Lackey v. Garner

BIRD, Judge. The General Assembly of Kentucky at its regular session in 1960 enacted into law KRS 118.450(4) which reads as follows: “Each county shall acquire voting machines meeting the specification of Section 125.040 of the Kentucky Revised Statutes, for each precinct in which such machines are not already in use, no later than the primary election in 1963; provided, however, that (a) counties containing a population of 21,000 or more shall acquire voting machines for each precinct therein prior to the primary election in 1961; (b) counties containing a population of over 13,000 and less than 21,000 shall acquire voting machines for each precinct therein prior to the primary election in 1962; and (c) counties containing a population of 13,000 or less shall acquire voting machines for each precinct therein prior to the primary election in 1963; provided, however, that nothing contained herein shall be con [258] strued to prevent a county from acquiring voting machines prior to' the general election in November, 1960.” Emphasis added. It is claimed in the action that the mandatory provisions of the statute are in violation of Section 147 of the Constitution of Kentucky. The issue was heard in the Pulaski Circuit Court where the statute was held unconstitutional because of its mandatory provisions. The parties seeking compliance with the statute have appealed. The pertinent part of Section 147 of the Constitution of Kentucky reads as follows: “Counties so desiring may use voting machines, * * The eminent trial judge construed the foregoing words of the constitution as prohibiting the legislature from enacting its mandate. In this we admit that the trial judge was not without authority. Billiter v. Nelson, Ky., 300 S.W.2d 790. In the Billiter case this Court placed its construction on the “may” provision of Section 144 of the Constitution of Kentucky, a provision quite similar to the “may” provision of Section 147 involved in this action. Section 144 provides that counties may have commissioners. An Act of the General Assembly required certain counties to have commissioners. This Court pointed out that the Constitution intended that all counties have an option and held the mandatory requirements of the Act unconstitutional. It is now the opinion of a majority of the members of the Court that the holding in the Billiter case is too restrictive. The Court agrees that the wording of Sections 144 and 147 provides options which may be exercised by the counties but it does not agree that the wording in either section precludes a mandatory requirement by the General Assembly. Without legislative action the counties may exercise an option but the constitutional provision does not preclude mandatory action by the legislature. It is the Court’s conclusion that KRS 118.450(4) does not violate Section 147 of the Constitution of Kentucky. Other cases in conflict with this opinion are overruled and the judgment of the trial court is therefore reversed. The trial court is directed to enter a judgment in conformity with this opinion.