APPEAL FROM FRANKLIN CIRCUIT COURT.
JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.
Several important constitutional questions are involved in this case. During the last session of the Legislature an act was passed, entitled "An act to create a Board of Penitentiary Commissioners and regulate the penal institutions of this Commonwealth." Section 1 reads as follows: "That a board of commissioners is hereby created to govern the penitentiaries of this Commonwealth. Said board shall consist of three members, to be elected by the General Assembly on or before the 10th day of March, 1898. One of whom shall hold his office to be determined by lot of commissioners elected, for the term of two years, one for the term of four years and one for the term of six years, or until their successors are elected and qualified. * * * *" It is contended that the Legislature could not constitutionally pass the act and elect the commissioners; that the election of the commissioners is an executive, not a legislative, function. There is no express power conferred upon the executive department by the Constitution to appoint such officers or agents which the General Assembly may designate for the direction or control of the penitentiaries. Neither is such power implied from any provision of the Constitution. There is no provision of the Constitution which places any limitation on the power of the legislative department to name or select the officers or agents necessary to properly manage the penal institutions. Neither is there any provision of the Constitution from which it can be
fairly implied that the legislative department shall not elect or select those who may aid or control in the conduct of the affairs of the penal institutions. When the Constitution has imposed no limits upon the legislative power, it must be considered practically absolute. Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is the exception. When one questions the legislative power to pass a statute, he should show that the Constitution expressly prohibits its enactment, or that such prohibition is fairly implied from its provisions. The court said in the case of Slack, &c., v. Maysville & Lexington R. R. Co., 13 Ben Monroe, 22, that: "It would be difficult, perhaps impossible, to define the extent of the legislative power of the State, unless by saying that, so far as it is not restricted by the higher law of the State and Federal Constitutions, it may do everything which can be effected by means of a law. It is the great, supervising, controlling, creative, and active power in the State, subject to the fundamental restrictions just referred to. Whatever legislative power the whole Commonwealth has is by the Constitution vested in the legislative department, which, representing the popular majorities in the several local divisions of the State, and under no other restraint but such as is imposed by the fundamental law, by its own wisdom, and its own responsibilities, may regulate the conduct and command the resources of all, for the safety, convenience, and happiness of all, to be promoted in such manner as its own discretion may determine. The legislative department performs and finishes its office by the mere enactment of a law. It does not of itself carry the law into operation. This
is necessarily done by extrinsic agencies. The law, being made known, may be universally observed or obeyed. It may be enforced by the judiciary, or by the co-operation of the judiciary and the executive. These are the regular agencies provided by the Constitution for the execution of the laws. But the Legislature is not restricted to these agencies. It may select or appoint others, as is often done, when the object of the law is to accomplish local or individual purposes. The agency generally employed for applying the legislative will and the power of the government to purposes merely local has been that of county courts for counties, and of the trustees of towns or the municipal authorities of cities for towns or cities, which, to the extent of the powers permanently or temporarily vested in them, and whether allowed a discretion or not, do but carry into effect the legislative will and power. But these local agencies are selected, and some of them created, by the Legislature itself, for the purpose of carrying its power into all parts of the Commonwealth, or into such parts as require its application for their benefit or coercion. And the Legislature may select other agencies for particular purposes, having in view, as it must be presumed to have, the nature of the object to be accomplished, and the fitness of the agency selected." It was said in People v. Draper, 15 N. Y. 543, that: "The people, in framing the Constitution, committed to the Legislature the whole law-making power of the State which they did not expressly or impliedly withhold. Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity
to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legislative power contained in the instrument. * * * It follows that it belongs to the Legislature to arrange and distribute the administrative functions, committing such portions as it may deem suitable to local jurisdictions, and retaining other portions to be exercised by officers appointed by the central power, and changing the arrangement from time to time as convenience, the efficiency of administration, and the public good may seem to require. If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motives may have been which led to its enactment. There is room for much bad legislation and misgovernment within the pale of the Constitution; but, whenever this happens, the remedy which the Constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary. The courts can not impute to the Legislature any other than public motives for their acts. If a given act of legislation is not forbidden by express words or by necessary implication, the judges can not listen to a suggestion that the professed motives for passing it are not the real ones. If the act can be upheld upon any views of necessity or public expediency which the Legislature may have entertained, the law can not be challenged in the courts." Chief Justice Marshall said in Fletcher v. Peck, 6 Cranch, 87: "How far the power of giving the law may involve every other power, in cases where the Constitution is silent, never has been, and
perhaps never can be, definitely stated." The General Assembly is elected by the people. Presumably, it knows what laws should be enacted for their benefit, and for the public good. If a law is within constitutional limits, a court can not intervene and declare it invalid because, in its opinion, the law is unwise. Upon this subject Mr. Cooley (Const. Lim. 200, 201) says: "The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not, in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people, in their sovereign capacity, can correct the evil; but courts can not assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It can not run a race of opinions upon points of right, reason, and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution, and the case shown to come within them."
The legislative department for a great many years retained control over the penitentiary, and during that time, under the law then in force, elected the warden, who had the authority to select his subordinates. The
members of the constitutional convention well knew that the Legislature had been assuming that, under the Constitution, it had the right to so control the penitentiary and elect the warden. Notwithstanding the Legislature had been exercising the right to so elect the warden, the framers of the present Constitution failed to place an inhibition in it against the exercise of such power by the Legislature. Besides, it is provided in section 93, of the Constitution, that "Inferior State officers, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified." Section 107 of the Constitution provides that "the General Assembly may...
