페이지 이미지
PDF
ePub

(192 Ky. 236)

(232 S.W.)

COMMONWEALTH v FLORENCE.

(Court of Appeals of Kentucky. June 25, 1921.)

1. Statutes 109-References to laws repealed are immaterial to validity, unless they restrict the general language of the title.

It is not essential that the title or body of new and independent act on any subject shall specify previous laws repealed, and such references in the title are not material to the validity of the act, unless they restrict or narrow the more general language of the title by confining it to a subdivision of general subject, or are misleading.

2. Statutes 161 (1)-New law on subject repeals by necessary implication previous laws.

A new law on a subject repeals by necessary implication previous laws on the subject, unless a contrary intention is shown.

3. Statutes 105(2) Constitutional provision as to title is mandatory.

Const. § 51, declaring that no law shall relate to more than one subject, which shall be expressed in the title, is mandatory. 4. Constitutional law 48-Acts can be declared unconstitutional only in plain cases. A statute should be construed so as to render it constitutional, instead of unconstitutional, and the courts will not declare an act unconstitutional unless it is plainly so, and in case of doubt will resolve in favor of its validity.

5. Statutes 64 (10)-Error in recitals in title as to acts repealed held not to invalidate school law.

While Const. § 51, declares that no law shall relate to more than one subject, and that must be expressed in its title, Sess. Acts 1920, c. 43, entitled "An act repealing Ky. St. § 4521a, etc., and enacting in lieu thereof new provision relating to compulsory attendance of pupil children," is not invalid because the act which professed to be repealed had been repealed, amended, and re-enacted by Acts 1916, c. 24, art. 16, § 213, etc., it appearing that the body of the act contained a comprehensive enactment on the compulsory attendance of school children, and hence, as the true title was expressed, the provision as to repeal might be disregarded as surplusage.

6. Statutes 47-Act relating to compulsory attendance of pupils not invalid because of ambiguity.

Sess. Acts 1920, c. 43, § 2, providing for compulsory attendance of school children, and providing that every parent, guardian, etc., having any children to be enrolled in and to attend regularly some school, is not invalid because by reason of the omission of a verb it was not stated whether the parent or guardian or the child should be enrolled, or because of the omission of other words limiting the age of children, for it is apparent that the statute applies to children only, and the omissions might be supplied from other sections.

7. Schools and school districts 160 - That compulsory attendance act transferred jurisdiction of offenses to circuit court without reference to subject held not to effect its validity.

Though Sess. Acts 1920, c. 43, providing for compulsory attendance of school children by prescribing the penalty for violation, automatically transferred jurisdiction of offenses to the circuit court from the inferior courts of the county, as under previous acts on the subject, without direct reference to the subject of jurisdiction, the act which not only did not profess to amend previous laws on the subject, but was enacted as a new and independent law covering the entire subject and repealing all inconsistent laws, was not thereby rendered invalid.

[blocks in formation]

CLARKE, J. The appellee was indicted for failing and refusing to send a child under his control to school, which is made a misdemeanor, punishable by a fine of not less than $5 by the terms of chapter 43 of the A demurrer was sus1920 Session Acts. tained to the indictment, and the commonwealth has appealed from the judgment that followed, dismissing same.

The indictment follows the language of the act, and it is therefore evident that the demurrer was sustained upon the theory that the act is invalid, and probably, as suggested in brief for appellant, none being filed for appellee, because of the belief (1) that the act is violative of section 51 of the Constitution, and (2) that section 2 of the act under which the prosecution is attempted is meaningless.. [1-5] Section 51 of the Constitution, in so far as it is involved, provides:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."

The title and the portions of the act di-
rectly involved read as follows:
"An act repealing subsection 1 of section four
thousand five hundred and twenty-one-a
(4521a). Kentucky Statutes, Carroll's Edi-
tion, one thousand nine hundred and fifteen,
being the same as section two hundred and
thirteen (213) of chapter seventeen (17) of
. the Common School Law of one thousand
nine hundred and eighteen, and also section
two hundred and sixteen (216) of the Com-
mon School Law, one thousand nine hundred

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-24

and eighteen, and enacting in lieu thereof volved was passed at the 1920 session of the new provisions relating to the compulsory Legislature. attendance of pupil children in the common schools of this state.

"Be it enacted by the General Assembly of

the commonwealth of Kentucky.

