Johnson, Governor v. Commonwealth

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Stanley, Commissioner
• Citation: 291 Ky. 829
• Parties: Johnson, Governor. v. Commonwealth ex rel. Meredith, Atty. Gen.
• Decision Date: 26 August 1942

291 Ky. 829 Johnson, Governor.
v.
Commonwealth ex rel. Meredith, Atty. Gen. Court of Appeals of Kentucky. August 26, 1942.

1. Constitutional Law. — In determining constitutionality of statute authorizing state administrative departments to employ attorneys, Court of Appeals would not assume that the heads of departments would ignore the public good (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106).

2. Constitutional Law. — The courts do not concern themselves with the wisdom, need, or appropriateness of legislation, nor the purposes motivating it, but that is left to the General Assembly, subject to the governor's veto power.

3. Constitutional Law. — Under constitutional provision declaring void all laws contrary to the Constitution, the functions of the courts are to determine constitutional validity of and to declare the meaning of the legislative department's acts (Const. sec. 26).

4. Constitutional Law. — A statute should be held valid unless it clearly offends the limitations and prohibitions of the Constitution, and the burden is on one questioning the validity of a statute to sustain his contentions.

5. Statutes. — The purpose of constitutional provision requiring the subject of a statute to be expressed in the title is to enable persons reading the title to get a general idea of the subject treated or of the contents of the bill, and the title must give fair and reasonable notice of the statute's nature and provisions, but if the title is general, any provision having a natural connection with the subject and not foreign to it satisfies the constitutional requirement (Const. sec. 51).

6. Statutes. — An Act entitled "An Act relating to attorneys for administrative departments, agencies, divisions and independent agencies of the Commonwealth of Kentucky" is not violative of the constitutional provision requiring the subject of a statute to be expressed in the title on the ground that title did not serve notice that its scope was so broad as to affect the duties of the Attorney General and his assistants, and did not contain a statement that inconsistent laws were being repealed, since the title

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was sufficient to indicate that a change was being made in the existing laws (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106; Const. sec. 51).

7. Statutes. — The Act authorizing the state administrative departments to employ attorneys is not violative of the constitutional provision prohibiting revision or amendment of any statute without setting it out in full, where the Act did not purport to be a revision or amendment of any prior statute (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106; Const. sec. 51).

8. Statutes. — When an Act is new and independent of any existing law, it is not necessary to republish any part of another law which becomes inoperative, changed or repealed by it.

9. Constitutional Law; States. — The Act authorizing state administrative departments to employ attorneys is not unconstitutional as undertaking to "delegate legislative power" because it confers on executive departments the power to divest the Attorney General of the major portion of his powers, or unconstitutional as attempting to confer absolute and arbitrary power, or unconstitutional on the ground that the Act depends for approval on authority other than that of the General Assembly, since the Act went into effect fully when approved by the governor (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106; Const. secs. 2, 29, 60).

10. Constitutional Law. — The phrase "delegation of legislative power" in relation to constitutional limitations means delegation of discretion as to what the law shall be and does not mean that the legislature may not confer discretion in the administration of the law itself.

11. States. — Since existing statutes place upon the Attorney General the duty of furnishing legal advice and services to state administrative departments, the departments are not authorized to employ their own lawyers without partial repeal of such statutes.

12. Statutes. — The Act authorizing state administrative departments to employ attorneys is not violative of the Constitution prohibiting special legislation where a general law could be made applicable, or a violation of the prohibition against a special enactment to create public offices or to authorize officers to appoint deputies or unconstitutional as a violation of the prohibition against the legislature from enacting any special or local act by the repeal in part of a general act (Acts 1936, 1st Ex. Sess. c. 1; Acts 1942, c. 106; Const. sec. 59, subds. 18, 29 and sec. 60).

13. Statutes. — A statute which relates to persons or things of a class is a "general law" while a statute which relates to particular persons or things of a class is a "special law."

