McArthur v. Nelson , 81 Ky. 67 ( 1883 )

JUDGE PRYOR

delivered the opinion of the court.

By certain legislative enactments existing prior to April, 1882, the city of Newport, in Campbell county, was compelled to pay the expenses of the county courts held in that city, and also the salaries of the county judge and county attorney, the county seat being located at Alexandria. By an act approved on the 17th of April, 1882, a district styled the court-house district was created, with a view of imposing a tax upon the people within the prescribed boundary sufficient to construct a new court-house within the city of Newport on the site where the present court-house is located. The constitutionality of the act is assailed upon various grounds:

First. That the title of the act is misleading.

Second. That the commissioners appointed to execute the provisions of the act have no other tenure of office than to hold at the pleasure of the judge appointing them.

Third. That if any of the provisions of the act are constitutional, those that are unconstitutional being essential to its proper enforcement, the whole law must be held to be invalid.

The act is entitled “An act to authorize the construction and maintenance of a court-house in Newport, pn Campbell county."

The first section of the act authorizes the judge of the circuit court to appoint three commissioners, residents of the district, who shall hold their office at the will and pleasure of the judge. It is made the duty of the commissioners to have the court-house constructed at a cost not exceeding $50,000, and, to enable them to raise this money, they are authorized to issue bonds, with coupons attached, bearing interest at five per cent., payable semi-annually; and, to redeem the bonds and pay the interest, they are further empowered to levy an annual tax on the real and personal property in the district, not exceeding twelve cents on the $100, &c.

By the fourteenth section of the act the entire question is submitted to a vote of the people, with two columns in the poll-books, one headed “for the court-house tax," and the other “against the court-house tax," and the result of this vote determined the right of the judge to appoint the commissioners, as well as the right of the latter to proceed in the construction of the building as contemplated by the act.

The election was held in accordance with the law, and a majority favored the construction of the court-house, and we perceive no valid reason for holding the act to be in violation of the constitution. The voters within the particular boundary had every opportunity to express their views for and against the measure, and certainly none of the provisions of the act to which we have alluded are foreign to the title, but, on the contrary; have a direct reference to it.

The creation of the district in which the vote was to be taken and the tax’ imposed forms a part of the subject-matter, and that the power to appoint commissioners, when not selected by the legislature, should be vested in some tribunal of the county, was necessary to accomplish the purpose in view is manifest. The object to be accomplished was the building of a court-house, and all the various sections of the act having a direct connection with the subject-matter expressed in the title must be regarded as necessary to carry into execution the legislative intent. That the city of Newport had, prior to the passage of the act in question, constituted the district in which taxes were imposed for court-house purposes, did not prevent the legislature from enlarging the district, and requiring those to contribute who, in the opinion of the legislature, were as much interested in having such a public building as the citizens of Newport. While the effect of this act may be to repeal the former acts upon the subject, it is entirely independent of and distinct from previous legislation in regard to the court-house district, and the legislature has said, in building the court-house, the district to be taxed shall be included within a certain boundary. The creation of the district is not repugnant to the title, or objectionable because, prior to the passage of the law, it embraced a smaller territory. One portion of the county has c^urt-house facilities, and another portion, in the opinion of the legislature, requires still greater conveniences, made necessary by reason of its population and the amount and character of business transacted. Of such matters the legislators are the judges and not the courts, therefore sections 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, having a direct connection with the subject of the title, must be held to be constitutional.

“In the case of local improvements (says Justice Coole}') benefiting, in a special and peculiar manner, some portion of a state, or of a county or city, it is competent to arrange a special taxing district within which the expense shall be apportioned.” (496.)

This entire power is within the exercise of legislative discretion, and when sanctioned by a popular vote at an election, where there is no pretense that it was not a full and fair expression of opinion, there is but little reason for asking the aid of the chancellor because some irregularities may have existed in the conduct of the election. The legislature has said that the local necessities and convenience of that particular district requires the imposition of taxes for erecting a court-house, and the exercise of such a power has been too often sanctioned by this court to admit of controversy. That sections 7 and 12, in regard to recording deeds and mortgages, and for taking care of the poor and confining criminals, are open to constitutional objection, affords no argument against the validity of the entire enactment. Strike' the two sections from its provisions, and there remains a perfect law. Nor do we think it was necessary for the legislature to prescribe the term of office for the commissioners, although they are made a body-corporate and politic, with power to sue and be sued, contract and be contracted with, under the style of the “commissioners for the court-house district.” They are not district officers within the meaning of section io of article 6 of the constitution, but are the mere agents for the district, required by the act to discharge certain duties with reference to the building of the court-house, and when those duties end their employment terminates.

It could not have been intended by the framers of the constitution that commissioners appointed to superintend and control the erection of state or county buildings, and to.receive and collect the taxes from the sheriff imposed by the act itself, should be regarded as district officers coming within that provision of the constitution forbidding the creation of any office, the term of which shall be for a longer time than a term of years. The necessity for the appointment of such commissioners, or some superintendent, exists in almost every instance where public buildings are to be erected at the expense of the state or a county, and to hold that such commissioners are to be selected, and when selected, to be removed as officers within the meaning of the constitution, would be determining,, by judicial precedent, every one charged with the execution of a ministerial duty under legislative sanction an officer whose term of office must be designated or the appointment will be held invalid. No such construction should be given any provision of the constitution bearing on this question; and although the duties of these commissioners may continue for four years and longer, it does not invalidate the act, or violate any constitutional provision; and if these commissioners could, by any reasonable construction of the constitution, be deemed officers within its meaning, their term of office, not being fixed beyond the constitutional limit, would end at the expiration of the four years, the presumption being that the legislature had in view the constitutional limitalion when the office was created. There is no equity in appellant’s petition, or facts stated, authorizing the chancellor to interfere.

The judgment below must therefore be affirmed.