*

"2. Every parent, guardian or other person residing within the boundaries of any county school district and having the custody, control or supervision of any child or children (***) to be enrolled in and to attend regularly some common, private or parochial school each school year for the full term of such school, provided that in the case of a private or parochial school the term shall not be for a shorter period in each year than the term of the common school of the district of the child's or children's residence, and that the teacher or teachers and the course of study of such private or parochial school shall have been approved by the State Board of Education, and that reports of the attendance of all children enrolled in such private or parochial school shall be submitted by such private or parochial school in the same manner as required of common schools; and provided further, that the provisions of this section shall not apply to any child who is excused by the county board of education upon its being shown to the satisfaction of such board by certificate of the public health officer of the county that such child is not in proper mental or physical condition to attend school; and provided further, that the provisions of this section shall not apply to any child who has satisfactorily completed the full course of instruction offered by the public schools of the district where he re

sides.

"5. All acts or parts of acts inconsistent herewith are hereby repealed."

Subsection 1 of section 4521a, Kentucky Statutes, Carroll's Edition 1915, which the act by its title professes to repeal, had been theretofore repealed, amended, and re-enacted by section 213, article 16, of chapter 24 of the Acts of 1916, and very clearly this is one of the provisions referred to in the first part of the title, although the references thereto are inaccurate, in that section 213 mentioned is in article 16 of the School Law of 1916, instead of article 17 of the School Law of 1918. The title also professes to repeal section 216 of the Common School Law of 1918 when what must have been meant was section 216, article 16, chapter 24, of the Acts of 1916 after it had been amended by section 2 of chapter 82 of Acts of 1918, as can be ascertained by comparison of the new act with the provisions of preceding laws dealing with the subject-matter of the later act. Not only so, but the whole of section 4521a of Carroll's 1915 Edition of the statutes had been repealed, amended, and re-enacted by article 16 of chapter 24 of the Acts of 1916; and, as again amended by chapter 82 of the Acts of 1918, appeared in volume 3 of the Statutes as section 4526c (1-6), when the act here in

Hence it must be admitted that the title, in so far as it attempts to describe just what previous laws were to be repealed, was drawn with surprising lack of care and skill, but this not essential that either the title or the body of itself is not necessarily fatal, since it i of a new and independent act upon any subject shall 'specify previous laws that are repealed thereby. Such references in the title of an act are material to its validity only when they restrict or narrow the more general language of the title by confining it to a subdivision or department of a general subject or are misleading. Recent cases of that kind are South v. Fish, 181 Ky. 349, 205 S. W. 329; Commonwealth v. Moore, 187 Ky. 494, 219 S. W. 786; District Board of Tuberculosis Sanitorium Trustees Sanitorium Trustees for Fayette County, etc., Bradley, Mayor, etc., 188 Ky. 426, 222 S. W. 518; Thompkinsville Graded Common School v. Jackson et al., 189 Ky. 253, 224 S. W. 876.

The conditions, however, in the instant case are very different, and this act does not come within that rule. This act does not by its title profess to deal with the subject of compulsory attendance of children at school simply by repealing or amending certain sections of the existing law relating to that general subject, but does rather profess to repeal outright certain inaccurately described sections of previous statutes, and to enact (in lieu thereof) "new provisions relating to the compulsory attendance of pupil children in the common schools of this state."

It is at once apparent that the expressed purpose to enact new provisions relating to the whole of a general subject could not be restricted or confined to particular subdivisions of that subject by reason of the fact subdivisions of previous law were expressly repealed, since a new law upon a general subject repeals by necessary inference all previous laws upon that subject, unless a contrary intention is apparent. By the body of this act, the legislative intention of enacting a new, independent, and comprehensive law upon the subject of compulsory attendance of pupil children in the common schools of this state, as is stated in the title, rather than to amend previous laws, is so plain as to leave no room for doubt, as is also the legislative intent to repeal all sections and parts of sections inconsistent therewith, as is expressly stated by section 5 of the act. The body of the act deals comprehensively with the entire subject of compulsory attendance upon school; and that such was the purpose of the act is clearly set forth by the title, which is indefinite and inaccurate only in so far as it attempts to set out the former laws intended to be repealed thereby. However confusing and inaccurate the title may be in its attempt to specify the

that only the sections which refer to such

(232 S.W.)

