Purnell v. Mann

• Decision Date: 10 December 1898
• Citation: 48 S.W. 407,105 Ky. 87
• Parties: PURNELL et al. v. MANN et al. [1]
• Court: Kentucky Court of Appeals

48 S.W. 407

105 Ky. 87

PURNELL et al. v. MANN et al. ^[1]

Court of Appeals of Kentucky.

December 10, 1898

Appeal from circuit court, Bourbon county.

"To be officially reported."

Agreed case between William Purnell, judge of the Bourbon county court, and others, as plaintiffs, and Russell Mann and others, as defendants, to enjoin defendants from performing the duties imposed upon them as members of the board of election commissioners for Bourbon county by the election law of March 11, 1898. Judgment for defendants, and plaintiffs appeal. Affirmed.

For dissenting opinions, see 49 S.W. 346, 50 S.W. 264.

W. H Holt, C.J. Bronston, and W. S. Taylor, for appellants.

John W Ray, for appellees.

LEWIS C.J.

The judgment before us for revision was rendered in an agreed case where appellants, Purnell, judge of the county court Paxton, clerk thereof, and Bowen, sheriff of Bourbon county seek to have appellees, Mann, Clay, and Smith, enjoined from exercising the authority conferred or performing the duties imposed upon them as members of the board of election commissioners for that county by "An act to further regulate elections," which was passed by the senate and by the house of representatives, each, on March 11, 1898, over objections of the governor. The question of law arising on the agreed facts is as to the validity of the act referred to. The general power of the judicial department of this state to decide what is the law oh each case presented necessarily includes power to inquire and determine whether a particular statute, validity of which is questioned, be consistent with or repugnant to the constitution. But not only is it expressly forbidden by section 28 of that instrument to exercise any power properly belonging to either of the other two departments, but there are salutary and inflexible rules, universally recognized in this country, by which the court is controlled in determining when it may or may not interfere to pronounce a statute void. Legislative power is, and, according to our form of government, can be, limited only by restrictions the organic law imposes. Hence, as said in Griswold v. Hepburn, 2 Duv. 20: "Whenever a jurist inquires whether a state statute is consistent with the state constitution, he looks into that constitution, not for a grant, but only for some limitation of the power inherent in the people's legislative organ, so far as not forbidden by their organic law." In City of Lexington v. McQuillan's Heirs, 9 Dana, 513, the question was as to validity of a statute by which power was given to the mayor and councilmen of Lexington to have the streets and alleys paved at expense of owners of adjacent lots; and although it was contended the statute violated the principle of equality of taxation, and disregarded the doctrine that taxation and representation should go together, the statute was upheld. In the subsequent case of City of Louisville v. Hyatt, 2 B. Mon. 177, in which arose a similar question, the court, after admitting a doubt of the validity of the statute questioned in the case of City of Lexington v. McQuillan's Heirs, used this language: "Yet it does seem to us that we would be justly chargeable with wandering from the appropriate sphere of the judiciary department were we, by subtle elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that such a power may be questionable, and on such unstable and unjudicial grounds to defy and overrule the public will clearly announced by the legislative organ. Whenever this court shall be well convinced that a legislative act is unconstitutional, it should not hesitate to pronounce it so, and therefore disregard it as void. But the policy and justice of legislation belong not to the judicial, but legislative, discretion. And to merely doubt legislative power is not enough to justify judicial resistance." It could be readily deduced from what was there said, even if it was not settled doctrine, that the judiciary cannot pronounce a statute unconstitutional and void because it may, in the opinion of the court, be impolitic, unjust, or oppressive, or because it appears to violate what might be deemed fundamental principles, or what are called the "genius and spirit of our institutions." The true and only test of the validity of a statute which the court can properly apply is whether it be in express terms or by clear implication forbidden by the constitution, and, if there be a doubt on the subject, it is the duty of the court to resolve it in favor of the validity of such statute. For the judiciary to apply any other test would be for the judiciary itself to become pro tanto lawmaker.

A statute such as the one in question, which relates exclusively to administration of the government, must be presumed by the court to have been enacted with knowledge of, and under instructions by, the people; and, if not so, it is always subject to repeal, which is the natural and safest process by which, in a government like ours, to get rid of an objectionable statute. Nevertheless the court, observing the rules mentioned, should not shrink from so pronouncing, if satisfied such statute is invalid. The general election law of June 30, 1892, being contained in chapter 41, Ky. St., is, or was intended to be, a complete system securing to every person having requisite qualifications the right and opportunity to vote, and ascertaining and declaring the true result of elections. By section 1447, being part of article 3, c. 41, Ky. St., each county court is empowered to appoint officers of election. Section 1507 provides that the judge of the county court, clerk thereof, and sheriff shall constitute a board for examining returns of elections in each county and giving certificates of election. By section 1534 the judge of each county court and two justices of the peace are constituted a board for determining contested election of county officers; and by section 1553 the governor, attorney general, auditor, and secretary of state constitute a board for determining contested elections of any officers, other than governor or lieutenant governor, elective by voters of the whole state, or of a judge of the court of appeals, circuit judge, and commonwealth's attorney. By the act in question it is provided the general assembly should elect three commissioners, styled "The State Board of Election Commissioners," which has been done; said board being empowered to appoint a "County Board of Commissioners," composed of three persons. The latter board is authorized by the act, instead of the county court, to appoint for each county officers of elections. It constitutes, instead of the county judge, clerk, and sheriff, the canvassing board for each county; and, instead of the county judge and two justices of the peace, it constitutes the contesting board for each county. It is further provided that the state board of election commissioners shall constitute, instead of the governor, attorney general, auditor, and secretary of state, a board for determining contested elections of any officer, other than governor and lieutenant governor, elective by voters of the whole state, or of a judge of the court of appeals, circuit judge, or commonwealth's attorney. The act contains other provisions, a reference to which at this place is not necessary for determination of the questions involved.

1. It is contended the statute in question was not enacted as required by section 51 of the constitution, 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." The first clause of that section was section 37 of the constitution of 1850, and the object of it was to prevent passage of any act having a title misleading or imperfect, or relating to two or more subjects foreign to each other, whereby members of the general assembly and people were deceived or misinformed as to the true or whole...