Rouse v. Johnson , 234 Ky. 473 ( 1930 )

Affirming.

This action, filed in the Franklin circuit court by appellants and plaintiffs below against appellees and defendants below, challenges the validity of an act of the 1930 session of the General Assembly of this commonwealth known as House Substitute for Senate Bill No. 35, and it hereinafter will be referred to as the "New Act." It repealed and supplanted a prior existing statute relating to the same subject of road construction and which repealed and supplanted statute we shall hereafter refer to as the "Old Act." The old act designated the governmental agency provided by it for the execution of its purposes as the "State Highway Commission" which was composed of four members to be appointed by the Governor, one each from districts created by the act. The same agency created by the new act is designated therein as "The State Highway Commission of Kentucky," and consists of eight members to be appointed from the same number of districts created by it, but the power to appoint the eight commissioners provided for by that act was taken away from the Governor and lodged with an "Appointing Board" therein provided for and to consist of the Governor, Lieutenant Governor and Attorney General. After the enactment of the new act and its taking effect immediately thereafter because of an emergency clause therein, the appointing board therein provided designated the eight defendants as members of the state highway commission of Kentucky created by that act and they were confirmed by the senate as provided for therein.

After the passage of the new act, and before the Legislature adjourned, the Governor, acting upon the theory that the new act was unconstitutional and invalid, sent to the Senate for confirmation the names of the plaintiffs as members of the commission provided for in the old act; but that body declined to confirm their appointment upon the theory that the old act, under which the appointment was attempted to be made, had been repealed by the new one and that there were no longer such officers as members of the old "State Highway Commission." After the adjournment of the Legislature, and acting upon the same theory, the Governor appointed plaintiffs as interim members of the commission created by the old act and they then filed this action against defendants, contesting their right to function under the new act upon the ground that it was unconstitutional and invalid and for which reason it did not repeal the old act, and that plaintiffs were entitled to discharge the duties sought to be taken from them by the new act and imposed upon the members of the commission created by it. Defendants demurred to the petition but without waiving it filed their answer denying all of the grounds of attack and contending that the new act was valid and within the power and authority of the Legislature to enact. The court, however, sustained their demurrer to the petition and plaintiffs declining to plead further it was dismissed, and to reverse that judgment they prosecute this appeal.

The only grounds, as contained in the petition and argued by learned counsel for plaintiffs, to sustain the contention that the new act is unconstitutional and invalid, were and are: (1) That it is in violation of sections 27 and 28 of our Constitution in that it attempts to confer executive power upon the Lieutenant Governor, which office, as is also contended, is primarily and essentially a legislative one and that the incumbent in the office may not be vested by the Legislature with the executive authority to appoint, to office, and that the attempt by the Legislature in the new act to do so, or to annex such a duty to his office, constitutes an unlawful effort to confer upon him executive power when, as contended, he is only a legislative officer and which is in violation of section 28 of the Constitution, saying "No person, or collection of persons, being of one of those departments (the division of governmental powers of the commonwealth made by section 27 of the Constitution, and which are legislative, executive and judicial), shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted;" and (2) that the new act offends section 152 of the Constitution in that it authorizes the filling of vacancies in the commission created by it by the appointing board instead of by the Governor who, as contended, is given the sole authority by section 152 of the Constitution to fill such vacancies.

It is also contended, as was averred in the petition, that another act passed by the 1930 session of the Legislature, known as Senate Bill No. 188, is invalid and unconstitutional for certain argued reasons; but because of the conclusions we have reached we do not regard it necessary to determine that question, which only affects the title of plaintiffs to the offices as members of the commission created by the old act, because their appointments were not confirmed by the Senate as prescribed in Senate Bill No. 188, but were rejected by that body and they were rendered by that act ineligible for recess appointment by the Governor to the same offices after the adjournment of the Legislature. But, for the reason stated, that question will not be determined in this opinion but will be left open.