existing laws to be repealed, the purpose is [ is surplusage, and that the act should not be clearly expressed of enacting entirely new declared unconstitutional because of its title. and independent legislation upon the whole [6] 2. The same want of skill and care as subject of compulsory attendance upon appears in the title reappears in section 2 schools, and this, and only this, the act does. of the act under which this prosecution is atThat such an act would of necessity repeal tempted, since there is no verb in the first all previous acts or parts of acts inconsist- half of the section, and, read literally and ent therewith, whether such an intention was by itself, it is not clear whether it means expressed in either the title or the body of that the parents or the children are required the act, is thoroughly established law. No to be enrolled in and attend regularly some one reading the title of the act could possibly school. Nor is the age of those required to athave been misled as to the legislative intent tend school fixed in this section, but neither of to enact new provisions relating to compul- these inaccuracies, plainly due to inadvertent sory attendance of pupil children in the com- omissions in copying the bill before it was mon schools of the state, for this is clearly offered or at some stage of its progress stated, and the fact that he might have been through the two houses of the General Asconfused as to just what laws would be re- sembly, is fatal, since both may be easily suppealed thereby in no wise affects the validity plied from a consideration of other sections of the act. of the act, so as to make this section intel

Section 51, like other provisions of the Con-ligible and a consistent part of the entire act. stitution, is mandatory, and may not be disregarded by the Legislature, but it is also universally recognized that a statute should be so construed as to render it constitutional instead of unconstitutional, if this can be done; and the courts will not declare an act unconstitutional unless it is plainly so, and in case of doubt will resolve the doubt in favor of its validity. Gardner v. Ray, 154 Ky. 509, 157 S. W. 1147; Flynn v. Barnes, 156 Ky. 498, 161 S. W. 523; Goodpaster, Treasurer, v. United States Mortgage Bond Co., 174 Ky. 284, 192 S. W. 35; Dwiggins Wire Fence Co. v. Patterson, 166 Ky. 278, 179 S. W. 224; Clay v. Dixie Fire Insurance Co., 168 Ky. 315, 181 S. W. 1123.

Section 51 of the Constitution only provides that the body of an act shall not relate to more than one subject, and that that subject shall be expressed in the title; and it is not infringed by an act which treats of a single subject if that subject is expressed in the title, even though there is a plurality of subjects expressed in the title, unless the title is thereby rendered misleading as to the purpose of the act, since the subject expressed in the title, and not embraced in the act, will be regarded as surplusage, 25 R. C. L. 863.

In Mt. Vernon-Woodberry Cotton Duck Co. v. Frankfort Marine Acc., etc., Ins. Co., 111 Md. 561, 75 Atl. 105, 134 Am. St. Rep. 636, it was held, under a similar constitutional provision, that if an act contains in its title a sufficient description of the subject of the act, its validity is not affected by the fact that it also proposes in its title to repeal and reenact, and does repeal and re-enact, an act the title of which was defective, nor is it dependent in any sense for its validity on the act so repealed and re-enacted. This is in substance the condition of the title here.

We are therefore of the opinion that the title of the act before us is not misleading because of the inaccurate and unnecessary attempt to state therein the previous enactments to be repealed, that so much thereof

Common sense makes it certain it was the children, and not their parents, guardians, and custodians, that were to be enrolled in and attend school; and section 2 refers to pupils in the school districts throughout the state, except in cities of the first, second, third, and fourth class, just as the third section refers to school children in such cities, and in precisely the same language, except that in section 2 there is omitted the words "between the ages of seven (7) and sixteen (16), shall cause such child or children," employed in section 3, at the place we have indicated above by the insertion of several asterisks. Supplying these words, at the point indicated in section 2, makes it sensible and in accord with the legislative purpose as expressed in section 3, and as indicated by other sections referring to both of these secdren are required to attend school, except untions as to the maximum age at which childer special conditions when between the ages of 14 and 16 years they are to be excused.

Our authority, as well as our duty, under such circumstances to supply words inadvertently omitted, but plainly indicated elsewhere in the act, to make it intelligible and save it from invalidity, is universally recognized. See 25 R. C. L. 978; Neutzel v. Ryans, 184 Ky. 292, 211 S. W. 852; Nichols v. Logan, 184 Ky. 711, 213 S. W. 181, and the many authorities there cited on this question.

