Stickler v. Higgins

• Decision Date: 18 June 1937
• Citation: 106 S.W.2d 1008,269 Ky. 260
• Parties: STICKLR v. HIGGINS et al.
• Court: Kentucky Court of Appeals

106 S.W.2d 1008

269 Ky. 260

STICKLR v. HIGGINS et al.

Court of Appeals of Kentucky

June 18, 1937

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Declaratory judgment action by B. V. Stickler, as a citizen and taxpayer against Robert L. Higgins and others to test the validity of a repealing act. From a judgment dismissing plaintiff's petition, he appeals.

Affirmed.

Richard P. Dietzman and S. J. Stallings, both of Louisville, for appellant.

Lawrence S. Grauman and Stuart E. Lampe, both of Louisville, Hubert Meredith, Atty. Gen., and A. E. Funk, Asst. Atty. Gen., for appellees.

THOMAS Justice.

Section 105 of our Constitution confers authority upon the General Assembly of the commonwealth to consolidate the county offices of sheriff and jailer, and to confer the duties of the latter officer upon the former one, who shall be required to perform them after the consolidation in addition to his prior duties as sheriff. The 1934 regular session of our General Assembly attempted by chapter 129, p. 540, of the Session Acts for that year, to exercise that authority by consolidating the two offices in accordance with the authority contained in the section of the Constitution referred to; but by oversight and mistake the constitutionally required enacting clause was omitted from that act, thereby rendering it illegal and invalid. Commonwealth v. Illinois C. Railroad Co., 160 Ky 745, 170 S.W. 171, L.R.A.1915B, 1060, Ann.Cas. 1916A, 515. We will hereafter refer to that chapter as the "invalid" consolidating act.

On the 7th day of May, 1934, Gov. Ruby Laffoon, by proclamation duly issued pursuant to the provisions of section 80 of our Constitution, convened the General Assembly in Extra-ordinary Session to begin on May 9, 1934, and in the subjects enumerated by him for consideration at that extra session was a recommendation for the consolidation of the two county offices of sheriff and jailer, because the invalid consolidating act, supra, was ineffectual for that purpose for the reason stated. During that extra session the General Assembly enacted chapter 24, page 214, of the Extraordinary Session Acts, which was in the verbatim language of the invalid consolidating act, supra.

On December 23, 1936, Gov. A. B. Chandler, by the same character of proclamation, convened the General Assembly in Extra-ordinary Session to commence at a time therein named and one of the subjects designated by him in his proclamation was "To repeal chapter 129 of the Acts of the General Assembly of the Regular Session of 1934." As will be seen, it was the invalid consolidating act that he referred to, and not to chapter 24 of the Extra-ordinary Session of 1934, supra, and which we will hereinafter refer to as the ""valid" consolidating act. It is designated in Baldwin's 1936 Revision of Carroll's Kentucky Statutes as section 22371 et seq. Gov. Chandler, after convening the 1936 Extraordinary Session--and on December 29th of that year-- discovering that the invalid act that he had designated in his original proclamation was ineffectual for the reasons stated--issued another proclamation in strict compliance with section 80 of the Constitution, in which he amended his original call by referring to the error in his original proclamation, and in the amendment he designated the valid act of the 1934 Extraordinary Session as the one to be repealed at the Extraordinary Session called by him. Later on in that session the valid consolidating act of 1934 was repealed by the enactment of chapter 14 of the acts passed at Gov. Chandler's extraordinarily called session (Acts 1936-37, 4th Ex.Sess.), and which we will hereafter refer to as the "repealing" act.