The contention of learned counsel for plaintiffs that an officer, whose duties appertain exclusively to one of the three departments of government created by the Constitution, may not exercise power and perform functions and duties appertaining exclusively to another of such departments, is not and cannot be questioned, since this court in almost numberless cases as well as all other courts wherein the same constitutional provision exists, have so held and determined. One of the latest from this court so doing is that of Sibert v. Garrett,197 Ky. 17, 246 S.W. 455, wherein other prior cases, both domestic and foreign, are cited and referred to.

At the outset, and before adverting to the relevant constitutional provisions, it might be well to note that state Constitutions do not delegate power to the Legislature of the state, which body has all power unless prohibited or limited by the Constitution. In other words, state Constitutions unlike the federal one only prescribe inhibitions and limitations upon legislative power and that unless the legislative body is so prescribed and limited by the Constitution its authority is unlimited and it may enact upon any subject in the mode and manner it sees proper. Cooley's Constitutional Limitations (8th Ed.) vol. 1, p. 96.

With equal propriety and relevancy it should also be remembered that the express mentioning, and conferring by, a constitutional provision of named powers and duties without a further provision confining them to those so expressly named does not create an inhibition upon the Legislature from prescribing and annexing other duties appertaining to the same department of government, including powers and duties of a constitutional officer if that be the subject-matter upon which the Constitution has spoken without limiting the Legislature to what it (the Constitution) has prescribed. As a concrete example of that proposition: the Constitution in conferring upon an official created by it certain duties, or certain powers without any inhibition against the Legislature conferring others of a similar nature, will not prevent the latter from conferring upon that office other similar duties and powers appertaining to the particular department to which the office belongs, and which principle grows out of the one above mentioned; i. e., that a state Constitution is not a grant of powers to the Legislature, but only a limitation upon them. Having said this much we will now turn our attention to the constitutional provisions bearing upon the legal questions at issue.

It will be observed that the inhibition in section 28 of our Constitution against a person or persons belonging to one of the departments of the state exercising power and authority belonging to either of the others, has an exception saying: "Except in the instances hereinafter expressly directed or permitted" — and it is to be ascertained, as the opinion proceeds, whether or not there is such an exception in other provisions of the Constitution concerning the office of Lieutenant Governor, and also to determine to which department the officer properly belongs.

The published Constitution, as it now appears in Carroll's 1930 Edition of the Kentucky Statutes, and as it has appeared since it was adopted, is divided under different headings, among which are the "Legislative Department," the "Judicial Department," and the "Executive Department." We have not examined the finished and enrolled copy of our present Constitution and do not know whether such divisions appear in it or not, but we have examined the certified and published proceedings of that convention, including the debates of its members, as well as its organization, and from which it is disclosed that there were divers and sundry committees appointed by it as a necessary agency to its proper and appropriate functioning, three of which were committees appertaining to the three above-mentioned headings found in our Constitution as now published in the Statutes, and when the convention came to consider the office of Lieutenant Governor the subject was referred to the executive committee for it to draft and recommend the provisions for adoption relating to that office. When the subject was brought before the convention many of its members participated in the discussions, and from which it emphatically appears that both they and the convention regarded that office as being an executive one, and that the duties imposed upon its incumbent by the Constitution, were, to say the least of it, largely executive ones. But the same committee prepared and presented to the convention section 83 of the Constitution, saying: "He shall, by virtue of his office, be president of the senate, have a right, when in committee of the whole, to debate and vote on all subjects, and when the senate is equally divided, to give the casting vote." The next following section (84) prescribes the executive, and what we conclude primary duties of the Lieutenant Governor. Both of those sections immediately follow others prescribing certain duties of the Governor of the commonwealth, and for that reason, and the further one, that the executive committee of the convention prepared and presented all of the sections appertaining to that department of the state, the publishers of the Constitution, no doubt, and we think properly, concluded that the matters contained in all of the sections under that heading, at least primarily belonged under it, and that the offices created by them, including that of Lieutenant Governor, were primarily executive offices.