[7] 3. Still another evidence of unskilled and careless preparation appears in the section of the act prescribing the penalty for violation thereof by custodians of children of the specified ages, which automatically and necessarily transfers the jurisdiction of such offenses to the circuit courts from the inferior court of the county, as under previous acts dealing with this subject, without direct reference to the subject of jurisdiction; but this cannot affect the validity of the act, which not only does not profess to amend previous laws on the main subject, but, on the other hand, is enacted as a new and independent law covering the entire subject, and expressly

repeals all existent laws or parts of laws in- stockholders, for each of its 250 shares of consistent therewith.

So far as we can discover, these are the only grounds upon which the act could be attacked, and, being of the opinion that none of them ought to be sustained, it results the court erred in sustaining the demurrer and dismissing the indictment.

Wherefore the judgment is reversed, and the cause remanded for further proceedings.

(192 Ky. 245)

BANK OF ALBANY et al. v. CITIZENS'
BANK OF ALBANY.

(Court of Appeals of Kentucky. June 24, 1921.)

capital stock, $100 on June 1, 1918, and $20 on December 1, 1918. The $20 per share aggregating $5,000 not having been paid, the Bank of Albany and its stockholders on June 5, 1919, instituted this action against the Citizens' Bank to recover the $5,000, less an admitted credit of $302.54.

The defendant by its answer admitted its liability for the amount claimed by plaintiff's, but pleaded as a set-off against same that plaintiffs were indebted to it under the thirteenth clause of the articles of consolidation in the sum of $4,001.49 for bad notes, and $23.39 for unpaid overdrafts of the Bank of Albany. Crediting the $5,000 due plaintiffs with the admitted credit of $302.54 and the two items claimed as set-off's leaves a balance of $672.58, and this amount the deBanks and banking 67-Provision of con- fendant tendered to plaintiffs in full settlesolidation agreement as to notes not collect-ment of the claim sued on. Plaintiffs reible by "due diligence" construed. fused the tender, and for reply denied that the defendant had exercised due or any diligence to collect the alleged bad notes and overdrafts, or was entitled to recover for same. The cause was submitted to the court without the intervention of a jury upon an agreed statement of facts. Judgment was rendered in favor of plaintiff's for $672.58, the amount due them after offsetting against their claim the amounts claimed by defendant, and plaintiffs have appealed.

Provisions of articles of consolidation of banks that any note or overdraft which could not be collected by "due diligence" should be paid by the constituent bank from which it came, and that any note not paid or renewed within six months from day of consolidation to the satisfaction of the consolidated bank, and any overdraft not provided for within such time should be deemed bad, held to mean that a constituent bank should pay the consolidated bank only such notes and overdrafts not paid or renewed within six months as could not in such time, or a reasonable time thereafter, be collected by exercise of such diligence as is usually employed under like circumstances by an ordinarily prudent banker to protect himself from loss, which means that he would sue or . not in each instance as the financial condition of the debtors demanded in the exercise of ordinary care; also held that such diligence on the part of the consolidated bank was not established by the mere showing that it notified the debtors, and called on them to renew or pay the notes.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Due Diligence.]

Appeal from Circuit Court, Clinton County. Action by the Bank of Albany and others against the Citizens' Bank of Albany. From an adverse judgment, plaintiff's appeal.

versed and remanded for new trial.

Re

E. Bertram, of Monticello, for appellants. Duncan & Bell, of Monticello, and S. G. Smith, of Albany, for appellee.

CLARKE, J. On June 1, 1918, the Bank of Albany and the Citizens' Bank of Albany were consolidated under the name of the latter, pursuant to a written agreement executed on May 6, 1918, in accordance with the provisions of section 555, Kentucky Statutes. By a separate agreement the new Citizens' Bank of Albany agreed to pay to the Bank of Albany, for the use and benefit of its

The thirteenth clause of the articles of consolidation, in so far as applicable, provides that:

"Any and all bad notes or overdrafts which cannot be collected by due diligence shall be paid by the constituent corporation from which same came and any note not paid or renewed within six months from the first day of June, 1918, to the satisfaction of the consolidated corporation shall be deemed a bad note, and any overdraft not provided for within six months as mentioned heretofore will be considered or deemed a bad overdraft."

