Sibert v. Garrett

• Decision Date: 15 December 1922
• Parties: SIBERT ET AL. v. GARRETT ET AL.
• Court: Kentucky Court of Appeals

246 S.W. 455

197 Ky. 17

SIBERT ET AL. v. GARRETT ET AL.

Court of Appeals of Kentucky.

December 15, 1922

Appeal from Circuit Court, Franklin County.

Action by William L. Sibert and others against H. Green Garrett and others. From an adverse judgment, plaintiffs appeal. Affirmed.

Clay J., dissenting.

Alexander P. Humphrey and W. A. Perry, both of Louisville, and Robt. C Simmons, of Covington, for appellants.

Chas I. Dawson, Atty. Gen., and Hazelrigg & Hazelrigg, of Frankfort, for appellees.

THOMAS J.

This action involves the constitutionality of an act attempted to be passed at the 1922 session of the General Assembly of Kentucky, commonly known as the "Simmons Road Bill," and which is printed beginning on page 459 in the published acts of that session as an "appendix." It is entitled "An act to amend an act relating to roads and bridges," etc., and it repeals in part and amends chapter 17 of the Acts of 1920, p. 76. The latter act created a commission composed of four members to be known as the "state highway commission," and it, by the terms of the act, was authorized to administer and perform all the duties belonging to the department of public roads in and for the commonwealth. The members of the commission in that act were appointed by the Governor, and its duties and the tenure of office of the members are set out in the act, and which are not necessary to repeat here. The 1922 act involved in this litigation amended in various respects the 1920 act, two of which were that the first members of the commission were selected by the act itself, and thereafter it was provided that the members should be elected by the Legislature, and salaries were attached to the position, whereas there were none in the 1920 act.

The constitutionality of the 1922 act is assailed on a number of urged grounds, but only three of which do we consider of sufficient materiality to deserve our consideration, and they are: (1) That the Legislature possessed no constitutional right to name in the bill the first members of the commission, or to elect their successors thereafter; (2) because the act carried with it an appropriation of money for the payment of the designated salaries of the members of the commission, and it received but 19 votes in the Senate, whereas an appropriation bill, under the provisions of section 46 of the Constitution, must receive a majority of all the members elected to each house, and the 19 votes which the act received in the Senate was not a majority of that body; and (3) that the Lieutenant Governor did not sign or affix his signature to the enrolled bill within the contemplation of section 56 of the Constitution. This action to test the validity of the act was filed by some of the designated members in it against others who declined to join as plaintiffs, and against the members of the commission under the 1920 act. Defendants set up in their answer the various grounds relied on as rendering the act unconstitutional, to which a demurrer was filed, which was overruled, and, plaintiffs declining to plead further, the act was adjudged unconstitutional, and the petition was dismissed, whereupon plaintiffs prosecute this appeal.

Ground (1) urged against the validity of the statute, it is claimed by defendants, finds support in the provisions of sections 27 and 28 of our Constitution, the first of which says:

"The powers of the government of the commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

While the language of the next one is:

"No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."

It is insisted that the filling of an office or the selection or designation of the person clothed with official functions is essentially an executive duty and properly belongs to the executive department, and that by the terms of the above sections of the Constitution the Legislature is forbidden to exercise it, but, if not strictly so, that the officer should be appointed by that department with which his duties are allied and closely connected, and that in either event it was incompetent for the Legislature to name in the act, or to subsequently elect, the members of the state highway commission created thereby, whose duties are strictly and essentially executive or administrative, the latter of which is a part of, and belongs to, the executive department.

