Ragland v. Anderson

• Citation: 100 S.W. 865,125 Ky. 141
• Parties: RAGLAND v. ANDERSON. TINSLEY, CLERK, v. KEOWN.
• Decision Date: 20 March 1907
• Court: Kentucky Court of Appeals

100 S.W. 865

125 Ky. 141

RAGLAND v. ANDERSON.

TINSLEY, CLERK, v. KEOWN.

Court of Appeals of Kentucky.

March 20, 1907

Appeal from Circuit Court, Butler County.

Appeal from Circuit Court, Ohio County.

"To be officially reported."

Suits by S. A. Anderson against M. S. Ragland, as chairman of the Republican committee of the Twenty-Fifth legislative representative district, and by C. P. Keown against W. S Tinsley, clerk of the Ohio county court. From a decree in favor of complainants in each case, defendants appeal. Affirmed.

Lewis McQuown, Barnett & Smith, M. L. Heavrin, and Jas. S. Morris for appellants.

Wm. H Holt, George Durell, W. C. Halbert, and Worthington &amp Cochran, for appellees.

BARKER J.

These cases involve the constitutionality of an act of the General Assembly of the commonwealth of Kentucky, entitled "An act dividing the state of Kentucky into 100 representative districts," approved March 23, 1906 (Acts 1906, p. 472, c. 139). They were heard together, and, as they involve the same question, will be treated as one case in this opinion.

In the first case, S. A. Anderson filed a petition in equity in the Butler circuit court, alleging that he was a citizen, taxpayer, and voter of that county; that he possessed all of the qualifications to be a representative in the Legislature of Kentucky, and was an announced candidate for the Republican nomination for the office of representative from the district composed of Butler and Edmonson counties; that by an act of the General Assembly of May 3d, 1893, Butler and Edmonson counties constituted the Twenty-Fifth legislative district, which was entitled to have one representative in the Legislature; that by the act of March 23d, 1906, Ohio county was joined with Butler and Edmonson counties, and designated as the Twenty-Sixth district; that the defendants (appellants) were the Republican chairmen of the three counties, and under their party law constituted the committee of the district thus created, and that this committee have ordered a primary election to be held in the three counties to name a Republican candidate for the office of representatives; that the plaintiff (appellee) is a resident of Butler county, and entitled to be elected by the voters of Butler and Edmonson counties; that the defendants are proposing to and will hold a primary election for representative for the district composed of Ohio, Butler, and Edmonson counties; and that the plaintiff will be compelled to submit his claims to the voters of the three counties, instead of to the voters of Butler and Edmonson counties, unless the defendants are enjoined from so doing. In the second case, the appellee Keown filed a petition in the Ohio circuit court, averring that he was a citizen, taxpayer, and voter of that county, and possessed all of the qualifications of a representative of the Legislature of Kentucky, and he seeks an injunction against the clerk of Ohio county restraining him from refusing to place his name upon the official ballots of that county, and also to restrain him from placing the names of candidates from either of the other counties--Butler or Edmonson--on the official ballots of Ohio county.

In both petitions it is alleged that the act of March 23d, 1906, is unconstitutional and void, because it violates section 33 of the Constitution of Kentucky, in that the representative districts constituted by it are grossly unequal both in population and area. In speaking of the inequality of the act under discussion it is alleged as follows:

"It not only in many instances joins more than two counties together to form a representative district--in some cases three, as in the so-called Twenty-Sixth, Seventy-Third, and Ninety-Fifth districts; in some, four, as in the so-called Seventieth and Seventy-First districts--but many of the districts are grossly and outrageously unequal in population, and so much so as not to approximate equality, but shows plainly that the alleged law does not follow even the principle of equality, but violates it so grossly as to show that the principle and constitutional rule of equality was not applied at all, but entirely ignored. Thus, according to the census of 1900, Kentucky had a population of 2,147,174, making the average for a representative district 21,471. Under said invalid act 24 of the 100 districts named in it have a population and area as follows:

District.	County.	Population.	Area.
99	Spencer	7,407	204
25	Wolfe	8,764	239
29	Hancock	8,914	195
41	Bullitt	9,602	301
57	Anderson	10,051	224
30	Meade	10,533	304
32	Larue	10,764	299
78	Boone	11,170	242
21	Simpson	11,624	190
63	Jessamine	11,925	160
67	Garrard	12,042	234
85	Bracken	12,137	193
---------	---------	-----------	-----
12	Counties	124,933	2,785

These counties are hardly entitled to 6, but are given 12 representatives.

Average, one county to district; population, 10,411; area, 232.

District.	County.	Population.	Area.
100	Elliott and Carter	30,615	770
88	Fleming and Bath	31,808	589
3	Graves	32,204	550
89	Lewis and Greenup	33,300	794
71	Jackson, Owsley, Perry, and Letcher,	34,883	1,240
97	Floyd, Knott, and Magoffin	36,262	1,028
10	Christian	37,962	694
98	Boyd and Lawrence,	38,446	608
95	Pike, Johnson, and Martin,	42,196	1,250
69	Whitley and Knox	42,387	930
70	Laurel, Rockcastle, Clay, and Leslie	53,125	1,610
26	Ohio, Butler, and Edmonson,	53,263	1,241
---------	------------------------------------	-----------	------
12 29	counties	466,451	11,304
Average	2.41	38,871	942

These counties are entitled to 22, but are given 12 representatives.

These groups have a population and area as follows:

	Population.	Area.
The first group .......	124,933	2,785
The second group ......	466,451	11,304
	-----------	------
Difference .........	341,518	8,519

Spencer county, with a population of 7,407, and an area of 204 square miles, is given one representative, while Ohio, Butler, and Edmonson, with a combined population of 53,263, and an area of 1,241 square miles, is given only one representative.

District.	County.	Population.	Area.
99	Spencer	7,407	204
26	Ohio, Butler, and Edmonson	53,263	1,241
		-----------	-----
		45,856	1,037

The Twenty-Sixth district is more than seven times as large in population as the Ninety-Ninth, the difference being more than enough to constitute two average districts. By this arrangement one citizen of Spencer county has nearly as much voice in the Legislature as eight citizens of Ohio, Butler, and Edmonson.

The said 100 districts attempted to be created by the said unconstitutional act are not by a great deal as nearly equal as may be without dividing any county, except where a county may include more than one district; and the state can be divided into 100 representative districts, which would be approximately equal in population, without dividing any county, except where a county may include more than one district."

Without analyzing the allegations of the petitions with overnice particularity, it is deemed sufficient to say that, in our opinion, they contain such a statement of facts with reference to the inequality of the representative districts of the state that the demurrers, which confess these allegations, raise sufficiently for adjudication the validity of the act which is assailed. The allegations upon which is predicated the infirmity of the act are substantially the same in both petitions. General demurrers were filed to each of them, and overruled by the trial courts. The defendants declined to answer, and thereupon judgments were entered holding the act of the General Assembly under discussion invalid, and perpetuating the temporary injunctions which had been granted at the commencement of the actions. From these judgments the defendants have appealed.

Section 33 of the Constitution is as follows: "The first General Assembly after the adoption of this Constitution shall divide the state into thirty-eight senatorial districts, and one hundred representative districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district, which district shall constitute the senatorial and representative districts for ten years. Not more than two counties shall be joined together to form a representative district: Provided, in doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the General Assembly shall then, and every ten years thereafter, redistrict the state according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of population should be unavoidable, any advantage resulting therefrom shall be given to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous."

The first proposition with which we are confronted is raised by the insistence of appellants, that the question involved here is political, and not judicial, and that the courts have not jurisdiction to review the acts of...