14. States. — Where Act authorizing state administrative departments to employ attorneys did not provide for salaries and fixing salaries of attorneys so employed was an administrative and not a legislative act, the act did not, by conferring upon the department

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heads and the governor power to fix salaries of attorneys so employed, contravene constitutional provision that salaries of public officers be fixed as provided for by law (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106; Const. sec. 246).

15. Attorney General. — The legislature was authorized to take away powers previously given to the Attorney General to represent state administrative departments.

16. Attorney General. — The "Attorney General" is the chief law officer of the federal and state governments with the duty of representing the sovereign, national or state, in such capacity, and unless denied by statute the Attorney General of any state is clothed with all the powers incident to his office, including the power to represent his state as its chief lawyer and to advise its several departments and officers, and the Attorney General has all his common law powers and duties except as modified by the Constitution or by statute and such as may be added thereby.

17. Attorney General. — The Attorney General of Kentucky possesses common law duties and rights (Const., secs. 91, 93).

18. Attorney General. — State executive departments, boards, or commissions may be represented by an attorney other than the Attorney General.

19. Common Law. — Under Kentucky constitutional provision that the laws of Virginia as of 1792 should be in force within Kentucky until altered or repealed by the General Assembly, the common law has been recognized as a part of Kentucky jurisprudence, except as modified by constitutional or statutory law, judicial decisions, and the conditions of the people (Const., sec. 233).

20. Attorney General. — The Kentucky constitutional provision that laws of Virginia in force in 1792 should be in force within Kentucky gives the General Assembly plenary power to abrogate or modify the common law, and when regarded with constitutional provisions that the Attorney General's duties should be such as may be prescribed by law, authorizes the legislature to do so at will (Const., secs. 91, 93, 233).

21. States. — Under constitutional provisions authorizing the General Assembly to "prescribe" the duties of the Attorney General, the General Assembly had the power to enact a statute authorizing state executive departments to employ regular counsel to have charge of their respective legal affairs, to "prescribe" meaning to direct, or to ordain, and not being confined to a positive order, but carrying the meaning of limitation or restriction (Acts 1936, 1st Ex. Sess., c. 1; Acts 1942, c. 106; Const., secs. 91, 93).

22. Attorney General. — While the Attorney General possesses all the power and authority appertaining to the office under the common law and traditionally belonging to it, the legislature may withdraw those powers and assign them to others or may authorize employment of other counsel for state departments to perform the Attorney General's powers subject to the limitation that the

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office may not be stripped of all duties so as to leave it an empty shell.

23. Attorney General. — The Act authorizing state administrative departments to employ attorneys is not invalid as depriving the Attorney General of his hereditary and statutory prerogatives to the extent that he is left without substantial duties, responsibilities and rights (Acts 1936, 1st Ex. Sess. c. 1; Acts 1942, c. 106).

Appeal from Franklin Circuit Court.

Smith & Leary and Amos H. Eblen for appellants.

Hubert Meredith, Attorney General, for appellee.

Before Wm. B. Ardery, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The circuit court adjudged unconstitutional Chapter 106 of the Acts of the 1942 General Assembly relating to the employment of attorneys by the various executive departments of the government. We summarize its provisions.

The Act provides that, with the approval of the Governor, any department, including "each and every administrative department, agency, division and independent agency" as defined in the Governmental Reorganization Act of 1936, Acts 1936, 1st Ex. Sess., c. 1, when it "deems it necessary," may employ an attorney or attorneys to render it legal services. His compensation and expenses are payable out of appropriations for the department, and the amount and terms of the employment are to be approved by the Governor's executive order. Services may be rendered more than one department or agency. The attorney shall devote his full time to the work. He is authorized to appear as chief attorney and represent the department in the trial of all cases and proceedings in any court or before any board or governmental tribunal "whenever such department or any officer or employee thereof is a party in interest or the official rights, powers or duties of the department or of any officer or employee thereof are directly or indirectly affected." Generally, the attorney is employed to...