who conscientiously scruple to bear arms, shall not be compelled to do so, but shall pay an equivalent for personal service. (e) SECTION 29. Staff officers, The commanding officers of the respective regiments shall appoint the regimental staff; brigadier generals, their brigade majors; how appointed. major generals, their aids; and captains, the non-commissioned offi cers of companies. SECTION 30. Commission ed officers, the A majority of the field officers and captains in each regiment, shall nominate the commissioned officers in each company, who shall be commissioned by the Governor: Provided, That no nom- nomination of. ination shall be made, unless two at least of the field officers are present; and when two or more persons have an equal, and the highest number of votes, the field officer present, who may be highest in commission, shall decide the nomination. SECTION 31. Sheriffs, ap Sheriffs shall hereafter be appointed in the following manner: When the time of a sheriff for any county may be about to expire, pointment of. the county court for the same (a majority of all its justices being present) shall, in the months of September, October or November next preceding thereto, recommend to the Governor two proper persons to fill the office, who are then justices of the county court; and who shall, in such recommendation, pay a just regard to seniority in office and a regular rotation. One of the persons so recommended shall be commissioned by the Governor, and shall hold his office for two years, if he so long behave well, and until a successor be duly qualified. If the county court shall omit, in the months aforesaid, to make such recommendation, the Governor shall then nominate, and by and with the advice and consent of the senate, appoint a fit person to fill such office. ARTICLE IV. Concerning the Judicial Department. The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one supreme court, (f) which (e) Persons conscientiously scrupulous of bearing arms, cannot be fined by a court martial for not attending the militia musters. The personal service, spoken of in the above clause, is not such as attendance on the usual company, battalion and regimental musters; attendance on them is only preparatory to the performance of service, and the equivalent, of which the constitution speaks, cannot be exacted in the shape of a fine imposed by a court martial. It must be enforced by some legislative enactment, ascertaining the equivalent, and providing for its collection. -White & Voorheis v. McBride, 4 Bibb, 61. (ƒ) There can be but one Court of Appeals. Such a court, de facto, cannot exist under our constitution. While the executive and legislative department remain, there can be no de facto judicial department or head of the department, unless it also be so de jure. The Court of Appeals is established by the constitution, and the act of the legislature of Kentucky, in 1824, attempting to abolish it, and create a new Court in its stead, was unconstitutional. The officers attempted to be created by that act, never had a constitutional existence; and all their acts, as well as those of their Clerk, were null and void.--Hildreth's heirs v. McIntire's heirs, 1 J. J. Mar. 208. Stark's Adm'r. v. Thompson's Adm'r. 3 J.J.Mar.299. shall be styled the Court of Appeals, and in such inferior courts as Court of Appeals and infe- the general Assembly may from time to time erect and establish. (g) rior Courts. Jurisdiction SECTION 2. The court of appeals, except in cases otherwise directed by this of the Court of Constitution, shall have appellate jurisdiction only, (h) which shall Appeals. be co-extensive with the state, under such restrictions and regulations; (i) not repugnant to this constitution, as may from time to time be prescribed by law. Judges, tenure of office. SECTION 3. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour; but for any reasonable cause, which shall not be sufficient ground of impeachment, the Governor shall remove any of them, on the address of two thirds of each house of the general assembly: Provided, however, That the cause or causes for which such removal may be required, shall be stated at length in such address, and on the journal of each house. Their salaries. They shall, at stated times, receive for their services an adequate compensation, to be fixed by law. May be removed by address. the peace. SECTION 4. All judges, The judges shall, by virtue of their office, be conservators of the conservators of peace throughout the state. The style of all process shall be, "The Commonwealth of Kentucky." All prosecutions shall be carried on in the name, and by the authority of the Commonwealth of Kentucky, and conclude against the peace and dignity of the Process and prosecutions to be in the name of the Com nwealth. same. (j) County Courts. SECTION 5. There shall be established in each county now, or which may hereafter be erected within this commonwealth, a county court. (g) Under this clause it is held, that the act of 1812, increasing the jurisdiction of justices of the peace, is constitutional.