Shaw v. Fox

• Decision Date: 06 December 1932
• Parties: SHAW v. FOX, County Judge.
• Court: Kentucky Court of Appeals

55 S.W.2d 11

246 Ky. 342

SHAW v. FOX, County Judge.

Court of Appeals of Kentucky

December 6, 1932

Appeal from Circuit Court, Jefferson County; Common Pleas Branch First Division.

Action by James S. Shaw against H. I. Fox, County Judge. From the judgment, plaintiff appeals.

Affirmed.

Maddox Parmalee and Hardin H. Herr, both of Louisville, for appellant.

Arthur B. Bensinger, Harris Coleman, and Emmet R. Field, all of Louisville, for appellee.

RICHARDSON J.

The General Assembly at its 1932 session passed an act (chapter 147) which became a law without the signature of the Governor, entitled: "An Act to provide for the more efficient and economical administration of justice in courts of justices of the peace in counties containing a population in excess of two hundred fifty thousand (250,000), and to reduce the number of magisterial districts therein, by amending and re-enacting section one thousand seventy-nine (1,079) of the Kentucky Statutes; to provide for the costs and fees thereof and for the payment of the same to the county; for certain reports relating thereto; to fix the compensation and duties of justices of the peace, constables and recorders therein; for the appointment and payment of recorders and assistants, defining their duties and requiring bonds therefrom, with surety; defining certain duties of constables and deputy constables, requiring bonds therefrom fixing the places of holding such courts and providing for the equipment and maintenance of such places; fixing the filing fees, and providing for rules of practice in said courts and fixing penalties for the violation by said officers of their duties."

James S. Shaw, a resident, taxpayer, and voter of Jefferson county Ky. instituted this action in the Jefferson circuit court challenging its constitutionality, and asked an injunction against the county judge of the county, permanently restraining him from dividing the county into three magisterial districts, or otherwise recognizing its validity. A summary of its sections is: Section 1 provides when it takes effect; section 2, that the money collected by justices, constables, deputy constables, shall go to the general fund of the county; section 3, the justices shall receive a salary to be paid by the county; section 4, authorizes the employment of clerks or recorders to be paid a salary by the county in lieu of all other compensation; the fees allowed by law to the justices, constables, and deputy constables shall be turned over by them to the county commissioners or fiscal court; section 5 provides how the records of the justices court shall be kept; section 6, for the delivery of all fees to the recorders by the justices, constables, and deputy constables; section 7 requires a report thereof by the recorders to the fiscal court, and that the recorders shall deposit the funds at certain times in the bank; section 8 fixes the liability of the recorders and deputy recorders; section 9 provides for the payment of constables and deputy constables by the fiscal court; section 10 requires the fiscal court to designate a place whereat in each magisterial district in the county the justices of the peace shall hold all sessions of their courts, and where the records of their offices shall be kept, and that the fiscal court shall furnish the offices with the necessary equipment; section 11 requires the justice of the peace to collect $1 in each original civil action or proceeding at the time of its commencement, as costs to be turned over to the fiscal court; section 12 provides for the justices to make rules of the courts consistent with the civil and criminal code of practice to be entered on the records of the courts; sections 13 and 14 fix the punishment of the justices, constables, deputy constables, recorders, and deputy recorders for violating any provision of the act; section 15 provides that the act shall apply only to counties having 250,000 population, and authorizes and directs the dividing of the county into three magisterial districts; section 16 provides for partial invalidity; section 17 repeals conflicting laws.

The grounds of Shaw's attack are: It is a local or a special or class legislation within subsection 1, § 59, subsection 18 of section 59; subsection 29 of section 59 of the State Constitution, and that it also violates sections 51, 60, 106, and 246 thereof.

In the consideration of his presentation, it must be recognized that there is an established distinction between a special and a local law and class legislation and a general law.

Special legislation is thus defined in Jefferson County v. Cole, 204 Ky. 27, 263 S.W. 1114, as: "'Special legislation' is such as relates either to particular persons, places, or things, or to persons, places, or things which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for such legislation, be applied."

A "local law" is one whose operation is confined within territorial limits other than those of the whole state, or any properly constituted class or locality therein.

