Taylor v. Commonwealth

• Decision Date: 06 June 1947
• Citation: 305 Ky. 75
• Parties: Taylor v. Commonwealth ex rel. Dummit.
• Court: United States State Supreme Court — District of Kentucky

305 Ky. 75

Taylor v. Commonwealth ex rel. Dummit.

Court of Appeals of Kentucky.

June 6, 1947.

1. Officers. — A "public office" must be created by law, must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public, the powers conferred, the duties to be discharged must be defined, directly or impliedly, by the Legislature or through its authority, the duties must be performed independently and without control of a superior power, other than the law, unless they be those of inferior or subordinate office, and it must have some permanency and continuity.

2. Officers. — Manager for State Fair Board is a "public officer" within constitutional provision rendering member of Legislature ineligible for office created by the Legislature. KRS 247.090 et seq., 247.130(1, 2); Const. sec. 44.

3. Statutes. — The statute enacted in 1946 containing provision for appointment of a manager by the State Fair Board took effect in any event 90 days after session of the Legislature adjourned, even if the emergency clause were deemed inoperative, and effective date of the statute was not postponed until after the terms of all members of old State Fair Board expired. KRS 247.090 et seq.

4. Statutes. — The Legislature may enact any statute it deems necessary for the public interest, unless prohibited by constitutional provisions and in exercise of that authority may frame its enactments and express its intention and purpose as it sees proper.

Appeal from Franklin Circuit Court.

Stanfill, Craft & Homan and Ralph Homan for appellant.

Eldon S. Dummit, Attorney General, and Emmet Mittlebeeler, Assistant Attorney General, for appellee.

Before W.B. Ardery, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

This ordinary action was filed in the Franklin circuit court on May 9, 1947, by the Commonwealth on relation of its Attorney General pursuant to the provisions of Chapter XIII of the Civil Code of Practice, sec. 480 et seq., against the defendant, and appellant, C. Waitman Taylor, seeking to deprive him of the right to occupy and discharge the duties of the public office of manager for the State Fair Board in providing for and conducting the State Agricultural Fair, which is now held in Louisville, Kentucky, in September of each year.

It is alleged in the petition as grounds for the relief sought that appellant was and is a usurper of that position which plaintiff in his petition declared to be a public office, and that it was created by Chapter 80 of the Session Acts of 1946, KRS 247.090 et seq., when appellant was a member of the House of Representatives from the 18th Legislative District in Kentucky. Plaintiff also alleged that section 44 of our Constitution rendered appellant ineligible to occupy or discharge any of the duties of that office, it having been created while he was a member of the Legislature.

The defendant in his answer alleged and relied on two grounds in defense of the action; (1) that the position he was filling, and the one from which plaintiff sought to oust him, was not a "public" office within the meaning and contemplation of section 44 of our Constitution, and (2) that the 1946 Act creating the position will not become a law or take effect until December 12, 1949, during which deferred period he had been discharging like duties under the preceding statutes relating to the State Fair as an agent or employee of the State Fair Board, and that he had the right to continue to function under the law in existence prior to the 1946 act in the same manner he had theretofore done until the 1946 act took effect and became the law of the State on December 12, 1949.

The court on final submission overruled each of those defenses and adjudged appellant "to be a usurper and ineligible to hold the office of manager of the State Fair" and that "the office of manager of the State Fair, heretofore held by defendant, C. Waitman Taylor, vacant." The judgment then ordered and directed that the defendant be restrained from acting in any way as manager of the State Fair, or holding himself out in any way as the duly qualified and acting manager thereof. From that judgment appellant prosecutes this appeal.

In the course of the opinion we will refer to the State Fair Board as the "Board" and to the law existing prior to the taking effect of the 1946 act as the "old statute" and to the 1946 act as the "new statute."

