BLACK LETTER LAW RE: THE KY. STATE SENATE ELECTION CONTEST   

The following resource materials are at issue in the contest affecting the 37^th. Senatorial Dist. of Jefferson County.  The Republican controlled Senate claims the right to seat a person who has been determined by the courts not to be eligible for the office of state senator.  The Senate claims an absolute right to seat anyone.

Three cases cited below don’t squarely answer the question but certainly appear to side with the Senate on this issue.  However such a ruling works to make Section 32 a nullity.  And retired Chief Justice John S. Palmore suggests that the State Senate's argument may violate Section 2 of the Ky. Constitution. (see Retired Chief Justice Palmore suggests Sec. 2 decides the issue ).

The rules of  legal construction require the courts to interpret the law to give meaning to all laws if possible. One avenue is for the court to find that one must meet the qualification for Sectionj 32 before the legislature has opportunity to choose between two otherwise eligible candidates.  Further the last sentence in Section 38 seems to limit the power of the Senate to make a naked power grab….and in the case of a “contested election” the matter is to be determined according to law..i.e. by the courts applying statutory law.  That sentence is interesting and may limit the Senates powers.

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Kentucky Constitution Section 2

Absolute and arbitrary power denied.  - Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.   see Retired Chief Justice Palmore suggests Sec. 2 decides the issue 

Kentucky Constitution        Section 32

Qualifications of Senators and Representatives.

No person shall be a Representative who, at the time of his election, is not a citizen of Kentucky, has not attained the age of twenty-four years, and who has not resided in this State two years next preceding his election, and the last year thereof in the county, town or city for which he may be chosen.

Text as Ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended.

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Kentucky Constitution        Section 38

Each House to judge qualifications, elections, and returns of its members -- Contests.

Each House of the General Assembly  shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law.

Text as Ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended.

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Kentucky Constitution  Section 109                                                 The judicial power -- Unified system -- Impeachment. -- The judicial power of the Commonwealth shall be vested exclusively in one Court of Justice which shall be divided into a Supreme Court, a Court of Appeals, a trial court of general jurisdiction known as the Circuit Court and a trial court of limited jurisdiction known as the District Court. The court shall constitute a unified judicial system for operation and administration. The impeachment powers of the General Assembly shall remain inviolate.

Text as Ratified on: November 4, 1975, effective January 1, 1976.
History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891.

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Retired Chief Justice John S. Palmore, cites Section 2 of the Ky. Constitution as bar to arbitrary power 

 Letter to the Editor of the Louisville Courier Journal, Jan. 20, 2005

"The first 26 sections of the Kentucky Constitution are designated as the Bill of Rights. The text of Section 2 reads as follows:

“Arbitrary and absolute power over the lives, liberty and property of freeman exists nowhere in a republic, not even in the largest majority.”

Section 26, the concluding provision of the Bill of Rights, declares that “every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this constitution, shall be void.”

Through the years, I have marveled that this basic principle, so clearly and forcefully expressed in Section 2 of the constitution, is so seldom mentioned or put to use by our courts.

What this fundamental precept means is that even though a power may exist, it cannot be exercised arbitrarily. The power of a legislative body to judge the election and qualification of its own members is conferred in Section 38 of the constitution. Section 26 subordinates Section 38 to the Bill of Rights, including Section 2. Hence, if a legislative house uses its power under Section 38 in an arbitrary manner, that action is void.

Section 109 of the constitution says that the judicial power of this state shall be vested exclusively in one Court of Justice. Of necessity, whether an action is arbitrary is a judicial question. If that issue is properly presented, the power of a court to decide it supersedes any exercise of legislative power under Section 38. To suggest that the power conferred by Section 38 has no boundaries is simply silly.

My pitch here is not for or against any particular party. I am just an old admirer of Section 2 of our constitution, and this will not be the first time I have said it is a beautiful concept. Let’s pay more attention to it."

John S. Palmore

Frankfort, Ky.