—Head v. Hughes, 1 Mar. 372. (h) A mandamus to the Register is an original, not an appellate jurisdiction; therefore the Court of Appeals cannot award it. A mandamus cannot be awarded by the Court of Appeals, unless it be for the revision and correction of a judicial decision.--Morgan v. The Register, Har. 609. 2. The writ of mandamus is an emanation from, and an incident to, original jurisdiction only, and the Court of Appeals has no power to award it.-Daniel v. Warren County Court, 1 Bibb, 496. 3. When no application has been made to the Court below to correct errors or irregularities in an execution, or endorsement thereon, the Court of Appeals cannot entertain jurisdiction to enquire into them.—Smith v. Carr, &c. Har. 308. (i) Under this clause, the legislature may restrict the appellate jurisdiction of the Court of Appeals, as to the sum of money on which it shall operate; may declare from what Courts appeals may be taken; the time within which they shall be taken, and within which the records shall be lodged. They may also provide, that an appeal may be taken from an interlocutory or final judgment, and declare what form the suit shall assume, before the jurisdiction of the Court of Appeals shall attach.--Baylor v. Hart, Pr. Dec. 147. See Davis v. Ballard, 1J. J. Mar. 574. (j) An attachment should run in the name of the Commonwealth.-McDaniel v. Sappington, Har. 94. See the case of Gaines, &c. v. Buford, 1 Dana, 489. SECTION 6. Justices of of office: ed by address. A competent number of justices of the peace shall be appointed the peace, tenin each county; they shall be commissioned during good behaviour, ure but may be removed on conviction of misbehaviour in office, or of may be removany infamous crime, or on the address of two thirds of each house of the general assembly: Provided, however, That the cause or causes for which such removal may be required, shall be stated at length in such address, and on the journal of each house. SECTION 7. Number of The number of the justices of the peace, to which the several counties in this commonwealth now established, or which may here- Justices. after be established, ought to be entitled, shall from time to time be regulated by law. SECTION 8. When a surveyor, a coroner, or a justice of the peace, shall be needed in any county, the county court for the same, a majority of all its justices concurring therein, shall recommend to the Governor two proper persons to fill the office, one of whom he shall appoint thereto: (k) Provided, however, That if the county court shall, for twelve months, omit to make such recommendation, after being requested by the Governor to recommend proper persons, he shall then nominate, and by and with the advice and consent of the sen ate, appoint a fit person to fill such office. SECTION 9. When a new county shall be erected, a competent number of justices of the peace, a sheriff and coroner therefor, shall be recommended to the Governor by a majority of all the members of the house of representatives from the senatorial district or districts in which the county is situated-and if either of the persons thus recommended shall be rejected by the Governor or the senate, another person shall immediately be recommended as aforesaid. SECTION 10. Surveyors, Coroners, and Justices of the Peace, how ap pointed. Officers of new counties, how appointed. Clerks of how Each court shall appoint its own clerk, who shall hold his office during good behaviour; but no person shall be appointed clerk, only Courts, pro tempore, (1) who shall not produce to the court appointing him, appointed. a certificate from a majority of the judges of the court of appeals, that he had been examined by their clerk in their presence, and under their direction, and that they judge him to be well qualified to (k) When the Governor has appointed one (1) When a person produces a certificate of of the persons recommended as justices of the the judges of the Court of Appeals, of his qualpeace by the County Court, he has done all that ification as Clerk, he cannot be appointed Clerk he is authorized to do on that recommendation, pro tempore. Such a limitation of the office is and if the person appointed refuse to accept, it is unconstitutional and void; and if he be so appointunconstitutional for him to appoint the other per- ed, he shall hold the office during good behaviour. son recommended.