Speed v. Crawford
| Decision Date | 22 October 1860 |
| Citation | 60 Ky. 207 |
| Parties | SPEED & WORTHINGTON v. CRAWFORD. |
| Court | Kentucky Court of Appeals |
Sec 41 of art. 4 of the constitution of Kentucky relates exclusively to such police courts (and the officers of such courts, including judges, clerks, and marshals) as had been established in any city or town prior to the adoption of the constitution; and sec. 6 of art. 6 was intended to refer to all officers of towns and cities whose offices might be created or established after its adoption. (2 Met. 576.)
Officers for cities and towns shall be elected for such terms and in such manner as may be prescribed by law. (Constitution of Ky., art. 6, sec. 6.) Where a statute creates the offices of " members of a police board" of a city, who are required by the act to reside in the city to be qualified voters thereof, and to keep their offices therein, and whose duties relate to matters exclusively local, confined to subjects pertaining to the " police department" of the city, they should be elected by the voters of such city. If the statute direct their appointment by the governor, or by a judge of a court, it is unconstitutional.
An appointment to an office by the governor is not the same thing, in a constitutional sense, as an election to an office.
The word term, with reference to the tenure of office is used in the constitution to designate a fixed and definite period of time. A statute creating the offices of members of the police board of a city, which provides that they may be removed at the pleasure of the chancellor, and that they must be removed whenever, by a change of political opinion on their part, or on the part of the mayor, they cease to disagree, fails to comply with the requirements of the constitution, and provides for a tenure of office unknown to that instrument.
Power is given by a statute to the police board of a city to appoint a chief of police, assistant chiefs of police supernumerary watchmen, and fill vacancies in those offices until the next general election; to employ a clerk, and also to try the " chief or assistant chiefs of police, or any watchman, or any other member of the police force, now or hereafter holding office in said city, for any violation or neglect of duty, and remove them from office, or suspend them for such time as the board may determine." Quere: Is the act unconstitutional upon the ground that it provides for a blending of executive and judicial powers? The court say they are not prepared to decide that it is; and refer to Story's Commentaries on the Constitution for a satisfactory exposition of the clause on which the objection is founded, and especially to the chapter on the " distribution of powers," secs. 517, etc.
When the General Assembly, by a vote of two-thirds of all the members elected to each house, extends the session beyond sixty days, the constitutional restriction as to the length of the session is effectually removed, and can operate no longer. After the removal of the restriction, the General Assembly may thenceforward, by the concurrence of a majority, protract the session from time to time, as the necessities of the business before them may seem to require.
Appeal from Jefferson circuit court.
CALDWELL and BULLITT, for appellants.
E. S. WORTHINGTON, on same side.
S. S. NICHOLAS and CHAS. RIPLEY, for appellee.
This is an appeal from a judgment of the Jefferson circuit court, declaring unconstitutional an act of the General Assembly, approved February 29, 1860, entitled " an act to provide a more efficient police department in the city of Louisville." (2 vol. Session Acts, 1859-60, p. 510.)
The third section of the act provides, in substance, that the chancellor of the Louisville chancery court shall, within twenty days after the passage of the act, appoint two discreet persons, qualified voters of said city, as members of a police board for said city; and may remove them at any time, and appoint others, or fill vacancies occurring by death, resignation, or otherwise: Provided, That when the mayor of the city shall belong to the democratic party the said appointees shall be of the opposite political party; and when the mayor shall belong to the party opposed to the democratic party, the appointees shall belong to the democratic party; and they shall be removed as often as may be necessary to carry out this provision. And, provided further, That if the chancellor should fail to make said appointments within the time mentioned, all the powers conferred upon him shall be exercised by the governor.
By other sections of the act power is conferred upon the mayor, with the advice and consent of other members of the board, to appoint every two years a chief of police, and such supernumerary watchmen as may be deemed proper; they may also, if they deem it advisable, appoint one or more assistant chiefs of police, and they have power to fill vacancies in those offices, until the next general election; power is also given the board thus constituted to employ a clerk, to try the " chief or assistant chiefs of police, or any watchman, or any other member of the police force, now or hereafter holding office in said city, for any violation or neglect of duty, or remove them from office, or suspend them for such time as the board may determine."
By the judgment of the court below the act in question was held to be in conflict with the constitution in the following particulars:
1. In providing for the appointment, by the chancellor or governor, of the two members of the police board, instead of requiring them to be elected.
2. In not prescribing the terms for which those officers were to be elected.
3. In conferring upon them powers which are essentially executive, and other powers which are essentially judicial.
These several objections to the validity of the act, indicating, as they do, the only questions necessary to be considered in determining the propriety of the judgment sought to be revised, will be briefly noticed in the order in which they are stated.
1. Article 6, section 6, of the constitution, provides that " officers for cities and towns shall be elected for such terms, and in such manner, as may be prescribed by law." The first inquiry then is, to what class of offices do the offices created by the act in question belong? Are the two members of the police board, whom the chancellor or the governor is authorized to appoint, to be considered as embraced by the class of officers designated in the provision just quoted as " officers for cities and towns? " If so, it is perfectly plain that the legislature had no power under this imperative mandate of the fundamental law, to do more than prescribe the manner in which they were to be elected, and the terms of their office.
" All civil officers for the commonwealth at large shall reside within the State; and all district, county, or town officers, within their repective districts, counties or towns (trustees of towns excepted), and shall keep their offices at such places therein as may be required by law." (Sec. 11, art. 8.)
This, and other provisions of the constitution, show, with absolute certainty, what particular officers were intended to be embraced within each of the four classes here enumerated. (Articles 3, 4 and 6.)
The members of the police board are, by the express terms of the act, required to reside in the city of Louisville, to be qualified voters of the city, and to keep their offices therein. Their powers and duties relate to matters exclusively local, being confined, as is indicated by the title of the act, to subjects pertaining to the " police department" of the city. Would it not, therefore, be a...
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