Willson v. Hahn

Opinion of the Court by Judge Hobson Reversing. C. B. Butner, the police judge of Tyrone, Ky., a town of the sixth class in Anderson county, died on July 7, 1908. On July 9th the hoard of trustees of the town appointed B. S. Hahn to fill the vacancy. On July 11th he presented his certificate of election to the Governor and demanded a commission. The Governor declined to issue the commission and appointed J. N. Johnson as police judge of Tyrone. Thereupon Hahn instituted this suit against the Governor, asking a mandamus requiring the Governor to issue him a commission. The circuit court entered a judgment as sought, and the Governor appeals. [442] The only question necessary to be determined on the appeal is whether the power to fill the vacancy in the office of police judge of Tyrone was vested in the Governor or in the board of trustees. By section 160 of the Constitution the General Assembly may provide how vacancies in offices in towns and cities may be filled. By the original act for the government of towns of the sixth class, to which Tyrone belongs, approved May 6, 1893 (Laws 1893, p. 887, c. 196), it was provided that, “when a vacancy occurs in any of the elective offices provided for in this chapter, the board of trustees shall fill such vacancy by appointment for the time fixed in the Constitution” (section 20). The office of police judge was elective, and under the provision the board of trustees had power to fill a vacancy in the office by appointment. But by an act approved February 10.1894 (Laws 1894,, p. 11, c. 8), it was provided as follows: ^The following officers shall have commissions issued to them by the Governor, that is to say: “Secretary of State, Register of the Land Office, Auditor of Public Accounts, Treasurer, Commissioner of Agriculture, Labor and Statistics, Superintendent of Public Instruction, judges of the Court of Appeals, clerk of the Court of Appeals, judges of the circuit courts, county judges, police judges, railroad commissioners, Commonwealth’s attorneys, justice of the peace, notaries public, and all other officers of the militia of rank and grade higher than and including the rank of captain. Should any vacancy occur in any of said offices by reason of death, resignation or removal of the officer, or from any other cause, or should a like vacancy occur in any other office where there is no provision of law for filling same, such vacancy shall be filled by the appointment of the Governor, subject to the pro [443] visions of the Constitution applicable thereto.” Ky. Stats., 1903, section 3758. As this act was later than the act of May 6, 1893, it repealed that act in so far as it was inconsistent with it. In Daugherty v. Arnold, 110 Ky. 1, 60 S. W. 865, 22 Ky. Law Rep. 1504, the court had before it the proper construction of the act of 1894, and it was there held in effect that the act authorizes the Governor to fill vacancies (1) in all the offices named in the act, and (2) in all other offices where there is no provision of law for filling same. It is insisted for appellee that the rule thus laid down was departed from in Traynor v. Beckham, 116 Ky. 13, 74 S. W. 1105, 76 S. W. 844. But in that case Traynor relied upon an act passed after the act of 1894 above referred to, and it will be observed that the opinion in that ease turns upon the ground that sections 3551 and 3552 were enacted subsequent to section 3758, which is the act of 1894; and in its response to the petition for rehearing on page 27 of 116 Ky., and page 844 of 76 S. W., the court recognized the authority of Daugherty v. Arnold, and recognized that the Governor had authority to fill vacancies in the office of justice of the peace. The difference in the two cases rests on the fact that the Traynor case was held to be controlled by a later statute. The office of justice of the peace and the office of police judge are both named in the act of 1894; and the power of the Governor to appoint a justice of the peace is precisely the same as his power to appoint a police judge, unless by a later act the rule has been changed. It is also insisted that by the' acts of March 16, 1894 (Laws 1894, p. 187, c. 81), and March 19, 1894 (Laws 1894, p. 213, c. 96), which are later than section 3758. Ky. Stats., 1903, above referred to, the Legislature [444] has repealed that act as far as it applies to police judges in towns of the sixth class. These acts simply added to the original section of the act these words: “ And if, from failure to elect at the time fixed by the law, or' other cause, there shall be a vacancy in the entire board of trustees, then the county court of the county shall have power to appoint five trustees, who shall hold their office until the next regular election. ’ ’ In adding these words to the section there is nothing to show a legislative intention to repeal the previous act passed at the same session of the Legislature. They relate to an entirely different subject. The rule is that acts of the same assembly are read together, and are not construed as inconsistent one with the other, if they can be fairly read otherwise. If these words had simply been added to the old act, manifestly they would not show an intention to make any other change in that act, and the fact that the section as amended is reprinted in full in the amendatory act is due to the requirement of the Constitution that this shall be done. The mere reprinting of the section in the act as amended does not, therefore, show any intention on the part of the Legislature to repeal the act of February 10, 1894. We therefore conclude that the board of trustees of Tyrone are without authority to fill the vacancy in the office of police judge, and that their appointment of Hahn gave him ncf right to a commission. Judgment reversed, and cause remanded, with directions to dismiss the petition.