Able briefs are filed by counsel for both sides exhibiting a most exhaustive research of the decisions involving the question and of the statements by law-writers upon the subject, many of which are cited and relied on by respective counsel as supporting their divergent views; and in some instances counsel rely upon the same case or cases or upon the same text-book authority, because of different constructions each of them places thereon. Counsel for appellants include the following as supporting their contention, viz.: Little v. Willimon, 103 S.C. 50, 87 S.E. 435; Hovey v. State, 119 Ind. 395, 21 N.E. 21; Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98; Richardson v. Young, 122 Tenn. 471, 125 S.W. 664; Cox v. State, 72 Ark. 94, 78 S.W. 756, 105 Am.St.Rep. 17; Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L.R.A. 115; State v. George, 22 Or. 142, 29 P. 356, 16 L.R.A. 737, 29 Am.St.Rep. 586; People v. Freeman, 80 Cal. 233, 22 P. 173, 13 Am.St.Rep. 122; Dunbar v. Cronin, 18 Ariz. 583, 164 P. 447; 12 Corpus Juris, 836; 22 R.C.L. 426; McArthur v. Nelson, 81 Ky. 67; Sinking Fund Commissioners v. George, 104 Ky. 260, 47 S.W. 779, 20 Ky. Law Rep. 938, 84 Am.St.Rep. 454; and the three closely following cases of Purnell v. Mann, 105 Ky. 87, 48 S.W. 407, 49 S.W. 346, 50 S.W. 264, 20 Ky. Law Rep. 1146, 1396, 21 Ky. Law Rep. 1129; Poyntz v. Shackelford, 107 Ky. 546, 54 S.W. 855, 21 Ky. Law Rep. 1323; and Sweeney v. Coulter, 109 Ky. 295, 58 S.W. 784, 22 Ky. Law Rep. 885. While appellees' counsel rely upon the cases of State v. Washburn, 167 Mo. 691, 67 S.W. 592, 90 Am.St.Rep. 430; State ex rel. v. St. Louis, 216 Mo. 94, 115 S.W. 534; Same v. Gordon, 236 Mo. 166, 139 S.W. 403; State v. Denny, 118 Ind. 382, 21 N.E. 252, 4 L.R.A. 79; Same v. Hyde, 121 Ind. 20, 22 N.E. 644; Same v. Peelle, 121 Ind. 496, 22 N.E. 654; State v. Gorby, 122 Ind. 17, 23 N.E. 678; People v. Bledsoe, 68 N.C. 460; Stockman v. Leddy, 55 Colo. 25, 129 P. 220, Ann.Cas. 1916B, 1052; Appeal of Norwalk St. Ry. Co., 69 Conn. 576, 37 A. 1080, 38 A. 708, 39 L.R.A. 794; State v. Barker, 116 Iowa 96, 89 N.W. 204, 57 L.R.A. 244, 93 Am.St.Rep. 223; State ex rel. v. Kennon, 7 Ohio St. 546; Robey v. Prince George's County, 92 Md. 151, 48 A. 48; State v. Brill, 100 Minn. 499, 111 N.W. 294, 639, 10 Ann.Cas. 425; Curtis v. Cornish, 109 Me. 384, 84 Atl. 799; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Supervisors of Election, 114 Mass. 247, 19 Am.Rep. 341; Meechem on Public Officers, § 107; 22 R.C.L. 424; and the domestic cases of Taylor v. Commonwealth, 3 J. J. Marsh. 401, and Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 66 S.W. 405, 23 Ky. Law Rep. 1356, 1858.

To notice in detail all of the cases relied on by both sides, or to discuss the grounds upon which the court in each of them rested its opinion, and to point out the distinguishing features between many of them, would expand this opinion to the dimensions of an ordinary size law book, which we do not regard as necessary to a statement of our position and the reasons therefor, even if the crowded time of this court did not warn against it.

Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution, which history tells us came from the pen of the great declaimer of American independence, Thomas Jefferson when delegates from Kentucky, just after it was admitted to the Union, waited upon him, and he penned for them the substance of what is now section 28, supra, of our Constitution, containing an affirmative prohibition against one department exercising powers properly belonging to the others, and which without it contained only the negative prohibition found in section 27 of that instrument, and which was the extent of the separation of the powers found in the federal Constitution and in those of a number of the states composing the confederated Union at that time. Following the adoption of our first Constitution, other incoming states, either in their first Constitutions or in subsequent ones, copied, either literally or in substance, the two sections of our Constitution, and the courts of some of them have announced divergent views as to the proper construction of the two sections, and in nearly every instance the opinion was made to turn upon the existence of some fact or facts extraneous to their language, notably among which were other provisions of the Constitution containing them, and which were made to apply to the particular facts under consideration, and thereby furnished the reason for the particular conclusion reached; while another instance was that the appointment to the particular office involved, in the manner then being tested, had been exercised in that manner under a prior Constitution containing the same clauses as the subsequent one, and it was held that such contemporaneous construction of the prior Constitution was adopted as part of the subsequently framed one. In...