Pratt v. Breckinridge

• Decision Date: 29 January 1902
• Citation: 112 Ky. 1,66 S.W. 405
• Parties: PRATT v. BRECKINRIDGE.
• Court: Kentucky Court of Appeals

66 S.W. 405

112 Ky. 1

PRATT v. BRECKINRIDGE.

Court of Appeals of Kentucky.

January 29, 1902

"To be officially reported."

Petition for rehearing. Denied.

For former report, see 65 S.W. 136.

GUFFY C.J.

The reasons and authorities in the opinion rendered herein, as to the power of the legislature to appoint election commissioners, are so conclusive of the question that I shall not make any response to the petition, in so far as it assails the opinion on that question. The power of the legislature to create separate courts or tribunals, for the sole purpose of trying contested elections, and rendering final judgment therein, is of so much practical and far-reaching importance that I deem it proper to respond to some of appellee's contentions, and to discuss some of the former decisions of this court relied on by appellee.

It is the contention of appellee that the constitutionality of the act creating the election board and conferring upon it the powers in question has been decided by this court and its constitutionality upheld (referring to Purnell v Mann, 48 S.W. 407, 50 S.W. 264), and that the constitutionality was again affirmed by this court in the case of Sweeney v. Coulter, 58 S.W. 784; and it is insisted for appellee that numerous cases have been decided since the adoption of the present constitution upholding the exercise of judicial power by the contest board. It is also suggested that so many decisions upholding this board of contest should be conclusive of the constitutionality of the board. It is further contended that section 153 of the constitution expressly authorized the legislature to create a board for the trial of contested elections. Said section reads: "Except as otherwise herein expressly provided the general assembly shall have power to provide by general law for the manner of voting, for ascertaining the results of elections and making due returns thereof, for issuing certificates or commissions to all persons entitled thereto and for the trial of contested elections."

Appellee cites Purnell v. Mann (Ky.) 48 S.W. 407. The question presented for decision in that case was as to the power of the county commissioners to exercise the authority conferred upon them by the state commissioners. That question, of course, involved the question of the power of the state commissioners to make the appointments. It is true that the court seems to have held the entire act constitutional. But courts do not feel bound by decisions or opinions on questions not before the court at the time for decision. The opinion in the case does decide that the act authorizing the state commissioners to appoint county commissioners is constitutional, and it thus became certain that they were executive officers; and, this being true, it may well be argued that they could not exercise judicial power because forbidden by sections 27 and 28 of the constitution, which sections are as follows:

"Sec. 27. The powers of the government of the commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

"Sec. 28. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."

It is a familiar rule of law that part of an act of the legislature may be held valid and the residue invalid. It might be conceded, but I do not concede it, that all the powers attempted to be conferred by the act in question were valid except the power to try contested elections, and still the judgment appealed from might properly be held void because the board had no power to try and determine the contest. We deem it not improper to remark that the decision in the case supra was by a divided court, three of the judges dissenting. It is, however, urged for appellee that, under the former constitution, certain executive officers were authorized to hear and determine contested elections, and that the validity of the same was never questioned, and the former constitution had the same provisions as now appear in sections 27 and 28 of the present constitution. It must, however, be remembered that the validity of the act was never called in question, at least not directly denied, in any proceeding. We call to mind but one contested case that ever came before the board under the former constitution, viz., the Cochran-Jones Case. It may be that this court recognized the validity of the act in discussing the case of Com. v. Jones, 10 Bush, 725. The board had decided that Jones was ineligible to the office of clerk of the court of appeals because he had accepted a challenge to fight a duel, and therefore declared the office vacant. Jones continued to discharge the duties of the office, and was indicted for usurpation. The court, as I understand the decision, had but one question before it for decision; viz., did the board have authority to hear and determine whether Jones had violated the law against dueling, and, if he had done so, to adjudge him not entitled to the office? The court held that the board had no such authority, and Jones continued to hold the office. No other question was involved in the decision of the board, and no other question could be involved in the decision. The opinion expressed by the court in discussing the question is entitled to much respect, but is no authority.

Attention is also called to the fact that since the adoption of the present constitution the legislature enacted the same or a similar law, and that its validity remained unquestioned. It is true that such a law was enacted, and one contested election case tried by it. The question of its constitutionality was not raised before the board, nor was the case or question before any court. It may, however, be safely said that some lawyers questioned the constitutionality of the act during the pendency of that contest. The contestant failed, and the successful candidate resigned the office; hence there was no reason for an appeal to the courts.

The opinion in Poyntz v. Shackelford (Ky.) 54 S.W. 855, does not affect the question under consideration. After the commissioners had issued certificates of election to the state officers, including appellant, who had received the greatest number of votes according to the returns, two of the commissioners, Messrs. Pryor and Ellis, resigned, and Poyntz appointed Judge Fulton, and he and Fulton appointed Mr. Yonts to fill the vacancy. Gov. Taylor also appointed Messrs. Mackoy and Cochran. Poyntz brought suit to enjoin Shackelford from administering the oath of office, etc., to Cochran and Mackoy. The circuit judge granted the injunction, and in the same order dissolved it, and Poyntz applied to a judge of this court to reinstate the same. By consent of the judges, the motion was heard by the whole court as a court. Two questions only were presented for decision, and only two were decided, viz.: Had there been an injunction granted and dissolved? or, in other words, was the action of the circuit judge such as to present a case for reinstatement of an injunction? The court in a majority opinion decided in favor of Poyntz, which decision has, however, been overruled in a later opinion by a majority of the court. The other question was as to whether the appointing power vested in the governor or in Poyntz, and the court decided that question in favor of Poyntz.

The case of Sweeney v. Coulter (Ky.) 58 S.W. 784, is also cited. The principal question discussed in the opinion was the right of appellant to dismiss his appeal without prejudice. The judgment in that case had been rendered at the same term of the circuit court that the judgment in the case at bar was rendered. Sweeney appealed, and superseded the judgment. Soon thereafter appellee, Coulter, procured a copy of the record, and filed it in the clerk's office of this court, and soon afterwards moved to affirm as a delay case, and appellant moved to dismiss the appeal without prejudice. The court refused to sustain either motion, but finally advanced the case, and decided that appellee was entitled to have the case tried, and that appellant could not dismiss the appeal without prejudice. The judgment appealed from was affirmed. The question of the constitutional power of the board to hear and determine the contest does not seem to have been discussed at length. The court, however, assumed that this court in Purnell v. Mann had decided that the commissioners could lawfully hear and decide the contest. So it may be taken that this court, by a bare majority, did hold that act to be valid in a case where and when it was directly in issue. The decision supra was rendered October, 1900. If the decision was not a correct exposition of the law at the time, we are unable to perceive any good reason why it should be adhered to.

Courts sometimes refuse to overrule a former decision for the reason that contracts had been made upon the faith thereof, and that all persons had a right to rely upon the soundness of such opinion, and had parted with valuable rights upon the faith of such decision. But no such reason exists in this case. The appellee had selected the board in question, or the tribunal to try his contest, months before the rendition of the opinion in Sweeney v. Coulter. The board had decided in his favor, and he had obtained the judgment appealed from, before the rendition of said opinion. No other case will be affected by the decision in this case. The board no longer exists; hence no other case can arise involving the question now before us, at...