STONE v. COMMONWEALTH. [104 Ky. 220, 46 S. W. 721.] EMBEZZLEMENT-AGENT OF INSURANCE COMPANYWHO IS NOT.-Although a state agent of an insurance company permits and authorizes a person to write a particular risk, under a special contract, such person is not “an agent or servant" of the company, within the meaning of a statute prescribing a punishment for embezzlement, where the company knows nothing of him beyond seeing his name on the application as solicitor. EMBEZZLEMENT - PART OF MONEY DUE AS A COMMISSION.-A person who receives money, a portion of which belongs to himself as a commission on the whole amount, is not guilty of embezzlement, though he converts the whole to his own use. Little & Little, for the appellant. W. S. Taylor, attorney general, and La Vega Clemments, for the appellee. 222 HAZELRIGG, J. The appellant was tried and convicted for embezzlement of the funds of the National Life Association of Hartford, Connecticut, under the following statute: "If any officer, agent, clerk, or servant of any bank or corporation shall embezzle, or fraudulently convert to his own use or to the use of another, bullion, money, bank notes, or any effects or property belonging to such bank or corporation, or other corporation or any person, which shall have come to his possession or been placed in his care or under his management as such officer, agent, clerk, or servant, he and the person to whose use the same was fraudulently converted, if he assented thereto, shall be confined in the penitentiary not less than one nor more than ten years": Ky. Stats., sec. 1202. On the trial it appeared that appellant was the regular agent at Owensboro for the Fidelity Mutual Insurance Company of Philadelphia; but, learning that certain risks might be written in the Hartford company which could not be accepted in his own company, he, in connection with one Gant, who was an agent for the New York Equitable, procured an application for a ten thousand dollar policy from one Thomas Soaper, appellant having first obtained permission and authority to do so from Gathright, the state agent of the Hartford company at Louisville. The application was signed by appellant as solicitor, and Gathright was informed at the time it was forwarded to him that Soaper's note, amounting to six hundred and eighty-eight dollars, would be taken and discounted, and, after retention of forty per cent thereof for appellant and Gant's share, the balance would be sent to Gathright. 223 The application was forwarded to the company by Gathright, and the risk accepted, and the policy issued. Thereupon appellant and Gant discounted the Soaper note, which was payable to appellant, at one of the banks of the city. Of the proceeds, Gant was paid his twenty per cent. Appellant then appears to have bought New York exchange, to the amount of sixty per cent, to be sent to Gathright, who, it seems, was to retain thirty per cent, leaving thirty per cent for the company. He left the country, however, and the money was never sent. It is clear, we think, that appellant was not, within the meaning of the statute, the agent of the Hartford company, having in his possession, care, or management, money, bonds, notes, or effects belonging to that company. The company never had him employed, and heard nothing of him, beyond seeing his name on the application as solicitor. The simple arrangement was that appellant and Gant, as solicitors under special contract with Gathright, were to forward the application of Soaper to Gathright, take the note of the insured, and, as joint owners of the proceeds, discount the paper, and forward the balance to other owners. The rule seems to be well settled that "in all cases where one receives money, a portion of which belongs to himself as a commission on the whole amount, he is not guilty of embezzlement, though he converts the whole to his own use": 6 Am. & Eng. Ency. of Law, 475, and numerous cases cited. It is different if the whole fund collected belongs to the company, the agent getting his commission in the nature of a rebate out of the sum actually paid over: Clark v. Commonwealth, 16 Ky. Law Rep. 704, 29 S. W. 973. We do not think section 633 of the statute, under the head of "Private Corporations," and defining and regulating the conduct of insurance companies in this state, and providing that, notwithstanding 224 an application for insurance may provide that the solicitor is agent of the insurer, he is yet the agent of the company, has any sort of application to the statute on embezzlement. Under the state of case presented, the peremptory instructions to find appellant not guilty should have been given. Wherefore the judgment of the lower court is reversed, and the cause remanded for proceedings consistent with this opinion. Embezzlement.-A right to deduct commissions out of an amount received gives one such an interest therein that he cannot be cou victed for the embezzlement of it. But a mere right to receive payment in commissions, which the employé has no right to deduct, but which are paid him by his employer, does not create in him an interest in the fund that will prevent conviction: See the extended note to Calkins v. State, 98 Am. Dec. 137, on embezzlement. SINKING FUND COMMISSIONERS v. GEORGE. CONSTITUTIONAL LAW-BURDEN OF PROOF.-It is for those who question the constitutionality of a statute to show that it is either expressly or impliedly forbidden by the constitution. CONSTITUTIONAL LAW-APPOINTMENT TO OFFICENATURE OF FUNCTION OF.-The selection of a board of penitentiary commissioners for a state is not essentially an executive function. Hence, a statute creating such a board, and conferring upon the legislature the duty of appointing the commissioners, whose duties are defined by the act, is not unconstitutional. STATUTE VETOED BILL, WITH EMERGENCY CLAUSE, BECOMES A LAW, WHEN.-When a bill, with an emergency clause, is vetoed by the governor, it becomes a law, under the constitution of Kentucky, immediately upon its passage over his objections. CONSTITUTIONALITY OF LAW-LEGISLATIVE ELECTION OF OFFICERS.