Strengthening that conclusion are the provisions of sections 29 and 35 of the same instrument. The first one of them vests all legislative power in a House of Representatives and a Senate and the other one says: "The number of representatives shall be one hundred, and the number of senators thirty-eight." There is nothing in either of them expressly or impliedly creating an exception to the mandatory provisions of both of them. In other words, they contain no such language as "except as herein otherwise provided," and the conclusion is inevitable that no one is exclusively or even primarily a member of the General Assembly of the commonwealth, unless he be one of the 100 members of the house, or one of the 38 members of the Senate. Therefore, under the exception supra contained in section 28 of the Constitution, the convention provided in section 83 of the same instrument that the Lieutenant Governor, though an executive officer because of the matters hereinbefore pointed out, should "by virtue of his office" be president of the Senate, and gave to him therein mere presiding authority with the coupled right to break a deadlock in case of a tie, and which was essentially and imperatively requisite in order to enable the Senate to function upon the development of such a contingency; for, unless someone other than a member of the Senate should have the right to break the deadlock and cast the deciding vote the wheels of legislation, so far as that branch of the General Assembly was concerned, would be locked, and to take care of that possible situation the constitutional convention vested the power in the Lieutenant Governor byvirtue of his office to unlock the deadlock.

As testing the soundness of counsel's argument that the office of Lieutenant Governor is a legislative one, let us suppose that the constitutional convention, instead of creating that office with its prescribed duties, had created another one and designated it "President of the Senate" and had defined his duties to be the same as those conferred upon the Lieutenant Governor so far as his connection with the Legislature is concerned, but had also added that "by virtue of this office" he should discharge the duties of Governor when the latter died, or was otherwise incapable, could it then logically be said that the supposed office of "President of the Senate" was exclusively or primarily an executive one? Consistency would require that an affirmative answer be given by plaintiffs' counsel.

Another supposition will likewise serve, as we think, to test the soundness of the argument that the office of Lieutenant Governor is not an executive but a legislative one under the terms of our Constitution, and it is: Suppose our Constitution had assigned to the office of Lieutenant Governor the precise executive duties that are now contained in it and had been entirely silent with reference to his duties connected with the legislative department, as is now contained therein; what then would be the proper classification of the office under the three departments into which the government of the state is divided? He would not, in that event, be an executive officer if the argument of counsel for appellant is correct, since the only executive duties imposed upon him are contingent and conditional and which, as contended by counsel, removes him from the executive classification. He would not, in the supposed event, have any connection whatever with the legislative department and could not be classified as such an officer; nor could he, for the same reason, be classified as a judicial officer, and we would have the anomalous situation of the constitutional convention dividing the powers of government into only three departments and providing for a state officer with the same qualifications possessed by the Governor, to be elected at the same time as the Governor and to be installed in and go out of office at the same time, but without possessing any of the duties properly assignable to either of the only three departments of government provided by the Constitution. Surely it cannot be contended that such a result would follow the supposed event, but which, nevertheless, would be true if the argument of counsel is sound, i. e., that because the executory duties put upon the office of Lieutenant Governor by the constitution are contingent and conditional it has the effect to displace him as an executive officer.

But that argument is wrecked by its own petard, when it is remembered that the only active and effective participatinglegislative duty now imposed by the Constitution upon the incumbent of the office of Lieutenant Governor is also acontingent and conditional one, since he may not vote upon the passage of any act except upon the contingency of a tie vote in a quorum of the senate. It might be that no such tie would ever occur, and the Lieutenant Governor throughout his term would never be called upon to effectively participate in legislation, just as it is argued that he might never be called upon to act as Governor because the conditions upon which he should do so might not occur throughout his term. We, therefore, see that if the argument of counsel is sound, then we have a situation exactly the same as that contained in the last supposed case supra, i. e., a state officer who is elected by the people, but who is incapable of being classified, either as a judicial, legislative, or executive officer, and which to our minds would be an absurdity and illustrates the unconvincing quality of the argument advanced.

Let us observe for a moment the exact application of the phrase "by virtue of his office." It is one extensively and immemorially applied to an office or officer when the Legislature or a constitutional convention sees proper to annex to the duties of an independent officer, or to confer additional powers upon him, and it is accomplished by saying that "by virtue" of being such an officer the powers being dealt with, or the performance of the duties under consideration, shall be conferred upon him, or annexed to the duties of his office. In other words, it presupposes the prior creation and existence of such an office or officer and the annexed duties are attached thereto by virtue of the already existing and prior office or officer.