-Justices of Jefferson Coun--Stonestreet v. Harrison, 5 Litt. 161. ty v. Clark, 1 Mon. 83. removed. execute the office of clerk, to any court of the same dignity, with How to be that for which he offers himself. They shall be removable for breach of good behaviour by the court of appeals only, who shall be judges ofthe fact as well as of the law. (m) Two thirds of the members present must concur in the sentence. (n) Commissions, style of. Treasurer and Printer, the appointment of. Impeachments. ators SECTION 11. All commissions shall be in the name, and by the authority of the state of Kentucky, and sealed with the state seal, and signed by the Governor. SECTION 12. The state treasurer and printer or printers for the commonwealth, shall be appointed annually by the joint vote of both houses of the General Assembly: Provided, That during the recess of the same, the Governor shall have power to fill vacancies which may happen in either of the said offices. ARTICLE V. Concerning Impeachments. The house of representatives shall have the sole power of impeaching. (m) A proceeding against a Clerk to remove him from office under this clause, must be instituted by leave of the Court, on probable cause shown; must be carried on in the name of the Commonwealth; and it is the duty of the Attorney General to conduct the prosecution.-Commonwealth v. Barry, Har. 229. 2. Proceedings under this section must be confined to misconduct in office.—Ibid, 231. 3. Overcharge for fees, if made from corrupt motives will be cause for a removal from office. But over charge alone will not.—Ibid, 233. Commonwealth v. Arnold, 3 Litt. 324. 4. If the Clerk erase the name of a person returned by the sheriff on the panel of grand jurors, or permit a replevin bond returned into his office to be altered, it will be cause of removal.-Commonwealth v. Barry, Har. 234. 5. As to the certainty required in the specification of charges against a Clerk, and the character of proof that may be admitted under different specifications-see Commonwealth v. Arnold, 3 Litt. 327. 6. That a Clerk, when appointed, was ineligible, is no ground for a prosecution for a breach of good behaviour.-Commonwealth v. Barry, Har. 239. Same v. Lancaster, 5 Litt. 161. 7. For a definition of "good behaviour" in a Clerk, and the duties incident to his office-see Commonwealth v. Chambers, 1 J. J. Mar. 121. 8. There is no limitation to proceedings against a Clerk, and lapse of time is no bar.-Ibid. 9. There are many acts of a Clerk, which, although not sanctioned by law, will not amount to misbehaviour in office, unless they proceed from a corrupt or improper motive; but there are likewise many other acts, which per se constitute misbehaviour in office, and will be cause of removal, although no improper motive can be attributed to the Clerk.-Ibid, 141. For examples of both classes of cases, see same case. 10. Buying his office and coming in by hireing his predecessor to resign and procure his appointment, is not an act on which a prosecution for breach of good behaviour in office, can be founded.-Commonwealth v. Rodes, 1 Dana, 596. 11. As to the mode of conducting the prosecution, and the certainty required in the specifications, and other incidental points-see the above cases of Commonwealth v. Chambers, and Same v. Rodes. (n) Upon the trial of a Clerk, unless a majority of the judges concur as well as to the particular cause for which he should be removed, as in the propriety of such a sentence upon the whole case, he must be acquitted.-Ibid, 604. SECTION 2. To be tried how. All impeachments shall be tried by the senate; when sitting for that purpose, the senators shall be upon oath or affirmation. No by Senate, and person shall be convicted without the concurrence of two thirds of the members present. SECTION 3. Who liable to, and effect of The Governor and all civil officers, shall be liable to impeachment for any misdemeanor in office; but judgment, in such cases, judgment on. shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under this commonwealth; but the party convicted shall nevertheless be liable and subject to indictment, trial and punishment according to law. ARTICLE VI. Members of the General Assembly, and all officers, executive and judicial, before they enter upon the execution of their respective offices, shall take the following oath or affirmation: "I do solemnly swear (or affirm as the case may be,) that I will be faithful and true to the commonwealth of Kentucky, so long as I continue a citizen thereof, and that I will faithfully exccute, to the best of my abilities, the office of according to law." SECTION 2. Treason against the commonwealth, shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or his own confession in open court. SECTION 3. General oath of office. Treason de Bribing and Every person shall be disqualified from serving as a Governor, Lieutenant Governor, Senator or Representative, for the term for treating. which he shall have been elected, who shall be convicted of having given, or offered any bribe or treat, to procure his election. SECTION 4. What to ex Laws shall be made to exclude from office and from suffrage, clude from ofthose who shall thereafter be convicted of bribery, perjury, forgery, fice & suffrage. or other high crimes or misdemeanors. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practices. SECTION 5. No money shall be drawn from the treasury, but in pursuance of appropriations made by law, nor shall any appropriations of money for the support of an army, be made for a longer time than VOL. I. 10 Free suffrage secured. Publie money how to be drawn and ac counted for. |