McIntyre v. Commonwealth , 221 Ky. 16 ( 1927 )

Affirming.

Harrison McIntyre, at the April term, 1926, of the Perry circuit court, was indicted for the murder of Jerry Caudill. The case was tried at the same term and he was found guilty of voluntary manslaughter and his punishment was fixed at 21 years' imprisonment. He appeals.

No bill of exceptions was filed and the only question made on the appeal is that he was indicted and tried when no court could legally be held.

The Thirty-Third circuit court district was created by the act approved March 14, 1924, and consists of the counties of Leslie and Perry. By that act a term of the court in Perry was provided, beginning on the third Monday in April and continuing 24 juridical days. Acts 1924, p. 50. The term at which appellant was indicted and tried began on the third Monday in April and continued 24 juridical days. But by an act approved March 25, 1926, the April term of the Perry circuit court was not provided for, and that act, which repealed all acts and parts of acts in conflict therewith, contained the following emergency clause:

"Owing to the congested condition of the docket in said Thirty-Third judicial district an emergency is hereby declared and this act will be effective upon its passage and approval by the Governor." Acts 1926, c. 54, section 2.

If the emergency clause was valid, no session of the Perry circuit court could legally be held in April after this act was approved on March 25th, and this is the only question to be decided on the appeal. Section 55 of the Constitution is in these words:

"No act, except general appropriation bills, shall become a law until ninety days after the adjournment of the session at which it was passed, except in cases of emergency, when, by the concurrence of a majority of the members elected to each house of the General Assembly, by a yea and nay vote, entered upon their journals, an act may become a law when approved by the Governor; but the reasons for the emergency that justifies this action must be set out at length in the journal of each house."

This provision is clearly a limitation upon the power of the Legislature to make an act take effect from its approval. It has been the uniform custom of the Legislature, under the Constitution, to spread all acts on the journal when passed in each house, and to insert in the act the reasons for the emergency requiring the act to take effect upon its approval by the Governor. In this way the reasons for the emergency are set out at length in the journal in each house. This has been the universal custom of the Legislature. It will be observed that the emergency is declared to exist "owing to the congested condition of the docket in said Thirty-Third judicial district," and no other reason is assigned.

Without quoting at length the two acts, we will set out in parallel columns how the courts were provided under each act:

Perry 1924. Perry 1926. 3 Monday April 24 days. 3 Monday February 24 days. 2 Monday September 24 days. 2 Monday June 24 days. 3 Monday November 24 days. 2 Monday September 24 days. 4 Monday November 24 days.

Leslie. Leslie. 3 Monday March 18 days. 3 Monday March 18 days. 3 Monday August 18 days. 3 Monday August 18 days. 1 Monday November 12 days. 2 Monday November 12 days. ------------------------------------------------------------- Acts 1924, p. 50. Acts 1926, p. 168.

It will be seen that no substantial change was made in the courts in Leslie county. In fact, the only change made in that county was to postpone the November term from the first Monday in November to the second Monday in November and this change would have taken effect if the act had contained no emergency clause, for the act made no change in the courts in Leslie county until November, 1926. It will also be observed that the most substantial change in Perry county was to add the February term. But, as the act was approved on March 25, this provision of the act would have been equally effective if the act had taken effect 90 days after the Legislature adjourned. The only other substantial change in Perry county was to postpone the April term until the second Monday in June. This would have only added to the congestion of the docket; there was less congestion if the court was held in April. It is thus apparent that there was no emergency from the congestion of the docket requiring the act of 1926 to take effect from its approval by the Governor. This is apparent on the face of the two acts.

It will be observed that the Constitution requires that the reasons for the emergency, that justifies this action, must be set out at length. There could be no possible reason for this provision in the clause limiting the power of the Legislature to make an act take effect upon its approval by the Governor, unless it was intended that an emergency clause should not take effect in violation of the provision. To hold otherwise would be to give no effect to this restriction on the power of the Legislature and to hold in effect that the Legislature can make any act take effect immediately at its will. The Constitution of Maine contains a clause very similar to our Constitution. Holding that an act did not take effect immediately, when no emergency in fact was shown, the court, in Payne v. Graham, 118 Me. 251, 107 A. 709, 7 A.L.R. 516, said:

"We think it clear that the above-quoted language of the Maine Constitution (Amended Const., art. 4, pt. 3, section 16) creates a limitation upon legislative power, and that without conforming to it no act can be made an emergency act, and as such be given immediate effect."

In an elaborate note to that case the authorities on the question are collected, and, while there are cases holding that the legislative declaration of the emergency is conclusive, none of these cases involved a constitutional provision requiring the facts constituting the emergency to be "set outat length." The question also came before the Supreme Court of Illinois in Graham v. Dye, 308 Ill. 283, 139 N.E. 390. Although the Constitution of Illinois is not so explicit as the Constitution of Kentucky, the court, holding the act void where no actual emergency appeared, although one was attempted to be declared, said:

"The Constitution does not authorize the passage of an emergency statute, except in case an emergency exists making it important, if not absolutely necessary to accomplish the full purpose of its enactment, that it take effect immediately upon its approval, and by plain language requires the expression of what the emergency is in the preamble or body of the act. To say the mere declaration that an emergency exists fulfills the requirement of the Constitution would be a plain disregard of the language that the emergency shall be expressed in the preamble or body of the act. The statement that an emergency exists is not an expression of the emergency."

These opinions seem to be sound and to declare the only rule that will give any effect to the manifest purpose of the Constitution in restricting the power of the Legislature in passing laws to take effect immediately. When a law takes effect 90 days after the Legislature adjourns, this gives time for the law to be published and for the officials of the state, as well as the people, to conform to it. It has been held that it will be conclusively presumed that an act, which was signed by the presiding officer of each house and approved by the Governor, was duly passed, and that evidence will not be heard to the contrary. But no evidence is offered here to contradict the act. The act contains on its face the evidence of the infirmity of the declared emergency. For the court must take notice of the uniform mode of doing business by the Legislature, for the last 30 years, under the Constitution.

The court, therefore, concludes that the emergency clause in this bill was ineffective and that the bill took effect 90 days after the adjournment of the Legislature. This being true, the term of circuit court was properly held in April under the act of 1924, and, no other objection being shown to the proceeding, the judgment cannot be disturbed.

To read the journals here is not to hear evidence to impeach the signatures to the bill, or anything in it, as in Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123, 18 Ky. Law Rep. 17, 32 L.R.A. 203. The infirmity appears on the face of the act.

Judgment affirmed. Whole court sitting.

Chief Justice Clay and Judges Dietzman and McCandless dissenting.