-A statute which authorizes the legislature, independent of the governor's voice, to elect a board of penitentiary commissioners, does not require separate action by the two houses; nor is it necessary that a resolution for joint action should be approved by the governor. If the commissioners receive a majority of the votes of both houses and of each house, they are elected. CONSTITUTIONALITY OF LAW-STATUTES, WHEN GOOD IN PART AND BAD IN PART.-If the unconstitutional portion of an act can be stricken out, leaving that which remains complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained. CONSTITUTIONAL LAW-STATUTES AS TO TERMS OF OFFICE-WHEN GOOD IN PART.-When the legislature, in creating offices, is limited to a term not exceeding four years, it violates the constitution by creating a six year term; but where an act provides that three members of the board of police commissioners are to be elected, one for the term of two years, one for four years, and one for six years, that part of the act which adds two years to the constitutional term of four years may be rejected without invalidating the remainder of the act, and there will be three commissioners, one of whom holds for a term of two years, and two hold for a term of four years each. STATUTES-REPEAL OF, AND ITS EFFECT UPON OFFICE HOLDERS.-When a law, under which persons hold office at the legislative will, is repealed, their right to office ceases. Section 89 of the Kentucky constitution, referred to in the opinion, provides for the presentation of bills and joint resolutions to the governor. W. S. Pryor, W. H. Holt, and W. S. Taylor, for the appellants. Bronston & Allen, for the appellees. 263 PAYNTER, J. Several important constitutional questions are involved in this case. During the last session of the legislature, an act was passed, entitled "An act to create a board of penitentiary commissioners and regulate the penal institutions of this commonwealth." Section 1 reads as follows: "That a board of commissioners is hereby created to govern the penitentiaries of this commonwealth. Said board shall consist of three members, to be elected by the general assembly on or before the tenth day of March, 1898. One of whom shall hold his office, to be determined by lot of commissioners elected, for the term of two years, one for the term of four years, and one for the term of six years, or until their successors are elected and qualified." It is contended that the legislature could not constitutionally pass the act and elect the commissioners; that the election of the commissioners is an executive, not a legislative function. There is no express power conferred upon the executive department by the constitution to appoint such officers or agents which the general assembly may designate for the direction or control of the penitentiaries. Neither is such power implied from any provision of the constitution. There is no provision of the constitution which places any limitation on the power of the legislative department to name or select the officers or agents necessary to properly manage the penal institutions. Neither is there any provision of the constitution from which it can be 264 fairly implied that the legislative department shall not elect or select those who may aid or control in the conduct of the affairs of the penal institutions. When the constitution has imposed no limits upon the legislative power, it must be considered practically absolute. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is the exception. When one questions the legislative power to pass a statute, he should show that the constitution expressly prohibits its enactment, or that such prohibition is fairly implied from its provisions. The court said in the case of Slack v. Maysville etc. R. R. Co., 13 B. Mon. 22, that: "It would be difficult, perhaps impossible, to define the extent of the legislative power of the state, unless by saying that, so far as it is not restricted by the higher law of the state and federal constitutions, it may doeveryt...g which can be effected by means of a law. It is the great, supervising, controlling, creative, and active power in the state, subject to the fundamental restrictions just referred to. Whatever legislative power the whole commonwealth has is by the constitution vested in the legislative department, which, representing the popular majorities in the several local divisions of the state, and under no other restraint but such as is imposed by the fundamental law, by its own wisdom, and its own responsibilities, may regulate the conduct and command the resources of all, for the safety, convenience, and happiness of all, to be promoted in such manner as its own discretion may determine. The legislative department performs and finishes its office by the mere enactment of a law. It does not of itself carry the law into operation. This 265 is necessarily done by extrinsic agencies. The law, being made known, may be universally observed or obeyed. It may be enforced by the judiciary, or by the co-operation of the judiciary and the executive. These are the regular agencies provided by the constitution for the execution of the laws. But the legislature is not restricted to these agencies. It may select or appoint others, as is often done, when the object of the law is to accomplish local or individual purposes. The agency generally employed for applying the legislative will and the power of the government to purposes. merely local has been that of county courts for counties, and of the trustees of towns or the municipal authorities of cities for towns or cities, which, to the extent of the powers permanently or temporarily vested in them, and whether allowed a discretion or not, do but carry into effect the legislative will and power. But these local agencies are selected, and some of them created, by the legislature itself, for the purpose of carrying its power into all parts of the commonwealth, or into such parts as require its application for their benefit or coercion. And the legislature may select other agencies for particular purposes, having in view, as it must be presumed to have, the nature of the object to be accomplished, and the fitness of the agency selected." It was said in People v. Draper, 15 N. Y. 543, that: "The people, in framing the constitution, committed to the legislature the whole law-making power of the state which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In |