                                                                   (emphasis added by LawReader) 

To read Sec. 2 click on: Kentucky Constitution Section 2

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Cases  Mentioning Section 38:

Witten v. Sternberg,

Raney v. Stovall

In re Appointment of Clerk of Court of Appeals

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In re Appointment of Clerk of Court of Appeals., 297 S.W.2d 764 (Ky.App. 01/22/1957

The doctrine of the separation of governmental powers, Sections 27 and 28, runs like a golden thread throughout the fabric of our government. For example, the General Assembly is the sole judge of the election and qualifications of its members, Section 38, it alone can expel a member, Section 39, and vacancies in the General Assembly can be filled only by an election by the people, Section 152. The Circuit Courts are authorized by statute to fill vacancies in the office of Circuit Court Clerks by court appointment. KRS 63.220(2). And it is common knowledge that the General Assembly selects its employees, so does this Court, and so does the Executive Branch.

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Raney v. Stovall, 361 S.W.2d 518 (Ky.App. 10/26/1962)

[1]            COURT OF APPEALS OF KENTUCKY

[2]           

[3]            1962.KY.40038 <http://www.versuslaw.com>; 361 S.W.2d 518

[4]            October 26, 1962

[5]            TOM RANEY ET AL., APPELLANTS
v.
THELMA STOVALL, TREASURER, COMMONWEALTH OF KENTUCKY. APPELLEE

[6]            Louis Cox, William A. Logan, Hazelrigg & Cox, Frankfort, J. E. Sanders, Pikeville, for appellant Raney.

[7]            Hunter B. Whitesell, Asst. Atty. Gen., Frankfort, for appellant Matthews.

[8]            Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, for appellee.

[9]            Clay

[10]          CLAY, Commissioner.

[11]          This declaratory judgment action presents two significant questions. The first is whether the State Treasurer may question the constitutional legality of a warrant issued by the Commissioner of Finance. If she may properly do so, the ultimate issue is whether she must honor such warrants drawn in favor of the plaintiff Raney for compensation and allowances due him as a state senator. These questions arise under the following circumstances.

[12]          Raney was duly elected to the Senate in November 1959 for a four year term. His qualifications were accepted and approved by that body at the 1960 session of the General Assembly and he served throughout the session.

[13]          On April 1, 1960, he was appointed a deputy sheriff in Pike County and performed the duties of that office through December 31, 1961. Under a permissible construction of the terms of section 165 of the Kentucky Constitution and KRS 61.080 and 61.090, the office of senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first. However, on February 13, 1962, being faced with this question, the Senate adopted a resolution recognizing Raney as a duly qualified senator.

[14]          The Commissioner of Finance in due course issued warrants covering compensation and allowances to which plaintiff Raney would be entitled if he was a de jure senator during a part of the period he held both offices (January 29, 1962 to March 16, 1962). The Treasurer refused to honor these warrants on the ground that as a matter of law plaintiff Raney had vacated the office of state senator on April 1, 1960, and payment of the claim would be illegal. This suit was then brought by Raney and the Commissioner of Finance against the Treasurer to require her to pay the claim, and to enjoin her from refusing to issue checks upon warrants properly presented by the Department of Finance. The Chancellor adjudged (1) the Treasurer may question the constitutional legality of claims against the Commonwealth, and (2) plaintiff Raney was not entitled to the compensation and allowances represented by the warrants involved in this controversy.

[15]          It is appellants' contention that the Treasurer must honor any warrant issued by the Department of Finance. The basis of this argument is that pertinent statutes vest the Department with exclusive authority to determine the propriety and legality of claims against the treasury, and require the Treasurer as a ministerial officer to pay them absolutely on the Department's order.

[16]          The statutory law neither specifically grants to the Department of Finance the exclusive power contended for nor denies the Treasurer a right to question claims. While the Commissioner of Finance is designated the chief financial officer of the State with the duty to protect its financial interests (KRS 42.020), the only direct powers he is given with respect to claims against the State are: (1) to preaudit expenditures (KRS 42.030(e)), and (2) to examine statements of indebtedness, and if found "correct" and there is a sufficient amount to pay the claim in the budget unit against which the claim is chargeable, to issue warrants upon the State Treasurer (KRS 45.220(1)). There is no provision of the law recognizing the Commissioner of Finance as the final arbiter of the legality of a claim against the Commonwealth.

