Edrington v. Payne

7 S.W.2d 827, 225 Ky. 86, 1928 Ky. LEXIS 708

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 12, 1928
• Status: Published

Opinions

Opinion of the Court by

Commissioner Hobson—

Affirming.

On November 28, 1923, F. G-. Edrington and others filed a petition in the Hickman county court for the establishment of a drainage district on Obion creek and certain tributaries under the Drainage Act approved March 26, 1918 (Acts 1918, p. 192). Viewers were appointed, who reported to the court. Several petitions were filed for extending the district, and on these additional reports were filed, all of which were confirmed by the court. On February 7, 1927, the appraisers filed a report as provided in sections 16 and 17 of the act. On March 7,1927, J. H. Payne and others filed their exceptions and petition to dismiss the proceeding as to a large part of the district as provided by the act approved February 3, 1922, Acts 1922, p. 24. On the hearing of the case in the couhty court, the court sustained the petition and dismissed the proceeding as to part of the district. The applicants appealed to the circuit court, where a like judgment was rendered, and from this judgment they appeal to this court.

The first question made on the appeal is that the act of 1922 is unconstitutional under section 51 of the Constitution providing as follows:

“No law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length. ’ ’

The act of 1922 amends section 18 of the act of 1918 by reference to the title of that act and provides as follows :

“1. That section 18 of chapter 64 of the Acts of the General Assembly of 1918 be amended by adding at the end of the first paragraph thereof the following provision:

“ ‘Provided further, that after the report of the board of appraisers has been filed, if the owners of seventy-five per cent, of the land embraced in the said district or any part thereof which is practically separated from other portions of the district, file a petition in the court in which the proceeding is pending, stating that they desire to abandon the proposed improvement, the court shall dismiss the proceeding at the cost of the landowners,’ so that the first paragraph of said section when so amended shall read as follows:”

Here follows the first paragraph of section 18 as it read in the original act with the words above quoted added thereto at the end.

This is the whole act except an emergency clause. The whole of section 18 is not copied in the new act, but only the first paragraph of that section. The section is divided into two paragraphs. The first paragraph regulates the proceedings in the county court when exceptions are filed to the report of the appraisers. The second paragraph regulates appeals taken from the order of the county oourt in such cases, and gives the form of orders to be entered. See Acts of 1918, pp. 229-236. The question presented is, was it nesessary in the amending act to set out the whole of section 18, or was it sufficient to set out therein only the first paragraph of section 18? The Kentucky Statutes is a compilation of the laws*of the state divided into 137 chapters and about 5,000 sections. .By repeated decisions of this court, it has been held sufficient to amend any section of the Kentucky Statutes by giving its number and setting out the section as amended, although the effect of the amendment may be to repeal other provisions of the Kentucky Statutes or modify them. Ex Parte City of Paducah, 125 Ky. 510, 101 S. W. 898, 31 Ky. Law Rep. 170; Com. v. McNutt, 133 Ky. 707, 118 S. W. 978; State Board v. Combs, 193 Ky. 548, 237 S. W. 32; Morrison v. Com., 197 Ky. 108, 246 S. W. 128; Jefferson Co. v. Cole, 204 Ky. 27, 263 S. W. 1114.

In Commonwealth v. Burk’s Springs Distilling Co., 137 Ky. 224, 125 S. W. 306, an act amending section 1 of an act approved March 22, 1924, without setting out any other sections of the act, except section 1, to which certain words were added, was upheld. In re Barker, etc., 132 Ky. 220, 116 S. W. 686, 1176, the court had before it an act to amend and re-enact certain subsections of section 2380, Kentucky Statutes. These subsections were amended and set out at length, but no other provision of section 2380 was set out. The act was upheld. In Kentucky Heating Co. v. City of Louisville, 174 Ky. 144, 192 S. W. 4, the first section of the act of 1898 was amended without re-enacting the other sections of the act, and the amendment was sustained. By the act of 1920, subsection 1 of section 1137, Kentucky Statutes, was amended by reference to its title, without setting out in the amended act any part of the section, except subsection 1; the act was upheld. Kokas v. Com., 194 Ky. 44, 237 S. W. 1090. The above cases are in accord with the weight of authority under like constitutional provisions. In 25 R. C. L. p. 873, after reference to the minority rule, this is added:

“But a more reasonable construction is to the effect that these provisions only require that in any revising or amendatory act the new revised act or-the new amended section, and not the old act before its revision nor the old section before its amendment, shall be set forth and published at full length. And, if the section amended is set out in full, it is not required that the amendatory act state that certain words of a specific section are striken out and others inserted. Under a constitutional provision to the effect that the act amended, or the section of an act amended, shall be set forth in full as amended, where an act is amended by adding new sections and altering old ones, it is sufficient to set forth the amended together with the new sections, without setting forth the whole of the act amended; it is only when all the sections of an act are amended that the entire act as amended is required to be set out. ’ ’

To the same effect see 36 Cyc., pp. 1000-1060.

