Pratt v. Breckinridge

• Decision Date: 20 November 1901
• Citation: 112 Ky. 1,65 S.W. 136
• Parties: PRATT v. BRECKINRIDGE. [1]
• Court: Kentucky Court of Appeals

65 S.W. 136

112 Ky. 1

PRATT v. BRECKINRIDGE. ^[1]

Court of Appeals of Kentucky.

November 20, 1901

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by Robert J. Breckinridge against Clifton J. Pratt to recover an office. Judgment for plaintiff, and defendant appeals. Reversed.

W. O Bradley, M. C. & G. D. Givens, T. L. Edelen, and C. P Motley, for appellant.

W. S Pryor and Hazelrigg & Chenault, for appellee.

GUFFY J.

Appellee brought suit in the Franklin circuit court against appellant alleging that they were the candidates of their respective parties and voted for at the general election of November 7, 1899, for the office of attorney general; that the state board of election commissioners canvassed the returns of the election, and determined upon the face of the returns that appellant was elected, and thereupon awarded him a certificate of election, whereupon he qualified and entered upon the discharge of his duties; that appellee gave appellant notice that he would contest the election before the state board of election commissioners, sitting as a contest board, upon various grounds, and did so contest the election before that board, as a result of which the board adjudged that appellee had received the highest number of legal votes cast for the office and was elected thereto, and that appellant was not elected, and thereupon issued to appellee a certificate that he had been elected to the office of attorney general and was entitled thereto. Copies of the notice of contest, the proceedings of the board thereunder, its judgment, and the certificate delivered to appellee were filed as exhibits with the petition. The prayer was for the possession of the office, and for an injunction restraining appellant from interfering with appellee in the discharge of the duties thereof, and from claiming to have title thereto. In various regards and upon various grounds appellant, by answer and counterclaim, called in question the validity of the election law of 1898, under which the state beard of election commissioners was organized and had acted, and also the validity of the action of the board in the trial and decision of the contest. The prayer of the answer and counterclaim was that appellee should be adjudged to have no title to the office, that appellant should be adjudged entitled thereto, and that appellee should be restrained from attempting to exercise the duties thereof. A demurrer filed to the petition was overruled, but was carried forward to the answer, sustained, and a judgment rendered in accordance with the prayer of the petition.

"An act to further regulate elections," adopted by the legislature on March 11, 1898 (Act 1898, p. 43), over objections by the governor, under which act the state board of election commissioners was organized, is inherently vicious, because an invasion by the legislature of the powers of the executive. The provisions embodied in sections 27 and 28 of the constitution, and which, in substantially the same words, have been embraced in every constitution of the state, were drawn by Mr. Jefferson as an improvement upon the provision of the federal constitution, designed by him to insure a more perfect separation of the powers of the three great departments of government than was secured by that instrument, and their adoption by the convention was accomplished by the power of his name:

"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."

The constitution of the United States contains a similar division of powers, but without the inhibition against one department exercising powers which properly belong to another.

There is no pretext that the offices created by the act in question are legislative agencies. They are offices coming fully within the test defined by Chief Justice Lewis in City of Louisville v. Wilson, 99 Ky. 598, 36 S.W. 944: "There are various tests by which to determine who are the officers in the meaning of the law, but at last, in case of uncertainty, the intention of the lawmakers controls. To constitute an officer, it does not seem to be material whether his term be for a period fixed by law, or endure at the will of the creating power; but if an individual be invested with some portion of the functions of the government, to be exercised for the benefit of the public, he is a public officer." The power of appointment to office was, in an opinion by Chief Justice Robertson delivered in 1830, in Taylor v. Commonwealth, 3 J. J. Marsh. 401, held to be "intrinsically executive." Said the court in that case: "And, although the constitution has confided to the courts the appointment of their own clerks, still the nature of the power is not changed. It is essentially executive, whensoever or by whomsoever it may be exercised. It is as much executive when exercised by the court as by the governor. It is the prerogative of appointing to office, and is of the same nature, whether it belonged to the court or to the governor." The constitution in force at that time authorized the court to appoint its own clerk. So, in Justices v. Harcourt, 4 B. Mon. 500, it was said in an opinion by Chief Justice Ewing: "But this power is an executive, and not a judicial, power. It appertains to and is exercised in aid of the appointing power, which is executive, and not judicial." This doctrine was approved in an opinion by Judge Marshall in Gorham v. Luckett, 6 B. Mon. 159, and again in Applegate v. Applegate, 4 Metc. 237. This doctrine has been quoted and followed by many courts of last resort. Until the legislation of 1898 was under consideration, it seems never to have been disapproved in this state, and then the cases in which it had been adjudged were not mentioned. By section 29 of the constitution, the "legislative power" is vested in a house of representatives and a senate, together styled the "General Assembly." The legislature, being by this grant vested with all legislative power, may do everything that can properly be done by the enactment of a law, and in addition thereto may do everything that by the constitution it is expressly directed or permitted to do. Each house may perform the executive act of electing its own officers (sections 34 and 249), and the judicial acts of judging of the qualifications, elections, and returns of its members (section 38), punishing disorderly behavior and expelling members (section 39). The framers of the constitution having deemed it necessary to expressly permit the legislature to exercise the executive power of appointment in specified cases, this permission, by implication, forbids the legislature to exercise such power in any other case. The creation of an office is accomplished by the exercise of legislative power. It is done by the enactment of a law. The filling of it, when not exercised by the people, or in some manner directed or permitted by the constitution, is executive, and must be performed by an executive officer. The congress of the United States, deriving its authority from a constitution which does not contain the inhibition of section 28 of the Kentucky constitution, has never passed an act which created an office, and at the same time filled it. Only once has it attempted to do so. It is not denied that the legislative department can appoint or elect an officer when the duties of the office appertain to that department. And in this is found whatever justification exists for the legislature's election of the state librarian,-- an office which, without any violent stretch of construction, may be considered as appertaining to the legislative department. But, while the three commissioners provided for in this act are both executive and judicial officers, they are not in any sense legislative. They perform executive functions in appointing to and removing from office and in canvassing the returns, and judicial functions in deciding contests. But they perform no functions connected with the legislature. The legislature has no more power to elect or appoint such officers than it has to enact a law providing the judgment to be entered in a pending litigation.

In State v. Kennon, 7 Ohio St. 547, it was said: "The official or unofficial character of the officers is to be determined *** by the nature of the functions devolving upon them. *** To prescribe the manner of election or appointment to office is an ordinary legislative function. To make an appointment is an administrative function." The Ohio constitution forbids the exercise of the appointing power by the legislature, but the court is here discussing the nature of the function. In Langenberg v. Decker, 131 Ind 478, 31 N.E. 193, 16 L.R.A. 112,--and the Indiana constitution contains a provision like ours,--it was said: "The powers of these departments are not merely equal. They are exclusive in respect to the duties assigned to each, and they are absolutely independent of each other. The encroachment of one upon the other is watched with jealous care, and is generally promptly resisted, for the observance of this division is essential to the maintenance of a republican form of government. *** It cannot be contended that the state board of tax commissioners belongs to the legislative department. *** It cannot be successfully maintained that the legislature could confer upon the...