[17]          It is true the Treasurer is directed to accept warrants drawn by the Department of Finance (KRS 41.150); shall not withdraw public moneys except on such warrants (KRS 41.110); and such warrants constitute authority for the disbursement of public money (KRS 41.120). To the extent the Department of Finance is authorized to certify the correctness of a claim from an accounting and bookkeeping standpoint, the warrant must be honored by the Treasurer. However, the specific right to question the validity of a claim on constitutional grounds is not reposed by statute in either the Department of Finance or the State Treasurer. Such right of either or both stems from the general provisions of both the Constitution and the statutes which fix a basic public policy with respect to the expenditure of public funds.

[18]          The first sentence of section 230 of the Constitution provides in part: "No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; * * *." Similarly KRS 44.010 recognizes proper claims upon the State Treasurer are those "authorized by law" and KRS 41.130(2) prohibits the issuance of a warrant unless the money to pay it has been "appropriated by law". Since the Constitution is the supreme law of the Commonwealth (see Rhea v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A.,N.S., 989), the expenditure of public funds in violation thereof is forbidden.

[19]          As an original proposition, it would be curious indeed if a constitutional officer who is immediately in charge of the receipt and disbursement of all funds of the Commonwealth would be powerless to question the constitutional validity of a claim against it. While appellants contend that by virtue of a 1936 reorganization act the Treasurer was effectively stripped of everything but ministerial duties, we find nothing in the statutes that extinguishes his obligation to function under the Constitution and in conformity with his constitutional oath of office (section 228 of that instrument).

[20]          This Court has consistently recognized that public officers charged with the disbursement of public funds may question the validity of a claim on the ground that it violates the Constitution. Norman, State Auditor v. Kentucky Board of Managers of World's Columbian Exposition, 93 Ky. 537, 20 S.W. 901; Rhea v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A.,N.S., 989; Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197; Reeves v. Gerard, Ky., 255 S.W.2d 21.

[21]          Appellants contend the Treasurer has only ministerial duties to perform, that she would not be liable on her bond in honoring these warrants, and that the record fails to show she was acting on the advice of the Attorney General. (Though not shown by the record, apparently the Attorney General had advised her that the offices were incompatible.) Assuming without deciding that these premises are correct, they do not resolve the basic issue. We are not here concerned with the characterization of the nature of the Treasurer's duties, nor with protecting her from liability, nor with the source of her legal advice. We are concerned with protecting the public from the illegal expenditure of public funds.

[22]          The Constitution fixes a policy with respect to public expenditures which surely must infuse the code of conduct of constitutional officers, particularly those charged with control of public funds. The designation by the legislature of certain specific duties and responsibilities of the Treasurer (under section 93 of the Constitution) did not extinguish the implied obligations of the office. In our opinion the Treasurer may properly, acting in good faith, upon a substantial constitutional ground, raise a question for judicial determination concerning the legality of a claim upon the treasury. The Chancellor correctly adjudged that phase of the controversy.

[23]          This brings us to the ultimate question of whether the Treasurer must honor the warrants of the Department of Finance drawn in favor of plaintiff Raney. For the purpose of outlining this controversy earlier in the opinion, we ventured an interpretation of the Constitution and the statutes concerning the incompatibility of the offices of senator and deputy sheriff. It is appellants' contention that we are without authority to make such a judicial determination because the Constitution places in another department of government the absolute and final authority to decide the issue.

[24]         Section 38 of our Constitution provides in part:

[25]          "Each house of the General Assembly shall judge of the qualifications * * * of its members * * *."

[26]          The question before us has not heretofore been presented or decided in Kentucky. While the incompatibility of offices has been considered in a number of cases, and it has been held that a vacancy in an earlier office occurs when an incompatible office is subsequently accepted, we have not had a case involving a determination of that question by a legislative body with respect to one of its own members. We may even assume, as was stated in Meagher v. Howell, 171 Ky. 238, 188 S.W. 373, that from a judicial standpoint the acceptance of an incompatible office would create a vacancy in the office of the Senate. The whole point of appellants' argument is that a branch of the legislature, vested with full authority by the Constitution, has made a conclusive and contrary determination with which we are powerless to interfere.

