Nagel v. Bosworth

• Citation: 148 Ky. 807,147 S.W. 940
• Parties: NAGEL v. BOSWORTH, Auditor, et al.
• Decision Date: 13 June 1912
• Court: Court of Appeals of Kentucky

147 S.W. 940

148 Ky. 807

NAGEL v. BOSWORTH, Auditor, et al.

Court of Appeals of Kentucky.

June 13, 1912

Appeal from Circuit Court, Franklin County.

Action by Charles W. Nagel against Henry Bosworth as auditor and others. From an order sustaining a demurrer to the petition plaintiff appeals. Reversed and remanded.

Lassing and Winn, JJ., dissenting in part.

Brent Spence and Ramsey Washington, both of Newport, for appellant.

James Garnett, Atty. Gen., for appellee Bosworth. Hazelrigg &amp Hazelrigg, of Frankfort, for appellee Hodge.

HOBSON C.J.

The last General Assembly passed an act adding one additional judge to the circuit court for the Seventeenth circuit court district which embraces the county of Campbell, and this suit was brought to test the validity of the act; it being alleged in the petition that the county has not a population of 75,000 inhabitants, but only a population, according to the last enumeration, of 59,369, and less than 61,000 in fact at the present time. The defendants demurred to the petition and their demurrer was sustained. The plaintiff stood upon his petition and appeals.

The constitutional provisions involved are those quoted in the opinion in the case of Scott v. McCreary, Governor, 147 S.W. 903, decided June 12, 1912, and for the reasons set out in that opinion we conclude that, as the county of Campbell has only a population of 61,000, the Legislature was without power, under the Constitution, to give it an additional judge, and that the act is void. The act, so far as material, reads as follows:

"Whereas, the population of the Seventeenth circuit court district now exceeds seventy-five thousand inhabitants, and, whereas, it is impossible for one judge to dispose of the business of said court, with reasonable dispatch, and the number of cases upon the docket of said court is constantly increasing, therefore,

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

"Section 1. That one additional judge of the circuit court for the Seventeenth circuit court district is hereby authorized and added to said court.

"Sec. 2. Such additional judge shall preside over the criminal, common law and equity division of said court.

"Sec. 3. Within sixty days after this act shall have become operative the Governor shall appoint a person having the qualifications of a circuit judge to preside over the criminal, common law, and equity division of the Seventeenth circuit court district, who, when appointed, shall be commissioned by the Governor as judge of such division of the Seventeenth circuit court district, and shall enter upon the duties of the office as soon as he shall have qualified, and shall continue in office until the first Monday in January, nineteen hundred and thirteen, and until his successor is elected and shall have qualified."

The act was approved by the Governor March 19, 1912, and contained an emergency clause. The Governor shortly thereafter appointed and commissioned Hon. John T. Hodge as the judge. It will be observed that on the face of the act it is not subject to any constitutional objection as it shows that the county has the necessary population, and Judge Hodge, having been commissioned by the Governor under an act fair on its face has color of title to the office. Although it turns out that the act is unconstitutional for the reason that the county has not the necessary population, Judge Hodge is a de facto officer, and his acts before the statute is adjudged unconstitutional are valid. State v. Gardner, 54 Ohio St. 24, 42 N.E. 999, 31 L. R. A. 660; Burt v. Winona, etc., R. R. Co., 31 Minn. 472, 18 N.W. 285, 289; Lang v. Bayone, 74 N. J. Law, 455, 68 A. 90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391, 12 Ann. Cas. 961; Donough v. Dewey, 82 Mich. 309, 46 N.W. 782; Parker v. State, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119, 18 L. R. A. 567; People v. Bangs, 24 Ill. 184; Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478. A contrary conclusion is not to be drawn from the case of Hildreth v. McIntire, 1 J. J. Marsh. 206, 19 Am. Dec. 61. In that case the Legislature undertook by statute to abolish the court of appeals established by the Constitution and to create another court of appeals in lieu of it. The act on its face was a palpable violation of the Constitution as the Legislature was without power to create a court of appeals, but not so is the act here. The Legislature has power to create a circuit court, and, under certain conditions, to add an additional judge. The act that it passed showed that the conditions existed which warranted it to create an...