Scott v. McCreary

• Decision Date: 12 June 1912
• Citation: 148 Ky. 791,147 S.W. 903
• Parties: SCOTT v. McCREARY, Governor. STOUT v. SAME.
• Court: Kentucky Court of Appeals

147 S.W. 903

148 Ky. 791

SCOTT v. McCREARY, Governor.

STOUT v. SAME.

Court of Appeals of Kentucky.

June 12, 1912

Dissenting Opinion, June 14, 1912.

Appeal from Circuit Court, Franklin County.

Action by James Andrew Scott against James B. McCreary, Governor of the State, to contest the validity of Acts 1912, c. 28 creating the Thirty-Sixth judicial district, in which Robert L. Stout filed an intervening petition, alleging that he was a resident of Franklin county and entitled to hold the office of judge of the Thirty-Sixth judicial district. From a judgment in favor of defendant and dismissing the petition in intervention, plaintiff and intervener appeal. Judgment reversed on plaintiff's appeal and affirmed on intervener's appeal.

Winn and Lassing, JJ., dissenting.

J. A Scott, Hazelrigg & Hazelrigg, and O'Rear & Williams, all of Frankfort, for appellant Scott.

T. L Edelen, of Frankfort, H. S. Barker, of Lexington, and Field McLeod and W. O. Davis, both of Versailles, for appellant Stott.

James Garnett, Atty. Gen., Cbas. H. Morris, Asst. Atty. Gen., M. M Logan, Asst. Atty. Gen., and James H. Polsgrove and Ira Julian, both of Frankfort, for appellee.

HOBSON C.J.

The last General Assembly passed an act creating the Thirty-Sixth judicial district, and providing that the district should consist of the county of Franklin, Laws 1912, c. 28. So far as material, the act is in these words:

"That whereas, in order to give due regard to territory, business and population as required by section 128 of the Constitution; and whereas, the criminal and civil docket of the Franklin circuit court, including the state fiscal business, involving large sums and a great amount of litigation of vast importance to the state, renders it impractical for the circuit judge of the Fourteenth judicial district to dispose of the same without unreasonable delay and accumulation of costs: Therefore,

"Be it enacted by the General Assembly of the commonwealth of Kentucky:

"Par. 1. That the Thirty-Sixth judicial district shall consist of the county of Franklin. ***

"The Governor shall appoint a circuit judge for said Thirty-Sixth judicial district to serve until the next regular election occurring not less than three months thereafter, when said office shall be filled by election."

This suit was brought to contest the validity of the act. R. L. Stout, the circuit judge of the Fourteenth judicial district, which embraced the county of Franklin, filed his petition in the action, alleging that he was a resident of the county of Franklin, and so entitled to hold the office of judge of the Thirty-Sixth judicial district. On the hearing of the action, the circuit court held the act valid, and dismissed Judge Stout's petition. From this judgment, the appeals before us are prosecuted.

Sections 128, 132, 134, and 138, of the Constitution are as follows:

"At its first session after the adoption of this Constitution, the General Assembly, having due regard to territory, business and population, shall divide the state into a sufficient number of judicial districts to carry into effect the provisions of this Constitution concerning circuit courts. In making such apportionment, no county shall be divided, and the number of said districts, excluding those in counties having a population of one hundred and fifty thousand, shall not exceed one district for each sixty thousand of the population of the entire state." Section 128.

"The General Assembly, when deemed necessary, may establish additional districts; but the whole number of districts, exclusive of counties having a population of one hundred and fifty thousand, shall not exceed at any time one for every sixty thousand of population of the state according to the last enumeration." Section 132.

"The judicial districts of the state shall not be changed except at the first session after an enumeration, unless upon the establishment of a new district." Section 134.