[27]          This problem has been considered in other jurisdictions. Upon what we consider sound reasoning, authoritative adjudications are to the effect that the right of a legislative body to judge the qualifications of its members includes the right to decide finally whether or not one of them has become disqualified during his term of office, and this decision is not subject to court review.

[28]          Substantially the identical situation was presented in State ex rel. Biggs v. Corley, 6 W.W.Harr. 135, 36 Del. 135, 172 A. 415. In that case three duly elected senators had subsequently accepted incompatible offices, but the Senate by resolution declared no vacancies existed and the three were accepted as fully qualified. The provisions of the Delaware Constitution are practically the same as ours with respect to both the authority of the legislature and the incompatibility of offices. It was held that since the sole jurisdiction to determine the qualifications of its members was placed by the Delaware Constitution in the Senate, the courts had no power to pass upon the question of whether or not the acceptance of another office disqualified the member. The court said (page 420 A.):

[29]          "When a question involving an implied resignation of one office (it not being that of a member of a legislature), by the acceptance of another office, is presented to the courts for decision, the courts have jurisdiction in the full and complete sense of having power and authority to decide and to enforce the execution of what is decreed, and no difficulty arises. But, when the first office is that of a representative or senator in the General Assembly, and the question arises whether the acceptance of another office operates as an implied resignation of the first, * * * the Courts, ordinarily constituted, may not proceed to hear and adjudicate, for they are not the tribunals provided by the Constitution for the determination of such question. They have no jurisdiction for the reason that another and different tribunal possesses the sole jurisdiction, that is, the senate or the house as the case may be, under that provision of the Constitution which gives to each house of the legislature the right, power and authority to judge of the elections, returns and qualifications of its own members. This is necessarily so, for the power and authority must reside somewhere, the departments of government must be separate and distinct, free and independent, and, while the courts will jealously guard its powers and jurisdictions, they will be careful not to infringe upon the powers, prerogatives and jurisdictions of the legislative department."

[30]          In People ex rel. Drake v. Mahaney, 13 Mich. 481, nine members of the House of Representatives were elected under a statute subsequently declared unconstitutional. The legislative body accepted those members as duly elected and qualified, and it was held that the courts had no authority to review this determination. In that case it was pointed out that the legislature and the courts might have conflicting views as to the qualifications of a member of that body but that the exclusive power to make the final determination had been lodged in the legislature by the Constitution. It was also stated in that opinion that it made no difference whether the question passed upon by the legislative body was a question of law or fact.

[31]          In State ex rel. Martin v. Gilmore, 20 Kan. 551, the question was whether or not the court had authority to determine that a member of the legislature had forfeited his office by reason of a violation of a statute. Therein the court said (page 554):

[32]          "The constitution declares, article 2, section 8, that 'Each house shall be judge of the elections, returns, and qualifications of its own members.' This is a grant of power, and constitutes each house the ultimate tribunal as to the qualifications of its own members. * * * And this power is not exhausted when once it has been exercised, and a member admitted to his seat. It is a continuous power, and runs through the entire term. At any time, and at all times during the terms of office, each house is empowered to pass upon the present qualifications of its own members. By section 5 of the same article, acceptance of a federal office vacates a member's seat. He ceases to be qualified, and of this the house is the judge. If it ousts a member on the claim that he has accepted a federal office, no court or other tribunal can reinstate him. If it refuses to oust a member, his seat is beyond judicial challenge." (Our emphasis.)

[33]          This Court has recognized in a case involving the Constitution of the United States and the Federal Congress that the vesting of certain powers in a legislative body may constitute exclusive power to pass upon the qualifications of its members, thereby depriving the court of authority to adjudicate on that subject. Burchell v. State Board of Election Commissioners, 252 Ky. 823, 68 S.W.2d 427.