Under the Constitution, a statute may be amended by reference to its title only, but then “so much thereof as is revised or amended” must be re-enacted and published at length. The act of 1922 amends section 18 of the act of 1918 by reference to its title only. The question presented is, “was so much thereof as is revised or amended” re-enacted and published at length? The first paragraph of section 18 regulates proceedings in the county court when exceptions are filed to the appraisers’ report. The second paragraph regulates appeals from the judgment of the county court and gives the form of judgments to be entered. In this case there was no uncertainty whatever as to what was amended. All the act that was revised or amended is published at length. No part of the second paragraph of section 18 is revised or amended. The first paragraph of section 18 is the only part of the act which is revised or amended. If in writing section 18 the author had divided it into two parts as subsection 1 and subsection 2, then clearly under the decisions above referred to the amendment of subsection 1 could be made without setting out subsection 2. But the fact that the figures 1 and 2 were not set down on this act is not material when it is printed in two plain paragraphs, and the amendment clearly shows that it relates to the first paragraph, and all that is revised or amended is republished.

The act consists of 61 sections, and covers 98 pages of the printed acts. Many of the sections are divided into subsections. Section 18 might, like many of the other sections, have been divided into two subsections. The mere failure of the author to put the words “subsection a” before the first paragraphs, and the words “subsection b” before the second paragraph, as he did in a number of other sections, is not material, so long as what is amended is clearly identified and so much as is amended is re-enacted and set out at length.

It is only necessary under the express mandate of the 'Constitution that so much of the act as is revised or amended must be re-enacted or published at length. In every case the question is for the court under all the facts, whether so much of the act as is amended or revised is re-enacted and published at length; and, where the Constitution is in fact complied with, the act will be upheld. In this case, the second paragraph of section 18 was in no wise amended or revised. It related to appeals from the judgment of the county court, and gave the form of the judgment to be entered. To have copied all this in the amended act would have served no purpose. The members of the Legislature in voting on the amendment could in no wise have been influenced by this matter if inserted in the amendment, and the reader of the printed act would then have been none the wiser, for the amendment only related to the proceedings in the county court, and this was regulated by the first paragraph alone. The part of the act that was revised or amended was set out, and was as distinctly identified as it would have been if section 18 had been printed in subsections a and b instead of paragraphs 1 and 2. The Constitution provides how it may be amended. It may not be amended by the court. To hold that, where an act is amended by reference to its title only, it is insufficient to re-enact so much thereof as is revised or amended, and that the whole act must be re-enacted, is not to uphold, but to amend, the Constitution.

Although the title of the later act is simply an act to amend section 18 of the former act by reference to its title only, the amended act may set out only so much of the section as is revised or amended. It need not set out the whole of the section. In Walker v. Com., 192 Ky. 260, 232 S. W. 617, and Flynn v. Barnes, 156 Ky. 501, 161 S. W. 523, which it followed, no part of the old act was republished. The language of the court there was used of the facts then before the court.

It follows, therefore, that 75 per cent, of the landowners had authority to dismiss the proceedings when the report of the appraisers was filed and came before the county court for confirmation. It is true the original act allowed 30 days for the filing of exceptions to the viewers’ report. Where no exceptions were filed the viewers’ report became final. But the appraisers’ report did not become final until it was approved by the court, and until it was approved by the court 75 per cent, of the landowners had a right to file their petition as they did here. The transcript before us does not contain the appraisers’ report or the maps, surveys, and profiles upon which it was based. In the absence of a complete transcript, this court must presume that the missing parts of the record sustain the judgment of the court, and show that the part of the district named in the exceptions was “practically separated from the other portions of the district.” Both the county court and the circuit court, with the record before them, so found in substance.

The circuit court adjudged that “the levy or assessment heretofore made of 50’ cents per acre” be set aside, and that a proper assessment may be made on a proper taxation of the cost. Evidently the court used the words “levy or assessment” as synonymous, and the necessary meaning of the judgment is that a proper levy may be made on a proper taxation of the cost. The levy of 50 cents was really made to cover other things beside the cost, and this excessive levy was properly set aside, with directions to the board to make the proper levy. All other questions were reserved by the circuit court. No other questions are now decided.

Judgment affirmed.

The whole court sitting.