Rouse v. Johnson

• Decision Date: 27 May 1930
• Citation: 234 Ky. 473,28 S.W.2d 745
• Parties: ROUSE et al. v. JOHNSON et al.
• Court: Kentucky Court of Appeals

28 S.W.2d 745

234 Ky. 473

ROUSE et al. v. JOHNSON et al.

Court of Appeals of Kentucky

May 27, 1930

Dissenting Opinion, June 3, 1930.

Appeal from Circuit Court, Franklin County.

Suit by Arthur B. Rouse and others against Ben Johnson and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

WILLIS J., dissenting.

E. C O'Rear and Overton S. Hogan, both of Frankfort, and William Marshall Bullitt, of Louisville, for appellants.

J. W Cammack, Atty. Gen., Clifford E. Smith, Asst. Atty. Gen., and John C. Doolan, of Louisville, George R. Hunt, of Lexington, J. R. Layman, of Elizabethtown, Coleman Taylor, of Russellville, and G. B. Martin, of Cattlettsburg, for appellees.

THOMAS C.J.

This action, filed in the Franklin circuit court by appellants and plaintiffs below against appellees and defendants below, challenges the validity of an act of the 1930 session of the General Assembly of this commonwealth known as House Substitute for Senate Bill No. 35, and it hereinafter will be referred to as the "New Act." It repealed and supplanted a prior existing statute relating to the same subject of road construction and which repealed and supplanted statute we shall hereafter refer to as the "Old Act." The old act designated the governmental agency provided by it for the execution of its purposes as the "State Highway Commission," which was composed of four members to be appointed by the Governor, one each from districts created by the act. The same agency created by the new act is designated therein as "The State Highway Commission of Kentucky," and consists of eight members to be appointed from the same number of districts created by it, but the power to appoint the eight commissioners provided for by that act was taken away from the Governor and lodged with an "Appointing Board" therein provided for and to consist of the Governor, Lieutenant Governor and Attorney General. After the enactment of the new act, and its taking effect immediately thereafter because of an emergency clause therein, the appointing board therein provided designated the eight defendants as members of the state highway commission of Kentucky created by that act and they were confirmed by the senate as provided for therein.

After the passage of the new act, and before the Legislature adjourned, the Governor, acting upon the theory that the new act was unconstitutional and invalid, sent to the Senate for confirmation the names of the plaintiffs as members of the commission provided for in the old act; but that body declined to confirm their appointment upon the theory that the old act, under which the appointment was attempted to be made, had been repealed by the new one and that there were no longer such officers as members of the old "State Highway Commission." After the adjournment of the Legislature, and acting upon the same theory, the Governor appointed plaintiffs as interim members of the commission created by the old act and they then filed this action against defendants, contesting their right to function under the new act upon the ground that it was unconstitutional and invalid and for which reason it did not repeal the old act, and that plaintiffs were entitled to discharge the duties sought to be taken from them by the new act and imposed upon the members of the commission created by it. Defendants demurred to the petition but without waiving it filed their answer denying all of the grounds of attack and contending that the new act was valid and within the power and authority of the Legislature to enact. The court, however, sustained their demurrer to the petition and plaintiffs declining to plead further it was dismissed, and to reverse that judgment they prosecute this appeal

The only grounds, as contained in the petition and argued by learned counsel for plaintiffs, to sustain the contention that the new act is unconstitutional and invalid, were and are: (1) That it is in violation of sections 27 and 28 of our Constitution in that it attempts to confer executive power upon the Lieutenant Governor, which office, as is also contended, is primarily and essentially a legislative one and that the incumbent in the office may not be vested by the Legislature with the executive authority to appoint to office, and that the attempt by the Legislature in the new act to do so, or to annex such a duty to his office, constitutes an unlawful effort to confer upon him executive power when, as contended, he is only a legislative officer and which is in violation of section 28 of the Constitution, saying: "No person, or collection of persons, being of one of those departments [the division of governmental powers of the commonwealth made by section 27 of the Constitution, and which are, legislative, executive and judicial], shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted"; and (2) that the new act offends section 152 of the Constitution in that it authorizes the filling of vacancies in the commission created by it by the appointing board instead of by the Governor who, as contended, is given the sole authority by section 152 of the Constitution to fill such vacancies.

It is also contended, as was averred in the petition, that another act passed by the 1930 session of the Legislature, known as Senate Bill No. 188, is invalid and unconstitutional for certain argued reasons; but because of the conclusions we have reached we do not regard it necessary to determine that question, which only affects the title of plaintiffs to the offices as members of the commission created by the old act, because their appointments were not confirmed by the Senate as prescribed in Senate Bill No. 188, but were rejected by that body and they were rendered by that act ineligible for recess appointment by the Governor to the same offices after the adjournment of the Legislature. But, for the reason stated, that question will not be determined in this opinion but will be left open.

The contention of learned counsel for plaintiffs that an officer, whose duties appertain exclusively to one of the three departments of government created by the Constitution, may not exercise power and perform functions and duties appertaining exclusively to another of such departments, is not and cannot be questioned, since this court in almost numberless cases, as well as all other courts wherein the same constitutional provision exists, has so held and determined. One of the latest from this court so doing is that of Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, wherein other prior cases, both domestic and foreign, are cited and referred to.

At the outset, and before adverting to the relevant constitutional provisions, it might be well to note that state Constitutions do not delegate power to the Legislature of the state, which body has all power unless prohibited or limited by the Constitution. In other words, state Constitutions unlike the federal one only prescribe inhibitions and limitations upon legislative power and that unless the legislative body is so prescribed and limited by the Constitution its authority is unlimited and it may enact upon any subject in the mode and manner it sees proper. Cooley's Constitutional Limitations, (8th Ed.) vol. 1, p. 96.

With equal propriety and relevancy it should also be remembered that the express mentioning in, and conferring by, a constitutional provision of named powers and duties without a further provision confining them to those so expressly named, does not create an inhibition upon the Legislature from prescribing and annexing other duties appertaining to the same department of government, including powers and duties of a constitutional officer if that be the subject-matter upon which the Constitution has spoken without limiting the Legislature to what it (the Constitution) has prescribed. As a concrete example of that proposition: the Constitution in conferring upon an official created by it certain duties, or certain powers without any inhibition against the Legislature conferring others of a similar nature, will not prevent the latter from conferring upon that office other similar duties and powers appertaining to the particular department to which the office belongs, and which principle grows out of the one above mentioned; i. e., that a state Constitution is not a grant of powers to the Legislature, but only a limitation upon them. Having said this much we will now turn our attention to the constitutional provisions bearing upon the legal questions at issue.

It will be observed that the inhibition in section 28 of our Constitution against a person or persons belonging to one of the three departments of the state exercising power and authority belonging to either of the others, has an exception saying: "Except in the instances hereinafter expressly directed or permitted"--and it is to be ascertained, as the opinion proceeds, whether or not there is such an exception in other provisions of the Constitution concerning the office of Lieutenant Governor, and also to determine to which department the officer properly belongs.

The published Constitution, as it now appears in Carroll's 1930 Edition of the Kentucky Statutes, and as it has appeared since it was adopted, is divided under different headings among which are, the "Legislative Department," the "Judicial Department," and the "Executive Department." We have not examined the finished and enrolled copy of our present Constitution and do not know whether such divisions appear in it or not, but we have examined the certified and published proceedings of that convention, including the debates of its members as well as its organization, and from which it is disclosed that there were...