[34]          It is contended by appellee that, assuming the Senate has the exclusive right to pass upon the qualifications of its members, the term "qualifications" is confined to those specified in section 32 of the Constitution (which relates to citizenship, age and residence). It is said that those matters are not in controversy and that what is here involved is a subsequent disqualification under another section of the Constitution. This limited view of the power of the legislature is not consistent with either reason or authority.

[35]          In determining the question, it is important to consider the reason and justification for this constitutional scheme. The work of a legislative body requires the active and continuous participation of its members, particularly when in session. There is a real necessity for the summary determination of their eligibility and qualifications. If the continuing qualifications of those members were subject to litigation in the courts, particularly during a session and particularly in view of unavoidable judicial delay, the conduct of public business could be completely disrupted.

[36]          We think this consideration has a significant bearing upon the power granted the legislature by section 38 of the Constitution. If the power were limited to the qualifications specified in section 32 thereof, it would be exhausted as soon as the membership of each house was accepted at the beginning of each term. At any given time thereafter, due to disqualifying events, there could exist extreme uncertainty with respect to the validity of votes cast by questioned members. The most practical method of dispelling such possible recurring confusion is by summary proceedings within the department so vitally affected.

[37]          The broad scope of the term "qualifications" has been accepted in decided cases. In Commonwealth v. Jones, 10 Bush. 725, 73 Ky. 725, 745, it was stated that this term "implies not only the presence of every requisite which the constitution demands, but also the absence of every disqualification which it imposes." Continuing qualifications are just as important as those initially required. If the power were limited as appellee contends, section 38  of the Constitution would not fulfill its apparent and pragmatic purpose. As was so clearly pointed out in State ex rel. Martin v. Gilmore, 20 Kan. 551, from which we have quoted above, the alleged disqualification in this case is precisely the type of question over which the legislature should have continuing jurisdiction. We conclude the Senate properly acted within the scope of the authority vested by section 38 of the Constitution.

[38]          Appellee suggests the action of the Senate with respect to Raney constituted such a clear violation of the Constitution that the courts should rectify the error. However, the fact that the legislature may make a wrong decision is no reason why the judiciary should invade what has been designated as the exclusive domain of another department of government. See Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L.R.A. 258. We must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. With respect to this subject matter, the people have reposed that responsibility in the legislature. The courts are without jurisdiction to review its solemn determination.

[39]          It is our opinion that appellant Raney is entitled to the compensation and allowances withheld by the appellee and the warrant issued by the Department of Finance must be honored. To this extent the judgment must be reversed.

[40]          The judgment is affirmed in part and reversed in part, with directions to amend the judgment consistent with this opinion.

[41]          MONTGOMERY, J., dissenting.

[42]          MONTGOMERY, Judge (dissenting).

[43]          I respectfully dissent from so much of the majority opinion as holds that the state treasurer may question a claim as being unconstitutional. The majority opinion holds that such authority is implied. My objection is two-fold: (1) The constitutional section relied on does not support the implication; and (2) the Constitution expressly provides that the duties of the treasurer shall be fixed by statute and have so been fixed.

[44]          The fallacy in the implication is that Section 230 of the Constitution, relied on, deals with a prohibition against the payment of money from the Treasury unless appropriated. This authorizes the treasurer to question a claim on the ground that money has not been appropriated for it. It does not authorize the treasurer to question a claim as being constitutionally invalid.

[45]          This conclusion is supported by Sections 91 and 93 of the Constitution concerning the treasurer and other public officers and providing that their "duties and responsibilities * * * shall be prescribed by law." The inclusion of the same delegation of power to the General Assembly twice in the Constitution is a clear indication that the duties and responsibilities of the treasurer and such other named officers should be prescribed by the General Assembly.

[46]          This is exactly the conclusion reached in Ferguson v. Chandler, 266 Ky. 694, 99 S.W.2d 732, when the same constitutional sections were considered with reference to the duties and responsibilities of the commissioner of agriculture, an officer named with the treasurer in Sections 91 and 93. In construing the reorganization act of 1934 concerning the duties of the commissioner of agriculture, this Court held that Section 91 of the Constitution did not define the duties of the commissioner but expressly conferred this privilege upon the General Assembly, and that the statute enacted by the General Assembly should be looked to in order to ascertain the commissioner's duties and responsibilities. The Ferguson v. Chandler decision would seem decisive of the question here. It is neither discussed, distinguished, nor overruled in the majority opinion. For the same result concerning the county treasurer, see Breathitt County v. Cockrell, 250 Ky. 743, 63 S.W.2d 920, 92 A.L.R. 626.

