Purnell v. Mann

Decision Date25 March 1899
Citation50 S.W. 264,105 Ky. 87
PartiesPURNELL et al. v. MANN et al.
CourtKentucky Court of Appeals

"To be officially reported.'


In a dissenting opinion filed in the case of Commissioners v George (decided June 23, 1898) 47 S.W. 779, I stated a few of my objections to the act establishing a board of prison commissioners, and more especially my objections based upon the ground that the act was inherently vicious, as an invasion by the legislature of the powers of the executive. It is unnecessary here to go into the history of the constitutional provision which I think has been violated by this act. That provision was drawn by Mr. Jefferson, with the provision of the federal constitution before him, and was designed by him as an improvement upon the provision therein contained, to insure a more perfect separation of the powers and privileges of the three great departments of government than was secured by that instrument. Knowing its purpose and its author, the fathers of the Kentucky constitution adopted that provision, and it has remained unchanged in each successive constitution adopted by this commonwealth, except that the present constitution requires that each of the departments of the powers of the government shall be "confined to" a separate body of magistracy instead of "confided to," as in the previous instruments; indicating, if possible, a more earnest desire on the part of the framers for a complete separation of the powers assigned to each body of magistracy. The provision is 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 the 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 (article 1, § 1) provides only that "all legislative powers herein granted shall be vested in a congress of the United States," with similar provisions as to vesting of judicial and executive powers in the judiciary and the president, respectively. But it contains no inhibition against one of the departments exercising powers properly belonging to another, such as is contained in the Kentucky constitution.

The reasons which seemed to me sufficient to justify us in holding the act creating the board of prison commissioners unconstitutional apply with even greater force in the case at bar; for, in the former case, it could be argued with at least some show of plausibility that the prison commissioners were legislative agents. There is no pretext for holding the offices created by the act now under consideration to be agencies. They are offices, and so conceded to be. In City of Louisville v. Wilson, 99 Ky. 598, 36 S.W. 944, Chief Justice Lewis thus defined an officer: "There are various tests by which to determine who are 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." There can be absolutely no doubt that the appointees under this act are officers, within the meaning of the constitution. If so, can they be appointed or elected by the legislature?

It has been held by this court, through Chief Justice Robertson, that appointment to office is "intrinsically executive." In Taylor v. Com., 3 J. J. Marsh. 401, that great judge said: "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 the time this opinion was rendered authorized the court to appoint its own clerk. This doctrine was approved by Chief Justice Ewing in Justices v. Harcourt, 4 B. Mon. 500. Said the court: "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." It was approved in an opinion by Judge Marshall, in Gorham v. Luckett, 6 B. Mon. 159. It was again approved in an opinion by Judge Williams, in Applegate v. Applegate, 4 Metc. (Ky.) 237. It has never, so far as I have been able to ascertain, been disapproved. It has been quoted and followed upon this question in Connecticut (State v. Barbour, 53 Conn. 85, 22 A. 686) and by other courts of last resort. But this opinion, by one of the ablest, if not the ablest, of the judges who ever sat upon this bench,--whose opinions are quoted with deference by the supreme court of the United States and the courts of every state of the Union,--is overruled in the Prison Commissioners Case, and in this case, without even the poor compliment of a reference.

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 power legislative, 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 may perform 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 legislative functions, nor could the legislature delegate such power. The legislature has no more power, in my opinion, to elect or appoint such officers, than it has to enact a law providing what judgment shall be entered in a pending litigation, or than the courts would have to call out the militia.

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,--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 governor and the principal officers of the state duties pertaining to the judicial department. As the state board of tax commissioners is neither a legislative body nor a court it must belong to the executive and administrative department. That it does belong to that department, we think, is too plain for argument. It is charged with executing certain provisions of the revenue law, and when it has performed that duty its function is ended." In City of Evansville v. State, 118 Ind. 426, 21 N.E. 267, the court said: "The power to appoint to office is an executive function, and, while the legislature may...

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