That the Legislature may annex additional duties to a constitutional office, or confer powers upon a constitutional officer other than those expressly prescribed by the Constitution unless inhibited from so doing by that instrument, is everywhere recognized and practiced in this and other jurisdictions, illustrations of which in this state are to be found from time to time since the creation of the commonwealth. Some examples of which are: The state board of election commissioners, consisting of the Governor, Attorney General, Auditor, Treasurer, and Secretary of State as it was prior to the enactment of our present election law creating our present state board of election commissioners; the old state board of valuation and assessment, consisting of the State Auditor, Treasurer, and Secretary of State; the present commissioners of the sinking fund, consisting of the Governor, Secretary of State, Auditor, Treasurer and Attorney General; the present state printing commission, consisting of the Governor, Auditor, Secretary of State, Treasurer, and Attorney General; the state geological survey, consisting of the Governor, as a member of the advisory board; the state text book commission, two ex officio members of which are the Governor and the Superintendent of Public Instruction; the state board of education, heretofore composed of the Governor, Attorney General, Secretary of State, and State Superintendent of Public Instruction. An extended list of boards and commissions wherein the Governor and other executive officers are expressly made ex officio members, and in some of which they are given full power with the other members of the commissions or boards could be given. It has never been recognized that such additionally imposed duties by the Legislature to those expressly conferred by the Constitution were illegal, when not forbidden by that instrument.

If it be legal and proper for the Legislature to annex such nonconferred duties and powers by the Constitution to an officer created by it as has been done with reference to the Governor, Attorney General, Auditor, Secretary of State, Treasurer, and Superintendent of Public Instruction in the instances and cases to which we have alluded, then why, may we inquire, would it not also have the power to confer such additional duties, appertaining to the department to which the officer belongs, upon the Lieutenant Governor the same as upon the other state officers mentioned? Indeed, we do not understand learned counsel to contend otherwise, but they appear to plant their whole case upon the contention that the Lieutenant Governor is what they denominate "primarily a legislative officer," and that his office is essentially a legislative one; but which our above analysis of the constitutional provisions bearing upon the subject does not logically sustain.

Moreover, the statute involved in the case of Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828, upheld the right of the Legislature under our Constitution to annex to, or confer upon, the incumbent of the office of Lieutenant Governor executive power and duties not mentioned in the Constitution and which was also in recognition of its right and authority to annex additional powers and duties upon the other state executives hereinbefore referred to. A great majority, if not all, of the 48 states of the Union have similar constitutional provisions, relating to the division of the departments of government, to our sections 27 and 28, and other sections making similar provisions concerning the office of Lieutenant Governor, and we have found no case, nor have we been cited to any, wherein any court held that the office of Lieutenant Governor, under such substantially similar provisions should be classified as primarily belonging to the legislative department of the state. On the contrary, the highest courts in a number of states having such constitutional provisions, have either expressly, or by unerring and most convincing implication, classified the office of Lieutenant Governor as an executive office, as will be seen by reference to the cases of Bridges v. Shallcross, 6 W. Va. 562; State v. Bellamy, 60 Okl. 62, 158 P. 897; Bynum v. Strain, 95 Okl. 45, 218 P. 883; State of Ohio v. Kennon,7 Ohio St. 546, and Nevada by the statute involved in the case of Southern Pac. Co. v. Bartine (C. C.) 170 F. 725. The statute involved in the last-cited case was one very similar in kind and purpose to the challenged new act in this case. The Lieutenant Governor was made therein a member of an appointing board. He, with other members of the board, exercised his appointive authority and it was contested upon the same grounds relied on in this case. It is conceded that the relevant constitutional provisions in Nevada were the same at the time of the enactment of the statute there involved, as those in our Constitution, and the court held that none of them was violated by the act under consideration for any of the reasons there urged, which were the same, we repeat, as are now urged by plaintiffs to accomplish the same purpose in this case.