[47]          The conclusion that the Ferguson v. Chandler decision is sound and should control here is fortified by reference to the various subsequent reorganization statutes which make the commissioner of finance the chief financial officer of the state, charged with protecting the financial interest of the state and expressly directing the payments of claims by the treasurer on warrants from the commissioner. Carroll's Kentucky Statutes, Section 4688; KRS 41.120, 41.150(1), and 41.160. KRS 41.120 expressly provides that the warrant of the commissioner of finance shall "constitute full and sufficient authority to the Treasurer for the disbursement of public money in the amount set forth."

[48]          It, therefore, is concluded that the treasurer's duties and responsibilities with respect to processing claims are purely ministerial so long as there are appropriated funds, and that the treasurer had no right to question the claim presented on constitutional grounds.

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Witten v. Sternberg, 475 S.W.2d 496 (Ky.App. 12/17/1971)

I further believe the court is in error in holding KRS 83.060 to be constitutional. This statute gives to the legislative body of a city of the first class the same right to judge the qualifications and election of its members as is given to the state legislature to judge the qualifications and election of its members under section 38 . My first observation concerning this act of the legislature is that had the framers of the Constitution intended for members of the city legislative bodies to have this power they would have granted it by naming them in section 38 , or, in lieu, they would have specifically granted to the legislature the right to extend this privilege to municipal bodies. The framers of the Constitution saw fit to do neither.

[41]   Several of our states' legislatures have attempted to extend this power to municipal bodies and in many instances when the question came before the courts they have held the extension valid on the grounds that the language of the extension is similar to that found in the Constitution making the legislative branch of government the judge of the qualifications of its members. This is not valid reasoning. For a criticism of it see 26 L.R.A.(N.S.), p. 209, wherein it is pointed out as follows:

[42]  "Courts assigning this reason, however, overlook the fact that the courts never had any jurisdiction to determine the election and qualification of members of the legislature, because the people, when giving judicial power to the courts by the Constitution, by the same instrument withdrew from the judicial power granted jurisdiction over disputes relative to membership in the legislature; whereas the courts always had jurisdiction to issue writs of quo warranto when not expressly deprived of it by statute. This reason is criticized in the following cases: People ex rel. Barton v. Londoner [13 Colo. 303, 22 P. 764], supra; Meachem v. New Brunswick, 73 N.J.L. 121, 62 Atl. 303; People ex rel. Hatzel v. Hall, 80 N.Y. 117; State ex rel. Mahoney v. McKinnon [8 Or. 493] and State ex rel. Anderton v. Kempf [69 Wis. 470, 34 N.W. 226], supra."

[43]   At one time in the history of our Commonwealth the legislature attempted to create an election contest board to determine the outcome of all elections. This court held the act to be unconstitutional as an infringement on the constitutional power of the judicial branch of government. See Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901). There is no way to escape the conclusion that KRS 83.060 is subject to the same criticism. It likewise is an attempt to grant to municipal legislative bodies a judicial power that was not granted in the Constitution and to create a body judicial in nature that is expressly prohibited by the Constitution. For this reason our opinion in Jackson v. Randolph, Ky., 311 S.W.2d 541, is in error. The weakness of that case is patent to anyone with the slightest knowledge of the constitutional history of the subject. (See Appendix).

