Purnell v. Mann

• Decision Date: 04 February 1899
• Citation: 49 S.W. 346,105 Ky. 87
• Parties: PURNELL et al. v. MANN et al.
• Court: Kentucky Court of Appeals

49 S.W. 346

105 Ky. 87

PURNELL et al. v. MANN et al.

Court of Appeals of Kentucky.

February 4, 1899

"To be officially reported."

Dissenting opinion. For majority opinion see 48 S.W. 407.

GUFFY J.

The constitutionality of an act entitled "An act to further regulate elections," passed March 11, 1898, over the objections of the governor, is the sole question involved in this case. The majority opinion of the court holds the act to be constitutional. I am not able to assent to the conclusions reached by the majority opinion of the court, and the question involved is of so much importance, and in my opinion so utterly inconsistent with the principles of republican government, that I feel it to be my duty to file this dissenting opinion.

The legislature in June, 1892, enacted a general election law for the state, which may be found in chapter 41, Ky. St., and beyond question, contained complete provisions for the conduct of all elections authorized by the constitution, or laws enacted thereunder for the holding of elections including the receiving and canvassing of the returns issuing certificates of election, and providing for the trial of contested elections. The act under consideration is in conflict with many provisions of said chapter 41, and, if valid, necessarily repeals same, without making direct reference to any portion of chapter 41 so repealed, and, in my opinion, is a flagrant violation of section 51 of the constitution, which reads as follows: "No law enacted by the general assembly shall relate to more than one subject and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length." Some effect must necessarily be given to the section, supra, and the only purpose that seems reasonable is that it was intended by the provisions of said section that, whenever any act of the legislature was amended or repealed, the existing law, or at least so much thereof as was amended or repealed, should be republished in connection with such amendment or additional enactment, to the end that when presented to the legislature the members can readily see what the law would be with the amendment or repealing clause in force, and thereby be enabled to judge and determine as to whether the proposed modification should be made, or whether the original act ought to remain intact, and, besides, to enable citizens, upon an examination, to readily determine what the existing statute required by an examination of the one act. It is not material to the consideration of this question whether section 51 is a wise provision or not; but, in my mind, it is a wise and salutary provision, necessary to the intelligent discharge of legislative duties, and necessary to enable the citizens and officials of the state to readily and unmistakably ascertain the requirements of the various acts or statutes enacted for the government of the people. The act under consideration makes no reference whatever to the various portions of chapter 41, supra, which are supposed to be repealed by the act in question; and, as a matter of fact, there seems to be an honest difference of opinion among the members of the bar, if not the bench, as to how much, if any, of chapter 41 stands repealed, and how much in force. I am satisfied that the act in question is invalid because it violates or disregards section 51 of the constitution, supra, and is void for the further reason that if taken into consideration in connection with chapter 41, supra, it is uncertain as to what is the law now in force for the government and conduct of elections.

Section 6 of the constitution reads as follows: "All elections shall be free and equal." It is a well-known fact, of which courts must take judicial notice, that elections, and the general policy of the government, are conducted in and through political parties; and the act in question places it in the power of one political party to select all the state commissioners and county commissioners from one political party, and those so selected also constitute the board of contest; and it seems to me that the manifest meaning of section 6 is to forbid any such legislation. It may happen that the majority of the voters of the state might be entirely deprived of selecting a solitary one of the state or county commissioners. It is well known that in some counties one political party has the majority, and consequently has the right to select for county officers persons who sympathize with the dominant party, and it seems to me that that principle is vital to the question of well-regulated self-government; and prior to the enactment of the act in question the officers so selected by the people controlled the appointment of election officers for the several precincts, who canvassed the returns, issued the certificates of election, and also constituted the board of contest for county officers. But all this is done away with by the act under consideration, and vested in three commissioners who may all belong to the political party largely in the minority in said county, and appointed by the state board of commissioners, who owe their appointment to a party majority in the legislature.

Section 161 of the constitution reads as follows: "The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed." The act in question is a violation of section 161, above quoted, for the reason that it deprives the several county judges, clerks, and sheriffs in office at the time of its enactment of fees which under the then existing laws they were entitled to at the time of their elections; and it is no answer to this contention to say that they are relieved of duties which under the former statute they were required to perform. The evident intention of section 161 was to render every officer secure in the emoluments of the office existing at the time he was elected and also to prevent such officers from seeking to influence the legislature to increase their fees or emoluments, and is a wholesome and salutary provision. It makes the officers independent of legislative power, and also relieves the legislature from being importuned by officers to increase their fees or salaries. In the case of Bright v. Stone (Ky.) 43 S.W. 207, this court decided that an act of the legislature enacted in 1894, providing that the clerks of the various circuit courts of this commonwealth, etc., shall be entitled to, and allowed and paid by this commonwealth, a fee of five dollars for services rendered or performed by them respectively for the commonwealth in all felony cases, or prosecutions by indictment for felony, in their respective courts, except in such prosecution in which the defendant may, under a felony indictment, be convicted for misdemeanor. Bright had been elected circuit clerk in 1892, and hence the validity of section 161, supra, was directly involved; and in deciding the case the court said: "As that statute was passed after the appellant's term of office commenced, the decisive question arises whether the fees or compensation sued for come within the provisions of section 161 of the constitution, as follows: 'The compensation of any city, county, town or municipal officer shall not be changed after his...