In addition to the foregoing cases, attention might be called to the text in 36 Cyc. 855, saying: "The lieutenant governor is an executive officer provided for by the constitutions, and his principal duties are to act as president of the senate, and in case of the death, resignation, absence, disability, etc., of the governor to succeed to the office or duties of the latter." The cases cited in the notes to that text at least inferentially sustain its statement that the office of Lieutenant Governor is an executive rather than a legislative one, though the incumbent is made "by virtue of his office" president of the Senate, one of the houses of the General Assembly. We conclude, therefore, that the office of Lieutenant Governor in this commonwealth is chiefly and primarily an executive and not a legislative one.

But, let us concede for the purposes of this opinion and for the sake of the argument, the most that can be possibly contended for by learned counsel for plaintiffs, and which is, that the office of Lieutenant Governor under our Constitution is neither an exclusive executive, nor an exclusive legislative one, but it is a mixed one, and its incumbent may function as both a legislative and executive officer. In that case, under the principles hereinbefore discussed, it would be competent for the Legislature to annex to or confer upon the officeexecutive duties not forbidden by the Constitution which he might perform and exercise as such executive officer, and could likewise confer upon him as such legislative officer duties appertaining to legislation and not prohibited by the Constitution; and the latter of which the legislature has done since the creation of the office of Lieutenant Governor in this commonwealth. It was accomplished through the adoption of rules vesting him as its presiding officer with the power to appoint committees of the senate which are necessary functonal agencies of that body and wield an acknowledged influence on legislation. The Legislature has also, as we have seen, at least in one instance in this state, conferred executive power upon the Lieutenant Governor by the statute involved in the Craig case, supra. So that, if we should adopt the most favorable view for plaintiffs, the Legislature under the provisions of section 28 of our Constitution had the constitutional right to confer upon him the power and authority challenged in this case.

By a technical and ingenious process of reasoning syllogistically constructed, as learned counsel for plaintiffs to some extent indulge in some of their argument, might remotely support a different conclusion than the one which we have herein reached concerning the classification of the office of Lieutenant Governor and the duties and powers of its incumbent, and the same might be said with reference to the conclusions hereinafter expressed in the disposition of ground (2) supra, urged in support of the invalidity of the new act.

But it should be remembered that Constitutions, and Statutes as well, should be given a practical interpretation to the end that the plainly manifested purpose of those who created them might be carried out; and to accomplish it the various considerations hereinbefore alluded to are appropriate matters for consideration. It certainly was not the intention of the makers of the Constitution to isolate the office of Lieutenant Governor and to forbid the Legislature from clothing him and his office with any additional and kindred rights, powers, and duties, but to leave him forever in his isolated position and wearing only the meager official robes put upon him by the Constitution, and especially so in the absence of an express provision in that instrument so inhibiting, and when no such inhibition adheres to any other constitutional officer, as we have hereinbefore pointed out. As hereinbefore noticed, the Lieutenant Governor cannot be classified as a member of the General Assembly, for he would then make the 139th one, when the Constitution limits the membership of the two houses to 138. The only legislative function that he performs is that of an umpire in preventing a deadlock in case of a tie, and, as stated, the most that may be said in support of the contentions of plaintiffs' counsel is, that his constitutional duties partake of, and belong to, both the legislative and executive departments of the state government, in which event, as we have also hereinbefore pointed out, the Legislature had the right to add to his executive functions and which appertain to that side of his dual character in the manner and to the extent it did in the attacked statute. We therefore conclude that ground (1) is without merit.

The disposition of ground (2) in support of the attack made on the new act, could be entirely dispensed with, since it relates exclusively to the filling of vacancies that might occur in the board created by the new act, and which question is not now before us. But, inasmuch as a vacancy might happen at any time, and inasmuch as it might be contended that if that portion of the new act should be held invalid it would operate to annul the new act entirely, we have concluded to dispose of the contention involved in this ground. Section 76 of the Constitution confers upon the Governor the power, "except as otherwise provided in this Constitution," to fill vacancies in office, but that section should be read in connection with section 93 of the same instrument, which says in part: "Inferior state officers, not specifically provided for in this Constitution, may be appointed or elected, in such a manner as may be prescribed by law," etc. Evidently that excerpt falls within the inserted exception contained in section 76, and when so considered and the two sections read together it would confine the vacancies mentioned in section 76 to such officers as are created by the Constitution, and not to the filling of vacancies in those created by the Legislature under the provisions of the inserted excerpt from section 93.