"Each county having a city of twenty thousand inhabitants, and a population, including said city, of forty thousand or more, may constitute a district, and when its population reaches seventy-five thousand, the General Assembly may provide that it shall have an additional judge, and such district may have a judge for each additional fifty thousand population above one hundred thousand. And in such counties the General Assembly shall, by proper laws, direct in what manner the court shall be held and the business therein conducted." Section 138.

It will be observed that by section 128 the General Assembly, having due regard to territory, business, and population, must divide the state into a sufficient number of judicial districts to carry into effect the provisions of the Constitution; that in making such apportionment no county shall be divided, and the number of districts, excluding those in counties having a population of 150,000, shall not exceed one district for each 60,000 of the population of the entire state. By section 132, the General Assembly, when deemed necessary, may establish additional districts; but the whole number of districts, exclusive of counties having a population of 150,000, shall not exceed one for every 60,000 of population of the state, according to the last enumeration. By section 134, the judicial districts of the state shall not be changed, except at the first session after an enumeration, unless upon the establishment of a new district. And by section 138, each county having a city of 20,000 inhabitants and a population, including the city, of 40,000 or more may constitute a district. Franklin county, by the last enumeration, had a population of 21,135, and it had in it the city of Frankfort, which, by that enumeration, had a population of 10,465. It will be observed that section 132, limiting the number of districts which the General Assembly may create, bases it upon the population of the state, according to the last enumeration, and this limitation is also referred to in section 134; but no such limitation is contained in section 138. A county having a city of 20,000 inhabitants and a population, including the city, of 40,000 or more, in fact, may constitute a district, although its population, according to the last enumeration, may be less than this. In the case before us, it is averred in the petition that the population of the county is less than 40,000, and that it contains no city of 20,000 inhabitants, and these allegations are admitted by the demurrer to be true; but it is insisted that, notwithstanding this, the act is valid. Several reasons have been assigned to sustain this view.

One reason assigned is that the word "may" in section 138 should be read as "must," and that the section means that, where a county has a city of 20,000 inhabitants and a population, including the city, of 40,000 or more, it must constitute a district. We are referred to a number of cases in which statutes containing the word "may" have been construed as though the word "must" was used, where duties were imposed affecting the rights of the public; but we have not been referred to any case where this rule of construction has been applied to a state Constitution. The words of a state Constitution are usually selected with great care; and so solemn an instrument should be read as written, unless upon the clearest evidence that the makers of the instrument intended otherwise. We see nothing in the provisions of the Constitution quoted to justify such a construction here. The Legislature is required to have due regard to territory, business, and population in dividing the state into circuit court districts. They are to consider the business, no less than the territory and population; and it cannot reasonably be inferred that the framers of the Constitution contemplated that the Legislature should not take into consideration the amount of business in a county containing a city having 20,000 inhabitants and a population, including the city, of 40,000 or more.

Another reason assigned is this: It is said that there are a number of counties in the state having no city of 20,000 inhabitants, but having a rapidly increasing population, which will soon be more than 40,000, and where there are several towns in a county, and its population and business require a court of continuous session, the Legislature has the power to make such county a district under section 128; and that section 138 should be construed so as to permit a county having a city of 20,000 and a population, including the city, of 40,000 or more to be made a separate district, regardless of the business done there; but we cannot believe that the makers of the Constitution, who were practical men, had any such distinction in mind. They were providing for the dispatch of the judicial business of the state, and they did not intend to permit the Legislature, in creating judicial districts, to lose sight of the necessities of business. Giving section 138 this construction would, in our opinion, be practically to eliminate it from the Constitution; for it would have, under such a construction, no practical meaning or effect. The other sections would have expressed this meaning, if section 138 had been omitted from the instrument.

When the makers of the Constitution provided that a county, under certain conditions, may constitute a district, they, by necessary implication, provided that a county should not constitute a district, unless these conditions existed. A state Constitution is to be construed in the natural sense of the terms used; for it has been adopted by the people, and derives its entire force from that fact. The people who adopted it could only judge of its provisions by reading it and when the sections of the Constitution, above...