Johnson v. Commonwealth ex rel. Meredith

• Court: Court of Appeals of Kentucky
• Citation: 291 Ky. 829,165 S.W.2d 820
• Parties: JOHNSON, Governor, v. COMMONWEALTH ex rel. MEREDITH, Atty. Gen.
• Decision Date: 26 August 1942

165 S.W.2d 820

291 Ky. 829

JOHNSON, Governor,
v.
COMMONWEALTH ex rel. MEREDITH, Atty. Gen.

Court of Appeals of Kentucky

August 26, 1942

Rehearing Denied Dec. 8, 1942.

Appeal from Circuit Court, Franklin County; Wm. B. Ardery, Judge.

Action between Keen Johnson as governor of the Commonwealth of Kentucky, etc., and Commonwealth of Kentucky on relation of Hubert Meredith as Attorney General of the Commonwealth of Kentucky. From an adverse judgment, Keen Johnson appeals.

Reversed. [165 S.W.2d 822]

Smith & Leary and Amos H. Eblen, all of Frankfort, for appellants.

Hubert Meredith, Atty. Gen., for appellee.

STANLEY, Commissioner.

The circuit court adjudged unconstitutional Chapter 106 of the Acts of the 1942 General Assembly relating to the employment [165 S.W.2d 823] 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 advise and to perform all legal services pertaining to the official duties of the department. It is further provided, however, that nothing in the Act shall be construed to affect the tenure or compensation of any assistant attorney general now serving pursuant to law or to limit the right of any department or agency to require the services of the Attorney General and his assistants "as now provided by law." The Act repeals Section 112-5 of the Statutes, and all other laws and parts of laws to the extent that they conflict with its terms.

The Attorney General vigorously assails the Act as a vicious "Ripper Bill," iniquitous in purpose, dangerous in operation, opposed to our scheme of government, subversive of sound public policy, and unconstitutional withal. Including the Governor's office there are 22 administrative departments and independent agencies other than the Department of Law (the Attorney General's office) established by the "Governmental Reorganization Act" of 1936 (§ 4618-70, Statutes) and under some of those there are several divisions and agencies which possibly could also employ separate attorneys. The Act is indeed so broad in its scope as to be fraught with opportunities for abuse and extravagance and productive of conflict and confusion in the legal representation which has heretofore been centralized in the Attorney General and his staff. If the authority given by the Act should be exercised in its entirety, the Attorney General would be relieved of many present duties and stripped of many prerogatives which that officer has hitherto performed and enjoyed under statutory direction and authorization or through immemorial custom. However, it is not to be assumed that the attitude of the chief executive and the responsible heads of the departments will be so antag onistic to the public welfare that they shall concur to such an extent that the feared evils will result. It is not supposed they will take their eyes off the public good.

Be that as it may, it is a principle, basic in its recognition and fundamental to the co-ordination of the two divisions of governmental power, that the courts do not concern themselves with the wisdom, need or appropriateness of legislation, nor the purposes motivating it. That is left where it is put by the Constitution--in the General Assembly, subject only to the veto power of the Governor. Section 26 of the Constitution declares that all laws "contrary to this Constitution, shall be void." Our functions are to determine the constitutional validity and to declare the meaning of what the legislative department has done. We have no other concern.

And we have been sensitive to the rule that an Act should be held valid unless it clearly offends the limitations and prohibitions of the constitution, within which is everything contrary to the policy and genius of our form of government. So, always the burden is upon one who questions the validity of an Act to sustain his contentions.

The primary thesis of the Attorney General is as above indicated. We first dispose of other grounds of attack.

The title is: "An Act relating to attorneys for administrative departments, agencies, divisions and independent agencies of the Commonwealth of Kentucky."

The point is made that this fails to meet the requirements of Section 51 of the Constitution, that the subject of an act shall be expressed in the title. It has been frequently written that the purpose of this provision is to enable persons reading the [165 S.W.2d 824] title to get a general idea of what subject is treated or what the bill contains; that the title must give fair and reasonable notice of its nature and provisions. Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623; State Athletic Control Board v. Blake Amusement Co., 249 Ky. 358, 60 S.W.2d 950. It is different where the title is specific. As lately said in Board of Education v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337, 340:

"It has been the consistent interpretation of this section of the Constitution that if the title of an act is general then any provision in the body having a natural connection with the subject expressed in the title and not foreign to it satisfies the requirement of the Constitution."

It is submitted that the title to the bill did not serve notice that its scope was so broad as to affect the office and duties of the Attorney General and his assistants; that the title suggested only that attorneys for the administrative departments and bureaus were being dealt with and not the Attorney General and his department. We do not regard it as so restrictive. We think it is germane to the indicated scope to provide not only for the employment of attorneys by the departments and agencies, but to repeal, expressly or generally, conflicting laws, including those vesting powers, duties and rights in the Attorney General. As was well known, from time immemorial the Attorney General had advised and represented all the executive departments of government. To say in the title that the act relates to the employment of attorneys by those departments is to indicate that a change is being made in the existing laws. It did not have to contain a statement that inconsistent laws were being repealed. We conclude the title good and sufficient. Charles v. Flanary, 192 Ky. 511, 233 S.W. 904; Link v. Commonwealth, 205 Ky. 243, 265 S.W. 804; Bowman v. Hamlett, 159 Ky. 184, 166 S.W. 1008; Eastern Ky. Coal Lands Corp. v. Commonwealth, 127 Ky. 667, 106 S.W. 260, 108 S.W. 1138; Estes v. State Highway Commission, 235 Ky. 86, 29 S.W.2d 583; State Budget Commission v. Adams, 249 Ky. 680, 61 S.W.2d 314; Game & Fish Commission v. Talbott, 251 Ky. 268, 64 S.W.2d 889; Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244; Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757; Burton v. Mayer, 274 Ky. 245, 118 S.W.2d 161.

Nor do we think the Act offends that part of Section 51 of the Constitution which prohibits the revision or amendment of any statute without setting it out in full as it will be when so changed. This Act does not purport to be a revision or amendment. When an act is new and independent of any existing law it is not necessary to republish any part of an old law which becomes inoperative, changed or repealed by it. Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017.

It is contended that since the Act permits the employment of an attorney "when any department deems it necessary," and at the same time provides that any department or agency may require the advice or services of the Attorney General and his staff, it violates other provisions of the Constitution. It is argued the Act undertakes to delegate legislative power, contrary to Section 29, because it confers on the several executive departments and the Governor the power to divest the Attorney General of a major portion of his powers and prerogatives, and by their ipse dixit to render inoperative or to repeal for a time and then to render operative and effective again the various sections of the statutes conferring those powers and prerogatives; that it leaves the creation and the existence or non-existence of the office of departmental counsel wholly to their discretion and that is done without any standard being established or any uniform rule of action laid down or factual condition found to exist. It is charged that the hypothesis or condition that "when any department deems it necessary" is an "undefined, unrestricted and boundless" authority. Upon the same reasoning it is contended the Act violates Section 2 of the Constitution as being an attempt to confer "absolute and arbitrary power," and Section 60 providing that "No law *** shall be enacted to take effect upon the approval of any other authority than the general assembly."

It seems sufficient to express the opinion that all these arguments rest upon a false premise. The taking effect of the Act is not made dependent upon the will of...