The last preceding statute to the 1946 amendment giving authority for the Board to appoint agents or employees in administering its affairs under its directions is Chapter 7 of the Session Acts of 1940, section 4, which says, inter alia: "It (the board) shall have authority to employ such employees and agents as it shall deem necessary for the conduct of its affairs and those of the State Fair. The Board shall have authority to fix the duties and the compensation of any such employee or agent, with the approval of the Division of Personnel Efficiency." (Our parenthesis.)

It then provided that the Board may require that any such employees or agents execute bond for the faithful performance of their duties. Neither does the 1940 act, nor any other corresponding act preceding it, mention or prescribe for a position designated as "Manager," but only prescribed, as we have seen, that the Board "may" appoint, within its discretion, "employees and agents" to assist in carrying out and executing its policies as formulated and directed by it. However, the Legislature in the new act in delegating to the Board authority to appoint agents and employees, as contained in the old statute repealed it and enacted in lieu thereof what is now section 247.130, KRS, which says:

"(1) The State Fair Board shall appoint a manager who shall not be one of their number. The manager shall be appointed on the basis of training, ability and experience. The manager shall hold his position during the pleasure of the board, but may be removed only by an affirmative vote of six members of the board. The manager shall be responsible for the administration of the policies set by the board, shall devote his entire time and attention to the performance of such duties and work as may be required of him by law or be assigned to him by the board, and shall receive such salary, fixed on an annual basis, as the board may determine.

"(2) The manager may organize such administrative divisions as may be necessary and may designate chiefs of such divisions who, under his control and supervision, shall have the duties of direction of such divisions. The manager may employ such other employes and agents as he deems necessary for the carrying out of the policies of the board and to conduct the affairs of the State Fair, and may fix the duties and compensation of any employes or agents with the approval of the board."

In section (4) of the same act and section of KRS it is prescribed that the "manager, employes and agents provided for in this section shall not be subject to the provisions of KRS 42.110 or 42.120." The exclusions so prescribed have no bearing upon the merits of this case.

It will at once be seen that the 1946 act is the first one to expressly designate a manager to assist the Board in performing its duties, instead of only "employees and agents" that it might appoint within its discretion, as prescribed by the old law. The new statute not only enlarged the power and authority of its newly created position of manager, but required that he should be responsible for the administration of the policies set by the Board, and "shall devote his entire time and attention to the performance of such duties and work as may be required of him" by law or by the Board, and that his position should be permanent and receive compensation to be fixed by the Board "on an annual basis." Furthermore, subsection (2) of the same KRS section supra of the new statute authorizes its newly created position of "manager" to "organize such administrative divisions as may be necessary and may designate chiefs of such divisions who, under his control and supervision, shall have the duties of direction of such divisions" to "employ such other employees and agents as he deems necessary for the carrying out of the policies of the board," and "to conduct the affairs of the State Fair, and may fix the duties and compensation of any employes or agents with the approval of the board" — the approval referring to the compensation of the employees that the manager might employ.

From the duties, functions, power and authority so conferred upon the newly created position of "manager" there can be no doubt but that the position so provided for by the new statute was intended by the Legislature to be, and it actually is, an office and its incumbent an officer. In substantiation of that conclusion we need actually go no farther than to cite the opinions of this court in three cases, the first being Com. v. Bush, 131 Ky. 384, 392, 115 S.W. 249, 251. One of the questions there involved was what are the requirements necessary in the creation of a public office and to clothe the incumbent with the habiliments of an officer. Judge O'Rear in writing the opinion for this court said: "Chief Justice Marshall's definition of `office' and `officer,' contained in United States v. Maurice, Fed. Cas. No. 15,747, 2 Brock 96, 103, is thus tersely put: `It (an office) is a public charge or employment, and he who performs the duties of an office is an officer.' Or, as Blackstone states it: `An office is the right to exercise a private or public employment and to take the fees and emoluments thereunto belonging.' 2 Bl. Com. 36. And as extended in Olmstead v. Mayor, 42 N.Y. Super. Ct. 481: `It implies an authority to exercise some portion of the sovereign power of the state, either in making, administering, or executing the laws.' Opinion of the Judges, 3 Me. 481. The power and jurisdiction of an office constitute the office and are...