However, reliance on the provisions of section 76 of the Constitution does not seem to be made by learned counsel for plaintiffs, but they do strenuously insist that under the provisions of section 152 of the same instrument the Governor is given exclusive power to fill vacancies in both elective and appointive offices. That section says in part: "Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows. . . . Vacancies in all offices for the state at large, or for districts larger than a county, shall be filled by appointment of the governor," etc. Other of its provisions prescribe that appointments to fill vacancies in county offices or for districts and municipalities less than a county, "shall be made as may be prescribed by law." The language of the section taking the place of the periods in the above excerpt relates to thetenure of the appointee to fill the vacancy and it prescribes, in substance, that he shall hold the office until the next regular election, at which city, town, county, district, or state officers are to be elected, if the time intervening between the appointment and such election is as much as three months; but, if such election follows the appointment less than three months, the appointee holds until the next election at which such officers are to be elected. It will be perceived that a part of the first sentence in the section refers to "elective officers" as being the kind and character referred to therein. But it does not stop there, since provision is made later on, in prescribing the tenure of the appointee, that he shall hold his office until the vacancy may be filled byelection at a described annual election, at which certain designated officers are to be elected. If the section was not confined to elective officers, then why measure the tenure of the appointee by the time between the appointment and anelection at which the office could be filled by election at a regular annual one at which any of the inserted offices are to be filled by election? The entire language of the section clearly indicates that no other sort of vacancies were contemplated in it except those occurring in elective offices and we are unable to construe the language so as to arrive at any other conclusion.

It was so legislatively construed by the enactment in 1893 of section 3758 of our present Kentucky Statutes, wherein it is provided, inter alia, that the Governor may fill vacancies in office, whether for territories larger than the county or not, if, and only when, "there is no provision of law for filling same." There could be no other statutory provision of law for the filling of such vacancies by another than the Governor if the construction contended for should be put upon section 152 of our Constitution. However, this court has expressly held in the case of Shelley v. McCollough, 97 Ky. 164, 30 S.W. 193, 17 Ky. Law Rep. 53, that the vacancies referred to in section 152 were those of elective officers and that the section did not refer to or embrace appointive officers such as the Legislature might create under the provisions of section 93 of the same instrument. But it is said that the part of that opinion so holding was and is dictum; but, whether so or not, we will not stop to consider for its reasoning is sound and to our minds convincing. It was followed in the case of Poyntz v. Shackelford, 107 Ky. 546, 54 S.W. 855, 21 Ky. Law Rep. 1323. But it is said that the later case of Pratt v. Breckinridge,112 Ky. 1, 65 S.W. 136, 166 S.W. 405, 23 Ky. Law Rep. 1356, 1858, overruled the Poyntz case, which seems to be true, but it was not necessary for the purposes of that opinion to overrule the Poyntz case on that subject, since when the court held in the Pratt opinion that the Legislature could not itself exercise the executive function of electing or appointing to office for any term, the entire question involved in that case was disposed of and there was no necessity for any expression of an opinion upon the question of filling vacancies as are contemplated by section 152 or elsewhere. Other cases from this court which by analogy and incidentally support the conclusion that section 152 of the Constitution refers only to elective officers, are, Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229, 25 Ky. Law Rep. 1957; Yates, County Clerk v. McDonald, 123 Ky. 596, 96 S.W. 865, 29 Ky. Law Rep. 1056; McCreary, Governor, v. Williams, 153 Ky. 49, 154 S.W. 417; and Scott v. Singleton,171 Ky. 117, 188 S.W. 302, 303. In the last case the opinion said: "This section (152) of the Constitution is mandatory, and, except as otherwise provided in the Constitution, provides how, by whom, and for how long vacancies in all elective offices must be filled." We, therefore, conclude that section 152 embraces only vacancies in elective offices whether constitutionally or statutorily created, and that it has no application to the filling of vacancies in appointive offices.

Upon the whole case, and without further elaboration, it is our conclusion that the judgment appealed from was and is proper, and it is affirmed. The whole court sitting, Judge WILLIS dissenting.