[44] Provisions in the constitutions of the several states that permit the legislative body of the state to adjudge the qualification and election of its own members have a counterpart in the Constitution of the United States. Article 1, Section 5. There is considerable history behind these provisions starting in 1553 when one Alex Nowell was denied a seat in the House of Commons. The case that properly inspired the insertion of the provision in the Constitutions of the early colonies in America was the case of Robert Whalepole who was excluded from the House of Commons in 1712 and committed to the Tower. While thus incarcerated he was reelected to the House and again excluded. For a more complete history of this matter see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed. 491. In 1726 the Massachusetts House of Representatives excluded Gresham Woodle from membership. In 1758 North Carolina excluded Francis Brown for perjury. He was reelected twice in 1760 and excluded on both occasions. I point out the foregoing for the purpose of showing that prior to the adoption of most state Constitutions, including our own, it was a well-established rule that the legislative branch of government had a right to adjudge the election and qualifications of its own members and to expel those whom it did not believe had a legal right to sit. This right has been preserved to the legislative branch of government for the reason that it is a co-equal branch with the judiciary. A city legislative body which has the power to legislate for a limited jurisdiction is by no stretch of the imagination a co-equal branch of government with the judiciary of a nation or a state. Therefore, there is no historical precedent for extending this privilege to municipal legislative bodies.

[45]  In Jackson v. Randolph, supra, this court held that the legislature by virtue of Section 153 of the Constitution had authority to grant to the legislative bodies of municipalities the right to adjudge the election and qualifications of their own members the same as did the legislature under section 38. The court in that opinion cites no legal precedent for its holding. An examination of the material contained in the Appendix to this opinion will demonstrate that at the time there existed more legal precedent for setting up legislatively an independent body to determine the election of judges and clerks of the Court of Appeals than there was for permitting municipal bodies to determine the election and qualifications of their members. Article 4, Section 14 of the Constitution of 1850 expressly so provided and it is clear that this article was brought into Section 153. However, this court specifically held that the legislature could not create such board in Pratt v. Breckinridge, supra. From an examination of the Pratt case and the Jackson case it becomes clear that this court has never previously examined the true nature of Section 153 nor explored its historical origin. This may explain why it was not utilized in one case where precedent would indicate that it should have been and was extended in another where there was no precedent for its extension.

[46]     My third reason for believing the court erred in this case is because it denied jurisdiction to the judicial branch of government to enforce the provision of Section 6 of the Constitution on the grounds that a city legislative body acting under KRS 83.060 has the same powers to adjudge the election and qualifications of its members as is granted to the legislature by section 38 of the Constitution. The court further determines that the power to extend this immunity to city legislative bodies is given to the legislature by Section 153 of the Constitution.^*fn1

[47]    To me Section 153 only authorizes the legislature by general law to set up the election machinery and insofar as it bestows upon the legislature the power to provide for the trial of contested elections this power is limited to trial within the judicial branch of government. The word trial as commonly used is associated with the judiciary and not other branches of the government. See Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136; Wilson v. Brown, 109 Ky. 229, 58 S.W. 595. In any event if it should be concluded that the legislature had the authority under Section 153 to permit city legislative boards to adjudge the election and qualifications of their members, that power can be no greater than that bestowed directly on the general assembly under section 38 . It is my contention, as hereinafter set out, that this court would have jurisdiction if the contest here in question were for seats in the General Assembly.

[48]   The Supreme Court of the United States has recently faced the difficult problem presented to the judiciary in determining the extent of the rights of a legislative body to judge the qualifications and election of its own members. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Powell v. McCormack, supra. In Baker v. Carr suit was instituted by certain voters of Tennessee alleging that because of the power, manner and imbalance in the population in districts in Tennessee, a vote for members of the Tennessee legislature did not count for the same as votes for other members. The district court dismissed the complaint on the grounds that it lacked jurisdiction of the subject matter. The basis for this holding was that legislative bodies inherently have the power to adjudge the qualification and election of their own members and, therefore, the courts could not inquire into the electoral process of these members. The Supreme Court of the United States held that this was error and that the courts have jurisdiction of the subject matter any time a citizen alleges that he is being deprived of his rights under the Constitution. A more serious question was presented to the court in that case in that it was contended that even though the court had jurisdiction, the subject was nonjustifiable because it was a matter in which the courts were injecting themselves into a political question, to-wit, one exclusively within the power of another branch of government - the legislature. The court rejected this contention. In dealing with the question the court quite aptly observed that in all instances the court ultimately must be the final interpreter of the Constitution. In the course of its opinion the court summarizes its position as follows:

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