Miller v. Johnson

• Decision Date: 16 February 1892
• Citation: 18 S.W. 522,92 Ky. 589
• Parties: Miller et al. v. Johnson et al.
• Court: Kentucky Court of Appeals

18 S.W. 522

92 Ky. 589

Miller et al. v. Johnson et al.

Court of Appeals of Kentucky.

February 16, 1892

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by S. F. Miller and others, voters and tax-payers, against E P. Johnson and another, the public printer, and the secretary of state, to enjoin the one from printing the instrument promulgated by the constitutional convention, and to enjoin the other from preserving it among the state archives as the constitution, and also asking that it be declared spurious and invalid. Judgment for defendants. Plaintiffs appeal. Affirmed.

Holt C.J.

The question presented is a grave and exceedingly important one. It reaches to the very foundation of constitutional government. Little aid in arriving at a correct solution of it is furnished by precedent. Little if, indeed, any authority of direct bearing can be found. Under the provisions of the constitution of 1849, steps were taken to form a new one. We must assume, in view of what has taken place, that they were legal. As the result the legislature passed the act of May 3, 1890, providing for the calling of a convention for such purpose, and the election of delegates. It provided that, before any form of constitution made by them should become operative, it should be submitted to the voters of the state, and ratified by a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having been taken, to call a convention for "the purpose of readopting, amending or changing" it, but contains no provision giving the legislature the power to require a submission of its work to a vote of the people. The convention met in September, 1890 and having in April, 1891, completed a draft of a constitution, it by ordinance submitted it to a popular vote and then adjourned until September following. During the recess the work was approved by a majority of nearly 140,000; the total vote cast being 288,360. When the convention reassembled, the delegates, moved no doubt by patriotic impulse, made numerous changes in the instrument, some of which are claimed to be material, while others were but a change of language or the correction of grammatical errors; and, as thus amended, it was promulgated by the convention on September 28, 1891, as the constitution of the state.

The appellants, who are voters and taxpayers, suing for themselves, and, per an order of court, for all others united with them in interest, as provided by our Code of Practice, shortly thereafter brought this action against the public printer and the secretary of state, to enjoin the one from printing at the public expense the instrument] so promulgated, and the other from preserving it in the state archives as the constitution of the state, and also asking that it be adjudged not to be such, but spurious and invalid. This is asked upon the ground that the instrument promulgated by the convention is not the one adopted by the vote of the people, owing to the changes subsequently made in it. It is urged upon the part of the appellees that the appellants' suit is based upon a speculative idea of injury, and that no such special, particular, and substantial damage is impending to them as to authorize it; also, that the action does not lie against the appellees, because the printing or preservation of the instrument will not add to or detract from its validity. We waive the consideration of these objections, because, even if entitled to it, the importance of this controversy to the state requires a decision upon the merits.

It is conceded by all that the people are the source of all governmental power; and, as the stream cannot rise above its source, so there is no power above them. Sovereignty resides with them, and they are the supreme law-making power. Indeed, it has been declared in each of the several constitutions of this state that "all power is inherent in the people;" and this is true, from the very nature of our government. It is contended by some, however, that inasmuch as the then existing constitution provided for the calling of a convention by the legislature, without giving the latter the power to direct a submission to a vote of the people of the proposed new one, and gave the power to the convention to make one, therefore it was not necessary to its validity to submit it to a popular vote, and that in attempting to require this the legislature exceeded its power. In other words, that the convention had plenary power in the matter, not because of ultimate sovereignty, but because the constitution gave it; that it submitted its work to the people merely to know if it pleased them; and that the legislature could no more control them in this matter than it could in the framing of the instrument. Others contend that a ratification by a popular vote is necessary in all cases; that the attempted limitation upon the power of the convention by the legislature was valid, and, even if not, yet, as delegates were elected under the statute, and with the understanding, probably, upon the part of the people, that they were to pass upon the work, and as the convention actually submitted it to them, that the determination by the principal was final, and terminated the power of the agent. Each of these various views is supported by more or less authority; but we need not determine which of them is, in our opinion, correct, because another question, properly in advance, presents itself.

If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? Does its determination fall within the organic power of a court? It is our undoubted duty, if a statute be unconstitutional, to so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very different case. It may be said, however, that, for every violation of or non-compliance with the law, there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits. It is a duty, rather than a power. The judiciary cannot compel a co-equal department to perform a duty. It is responsible to the people; but if it does act, then, when the question is properly presented, it is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention.

After the American Revolution the state of Rhode Island retained its colonial charter as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held, resulting in the election of a convention to form a new one,-it to be submitted to a popular vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers, who proceeded to organize a new government. The charter government did not acquiesce in these proceedings, and finally declared the state under martial law. It called another convention, which in 1843 formed a new constitution. Whether the charter government, or the one established by the voluntary convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a political, question; and, the political department having recognized the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the federal court was bound by the decision of the state court, yet in the argument approves it, and in substance says that where the political department has decided such a matter the judiciary should abide by it.

Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention, when it reassembled, had no power to make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument. Then, next, this court must determine what amendments were material; and we find the court, in effect, making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and immaterial, were void; another, that the convention had the implied power to...