Whether or not defendant was entitled to

credit for the asserted set-off for bad notes and overdrafts depends primarily, if not exclusively, upon the effect to be given to the words "due diligence," found in the abovequoted provision of the articles of consolida

tion. The agreed statement of facts discloses that the defendant "has since the consolidation notified all parties owing notes and overdrafts to the Bank of Albany to call and renew or pay same by either writing the parties letters or by calling on them in person," that defendant "has not instituted any legal or equitable proceedings to collect any of said notes or overdrafts," and that—

"None of the notes turned over to the defendant, Citizens' Bank of Albany, were indorsed on the back thereof, in writing or any paper attached thereto, and that each of the notes contains the provision, "That indorsers

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

waive demand, protest, notice of protest and I light of these facts. So construed, the due legal diligence to enforce collection,' and that diligence cannot be confined, as contended by some of said notes were past due at the time plaintiffs, to the six-month period between of delivery to the Citizens' Bank of Albany, June 1, and December 1, 1918, nor can it be and that some of said notes are not yet due." construed, as contended by defendant, to having no meaning or force whatever. The conclusion is unescapable, we think, that the

Plaintiffs contend that they are not liable as indorsers to defendant upon the uncol-parties intended, and the contract means, lected notes executed to the Bank of Albany, and that the due diligence of the contract imposed upon the defendant, as a condition precedent to any liability, the duty of suing promptly and before December 1, 1918, upon all bad notes, and of prosecuting to insolvency the makers thereof. As support for this contention we are referred only to cases decided by this court before the enactment of the Negotiable Instrument Law, when such a rule as to the liability of indorsers prevailed, but which was abrogated by the

enactment of that law.

Defendant contends that plaintiffs are liable as indorsers; that as a consequence the due diligence of the contract is merely the diligence required by the Negotiable Instrument Law (Laws 1904, c. 102) in force when the contract was made and ever since; and that even such diligence has been waived by plaintiffs by the terms of each of the notes. In our view neither of these contentions is sound, since the due diligence involved here is not that imposed by law and dependent upon the technical relationship of the parties to these uncollected notes, but is that provided for between the parties by contract.

The words "due diligence," as employed in the contract, were certainly intended by the

that the plaintiffs would pay to defendant all notes and overdrafts, not paid or renewed by December 1, 1918, that had not therefore and could not within a reasonable time thereafter be collected by the exercise of such diligence as is usually employed under like circumstances by an ordinarily prudent banker to protect himself from loss, which means, of course, that he would sue or not in each instance as the financial condition of the debtors demanded in the exercise of ordinary care. That defendant did not establish such diligence by proving simply that it notified the debtors and called upon them to renew or pay these notes is at once apparent, since that only proved that they were such notes as are called bad notes, but which plaintiffs agreed to pay only if they could not be collected by due diligence, or ordinary care.

Hence the court erred in allowing defendant to set off against plaintiffs' uncontested claim all unpaid notes without proof that they could not have been collected by the exercise of ordinary care, and especially is this true if, as seems to be the case, the $4,001.49 allowed defendant for uncollected notes included the $750 of notes which it is

stipulated were not even due at the time of

the trial.

For the reasons indicated, the judgment is reversed, and the cause remanded for a

new trial not inconsistent herewith.

parties to have some meaning and force. They cannot, of course, be construed to mean what they would have meant under the rule abrogated by the Negotiable Instrument Law as contended by plaintiffs; and to construe them to mean no more than the due diligence of that law, as defendant insists, would ascribe to them no meaning whatever, since it is agreed that legal diligence to enforce col- HINES, Director General of Railroads, v. COX. lection under that law was waived by the terms of the notes.

Not only so, but it is further agreed that some of the notes were past due at the time of the consolidation, and that some of them were not yet due when this suit was tried, yet all such notes were included in the provision of the contract for due diligence, and defendant could have done nothing looking to their collection so far as the due diligence of the Negotiable Instrument Law is concerned. The parties certainly had all of these facts in contemplation when they provided in their contract that bad notes were such as were not paid or renewed by December 1, 1918, and that plaintiffs would pay all such bad notes as could not be collected by due diligence. Hence we must construe the terms of the contract in the

(192 Ky. 94)

(Court of Appeals of Kentucky. June 21, 1921.)

I. Master and servant 215-Injuries from misjudging physical strength not actionable.

A servant, being the best judge of his own physical strength, has the duty not to overtax it, and if he misconceives the amount of strength required to accomplish a task, and overstrains himself, the master is not liable. 2. Master and servant 226(1)-Risk of master's negligence not assumed.

The servant never assumes risks growing out of the master's negligence, unless he knows of the failure of duty and consequent danger, or the failure of and the danger therefrom are so obvious that an ordinarily prudent person in his situation would have observed the one and appreciated the other.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« 이전계속 »