Smith v. Commonwealth
| Decision Date | 09 September 1871 |
| Citation | 71 Ky. 108 |
| Parties | Smith v. Commonwealth and Robert Cochran. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
I. & J CALDWELL, MUIR & BIJUR, BULLOCK & ANDERSON, For Appellant,
Act of June 3, 1865, Session Acts, chapter 1838, page 141.
Act of March, 1870, 2 Session Acts, chapter 786, page 449.
Act of February 28, 1871.
Sedgwick on Statutory and Constitutional Law, 190.
Constitution of Kentucky, section 37, article 2.
3 Statute Laws, 1835, title 35, page 157.
7 Connecticut, 451, United Society v. Eagle Bank.
2 J. R 235, page 744, Rogers v. Bradshaw.
15 Barbour, 621, Ruford v. Knight.
12 Texas, 399-402, Cannon v. Vaughan.
2 Bibb 80, Commonwealth v. English.
2 Bibb 96, Adams v. Ashby.
5 Monroe, 157, Wallace v. Young.
2 Exchequer Reports, 22, Moon v. Dunson.
7 J. R. 477, Dash v. Van Bleek.
2 Hill, 238, Johnson v. Burrett.
26 Mississippi Reports, 270, Boyd v. Barrenger.
2 Alabama Reports, new series, 33, Wammack v. Halloway.
2 Blackstone's Commentaries, 36, 263.
4 Bacon's Abridgment, office I. S. 297.
2 Duvall, 480, O'Donoghue v. Akin.
THOS. B. FAIRLEIGH, For Appellee,
15 B. Monroe, 48, Maysville & Lexington T. P. R. Co. v. Punnett.
3 Dana, 600, Isaacs v. Taylor.
2 Bibb, 556, Piatt v. Alloway.
4 Metcalfe, 236, Applegate v. Applegate.
2 Duvall, 440, Standeford v. Wingate, & c.
2 Metcalfe, 221, Phillips v. Covington & Cincinnati Bridge Co.
2 Metcalfe, 168, Louisville & Oldham Turnpike R. Co. v. Ballard.
3 Metcalfe, 569, Johnson v. Higgins.
1 Duvall 145, Gibson v. Belcher.
Act of February 28, 1871, Session Acts, chapter 1377.
An act of the legislature, passed at its last session, relating to the offices of commissioner and receiver of the Louisville Chancery Court, reads as follows: " An act to separate the offices of commissioner and receiver of the Louisville Chancery Court, and to provide for the appointment of said officers, and to define their duties, and to fix the fees of the commissioner." The second section of this act provides that the commissioner and receiver shall be removable at the pleasure of the court. The seventh section of the same act provides that " once in every four years the court shall appoint a commissioner for said court, who shall take the oath required by law," etc. Section 8 of this act is as follows: " All laws in conflict with this act are hereby repealed, and this act shall take effect from its passage." At the time of the enactment of this law the appellant, Thomas Smith, was the acting commissioner of the court, under an appointment made by virtue of the following law passed by the legislature and approved June 3, 1865. This law reads: " That upon the election and qualification of each succeeding judge of said court he shall appoint a commissioner and receiver thereof for his said term, who shall first be recommended to him in writing and signed by a majority of the resident practicing attorneys of said court, and none other shall be deemed qualified for said office under this law."
Appellant was made commissioner, and in August, 1868, gave bond and qualified under this law. The legislature at its session in the winter of 1870 amended the act approved June 3, 1865, so as to confer upon the chancellor the power to remove the receiver of the court ad libitum; and the second section of this amendatory act declares " that this act shall in nowise affect or abridge the right of the present incumbent (the appellant) to hold the office of commissioner in chancery of said court for and during the term for which he has been elected and qualified."
The chancellor, under and by virtue of the second section of the act approved February 28, 1871, by an order of his court made March 10th, removed the appellant from his office of commissioner. The order reads:
Appellant appeared in court at the time this order was made and entered his objections; and the same were overruled, to which he excepted. He then moved the court to set aside the order, and offered to prove on the hearing of this motion by the records of the court his appointment as commissioner, and his readiness and ability to discharge the duties of the office. The evidence was rejected, the motion overruled, and the case is now brought to this court for revision.
The appellant insists that the act approved in February, 1871, is unconstitutional if construed to affect him in his office; that the second section of this act, which provides that the receiver and commissioner shall be removed at the pleasure of the court, and the eighth section of the same act, providing that all laws in conflict with this act are hereby repealed, are inconsistent with the title of the act, and in violation of that provision of the constitution providing " that no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."
One of the principal objects of this constitutional prohibition was to prevent a species of litigation in the procurement or enactment of local or general laws looking to the advancement of individual interests, or reflecting peculiar views of the public welfare, by inserting in the same legislative enactment subjects entirely foreign to the subject expressed in the title. Such legislation would result in great injury and the advancement of private interests at the sacrifice of the public good; but while this kind of legislation should be discountenanced, no unnecessary restriction should be placed on legislative action, except so far as may be required to...
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...Blood v. Mercelliott, 53 Pa. 391; The State v. County Judge, 2 Iowa 280; Insurance Co. v. The Mayor, &c., 8 N.Y. 241; Smith v. Commonwealth, 71 Ky. 108, 8 Bush 108.) next objection is that the act is in conflict with § 17 of article 2 of the constitution, it being claimed that there is a ge......