"Class legislation" is such as concerns and operates upon a portion of a particular class of persons or things, and therefore partakes of a private act.

A law is general when it is by its terms, intendment, and phraseology, uniform in its operation, and operates alike and equally on all persons or things, as a class, throughout the state, under the same circumstances. The test in determining whether a law is special or local or general, is, "Does it embrace all of the class to which it relates?" Whether it is the one or the other is not to be determined by its form, but its substance. King v. Com., 194 Ky. 150, 238 S.W. 373, 22 A. L. R. 535; Ross v. County Board, 196 Ky. 366, 244 S.W. 793; Jefferson County v. Cole, 204 Ky. 27, 263 S.W. 1114. The mere fact that its practical effect is special, or local, does not necessarily bring it within the constitutional provisions against special, or local or class legislation. Com. v. Thomas' Adm'r, 140 Ky. 789, 131 S.W. 797.

In Sutherland on Statutory Construction (2d Ed.) § 203, it is written: "Whether or not an act is class legislation, or whether or not it is a general or special law, depends fundamentally upon a question of classification. Where an act is assailed as special or class legislation, the attack is necessarily based upon the claim that there are persons or things similarly situated to those embraced and which by the terms of the act are excluded from its operation. The question then is whether the persons or things embraced by the act form by themselves a proper and legitimate class with reference to the purpose of the act. It is agreed on all hands that the constitution does not forbid a reasonable and proper classification of the objects of legislation. The question is, what is reasonable and proper in the premises?"

Class legislation is permissible under our constitution, and is repugnant thereto only when it comes within either of the terms, special or local law or class legislation, as above defined. State Racing Commission v. Latonia Agricultural Ass'n, 136 Ky. 174, 123 S.W. 681, 25 L. R. A. (N. S.) 905; Com. v. Ward, 136 Ky. 146, 123 S.W. 673; Douglas Park Jockey Club v. Talbott, 173 Ky. 685, 191 S.W. 474; Jewell Tobacco Warehouse Company v. Kemper, 206 Ky. 667, 268 S.W. 324.

"Classification is a necessary feature and power of legislation, as it is impossible for any extensive code of laws to apply to every person or subject in the state." City of Louisville v. Com., etc., 134 Ky. 488, 121 S.W. 411, 413.

The power of classification for legislative purposes rests with the Legislature, subject to the constitutional limitation or restriction that it must rest on some natural and reasonable difference which appears reasonable and just in relation to the act in respect to which the classification is proposed. The Constitution permits the Legislature to indulge in making classifications of subjects of legislation for the purpose of making different classes, for the meeting of different contingencies, naturally requiring different legislation in order that the Legislature may adopt general legislation to meet the needs of the people, to promote some public object, or the welfare or interest of the general public. Smith et al. v. Board of Trustees, 171 Ky. 39, 186 S.W. 927; Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460. Such classification will not be disturbed by the court unless so manifestly unfounded, arbitrary, or unjust as to impose a burden upon, or exclude, one or more of a class, without reasonable basis in fact. City of Louisville v. Coulter, 177 Ky. 242, 197 S.W. 819, L. R. A. 1918A, 811; Mansbach Scrap Iron Co. v. City of Ashland, 235 Ky. 265, 30 S.W.2d 968; Jones v. Russell, supra.

No general rule can be stated by which a reasonable basis of Legislative classification may be predicated, nor can it always be determined by analogy. The basis of classification of every act must be considered singly in the light of certain fundamental principles which are generally accepted by the courts. In ascertaining and determining the constitutionality of an act, it is a fixed rule of the courts to resolve all doubts in its favor (Coleman v Hurst, 226 Ky. 501, 11 S.W.2d 133); nor will the courts inquire into and consider the practicability, the expediency, or the wisdom of the enactment. Coleman v. Hurst, supra. The only question to be determined by the court is one of constitutional inhibition, limitation, or restriction. State Budget Commission v. Lebus, 244 Ky. 700, 51 S.W.2d 965. Our Constitution does not delegate the power to make, nor does it prohibit the making of, classifications of subjects by the Legislature for legislative purposes, but...