This declaratory judgment action was filed in the Jefferson circuit court by appellant and plaintiff below, B. V. Stickler, as a citizen and taxpayer of that county, against the appellees and defendants below, Robert L. Higgins et al., to test the validity of the repealing act. Plaintiff alleged in his petition as grounds for his attack of the repealing act (1) that Gov. Chandler's 1936 Extraordinary Session was without authority to enact it because the subject to which it relates was not contained in his original proclamation convening the session, and that he was without constitutional authority to later amend, correct, or add to the subjects mentioned in his original proclamation after it had convened and because of which urged reasons the repealing act is itself invalid; (2) if mistaken in attack (1), then the valid consolidating act, passed at the 1934 Extraordinary Session, consolidating the two county offices of sheriff and jailer, was final and that it was incompetent for the Legislature at any future session to repeal it, thereby rendering the repealing act ineffectual; and (3) that if mistaken in both attacks (1) and (2), then the 1936 repealing act is invalid because neither it, nor any other act passed since the valid consolidating act, re-enacted the duties of jailer. Defendants combatted all of those arguments and, in addition thereto, contended that if attack (1), supra, should be sustained, then Gov. Chandler's original proclamation, in designating the invalid chapter 129, supra, was a sufficient compliance with the requirements of section 80 of the Constitution to enable and to authorize the Extraordinary 1936 Session that he called to enact the repealing statute. The learned chancellor before whom the case was heard in the court below denied all of the grounds relied on in making the attack of the repealing act, and dismissed plaintiff's petition, from which he prosecutes this appeal.

Our determination of attack (1), supra, hereinafter given, will eliminate the necessity for elaborating the contention of defendants that Gov. Chandler's original proclamation convening the 1936 Extraordinary Session sufficiently designated the subject so as to authorize the enactment of the repealing act when he referred to the invalid consolidating chapter 129 of the regular 1934 session of the General Assembly. We will, therefore, pass that question without elaboration, further than to say that there is considerable force in defendants' contention. But, since attack (1) is also made in a number of cases contesting different enactments passed under the same circumstances and in the exercise by the Governor in the same manner the same authority as was the repealing statute, we have concluded to rest our opinion on the determination of that question (attack (1) and to not detour it by endeavoring to uphold the repealing act on some other ground. We will now proceed to a determination of the three enumerated attacks in the order named.

1. All of the argument in support of attack (1) emanates from and is based upon the correct interpretation of section 80 of our Constitution, saying: "He may, on extraordinary occasions, convene the general assembly at the seat of government, or at a different place, if that should have become dangerous from an enemy or from contagious diseases. In case of disagreement between the two houses with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, not exceeding four months. When he shall convene the general assembly it shall be by proclamation, stating the subjects to be considered, and no other shall be considered." The pertinent part of that section is its last sentence, in this language: "When he shall convene the general assembly it shall be by proclamation, stating the subjects to be considered, and no other shall be considered." The question as presented in this case by the pleadings, by the briefs, and upon oral argument is further narrowed and clarified because of the concession of plaintiff's learned counsel that the Governor, under such constitutional provisions as are contained in section 80, supra, of our Constitution, may by additional proclamation issued before the convening of his theretofore called Extraordinary Session make and provide for additional subjects to the one or ones mentioned in his original proclamation. Therefore, the contention of counsel in this case is confined exclusively to the narrow issue as to whether or not such additional subjects may be added to those contained in the Governor's original convening proclamation after the extra session has convened in compliance with it? Learned counsel thus seek to draw a distinction between the authority of the Governor to enlarge the list of such additional subjects, in the constitutional manner; before the convening of his extraordinarily called session, and after that session shall have convened. Before directing our attention to that precise--and we might say only--contention with reference to attack (1), we deem it pertinent at this point to say that the cases of Sims v Weldon, 165 Ark. 13, 263 S.W. 42, Foster v. Graves, 168 Ark. 1033, 275 S.W. 653, and Pittsburg's Petition, 217 Pa. 227, 66 A. 348, 120 Am.St.Rep. 845, expressly hold that under substantially similar constitutional provision it is competent for the Governor to add to the subjects for consideration which he includes in his original convening proclamations by later issued proclamations, embracing the additional subjects, when such later proclamations are made prior to the convening of the extraordinary session; but in each of them the reasons given why that may be done before the extraordinary session meets applies, as we conclude, with equal force when the proclamation submitting the additional subjects is issued after such session begins. Each of them hold substantially with our recent holding in the case of Richmond v. Lay, 261 Ky. 138, 87 S.W.2d 134, 135, wherein we expressed our view as to the purpose that the convention had in mind in framing section 80...