is said: "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. Where 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, 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 purpose 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?"

What was the purpose, and what appears to be the purpose and intended result, of the act in question? It is a well-known fact that heretofore candidates for office in this state were named by conventions of delegates; that these conventions were accused of letting themselves be controlled by bribes or "bosses"; and that the Legislature passed an act making it optional with the political parties whether or not they would nominate by conventions or by primary elections. But this left the matter still in the control of the...