Bosworth v. State University

• Decision Date: 27 October 1915
• Parties: BOSWORTH, AUDITOR, v. STATE UNIVERSITY ET AL.
• Court: Kentucky Court of Appeals

179 S.W. 403

166 Ky. 436

BOSWORTH, AUDITOR, v. STATE UNIVERSITY ET AL.

Court of Appeals of Kentucky.

October 27, 1915

Appeal from Circuit Court, Franklin County.

Application for mandamus by the State University and another against H M. Bosworth, Auditor, to compel payment of certain moneys. From a judgment granting the writ, the defendant appeals. Reversed.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for appellant.

J. R Bush, of Lexington, for appellees.

SETTLE J.

The appellee, State University, suing for the benefit of the Kentucky Agricultural Experiment Station, and the latter in its own behalf, by petition filed in the Franklin circuit court against the appellant, H. M. Bosworth, auditor of public accounts of Kentucky, prayed that that officer be required by writ of mandamus to issue his warrant on the treasurer of the state for the payment to appellees of $8,460.56, the amount alleged to be due the Agricultural Experiment Station for 1,435 analyses of food and drug products at $7.50 each, made by it under section 1905a, Kentucky Statutes, during the year 1914. The entire claim presented for the 1,435 analyses in question was $10,762.50, but, as $2,301.94 of the amount had been paid by the treasurer upon a warrant from the auditor, there remained unpaid the $8,460.56 mentioned, which the auditor refused to pay. It is alleged in the petition that it is the purpose of appellees to expend this $8,460.56 in constructing and equipping, on the State University grounds at Lexington, Ky. a cold storage plant and abattoir for the use of the Experiment Station, and that they had, in fact, contracted to have the work done at that price.

The auditor filed a general demurrer to the petition upon the grounds: (1) That the act under which the analyses were made by the Agricultural Experiment Station, or so much thereof as authorized the work and attempted to make an appropriation therefor, is unconstitutional, and therefore void; (2) that, if constitutional, the act does not authorize the use of the money claimed by appellees for the constructing or equipping of a cold storage plant or abattoir upon the University grounds or elsewhere. The circuit court overruled the demurrer, to which appellant excepted. He thereupon filed an answer, which, in addition to attacking the constitutionality of the act, and denying the right of appellees to expend the amount in controversy in constructing a cold storage plant and abattoir, denied the necessity for such plant or abattoir, and also denied the authority of appellees to construct it at all at the expense of the state, or that they had contracted to have the work done at the price of $8,460.56, or any other sum. The affirmative matter of the answer was controverted of record.

After the taking of depositions and submission of the case, the circuit court adjudged the appellees entitled to the relief prayed and granted the mandamus. The auditor complains of that judgment; hence this appeal.

Neither the demurrer nor answer makes any question as to the number of analyses made by the Agricultural Experiment Station, as to the correctness of the analyses or the competency of the persons by whom they were made. The paramount question to be determined is the one first presented by the demurrer and answer, viz.: Is the act, under which the amount in suit is claimed from the state, or so much thereof as seems to authorize the payment of the claim, constitutional? The act was passed by the General Assembly in 1908 (see Acts 1908, p. 10), and is contained in chapter 53a, § 1905a, Kentucky Statutes (Carroll's Edition 1915). It is entitled:

"An act for preventing the manufacture and sale of adulterated or misbranded foods, drugs, medicines and liquors, and providing penalties for violations thereof."

The one section of the act, 1905a, contains 14 subsections.

Subsection 8 makes it the duty of the director of the Kentucky Agricultural Experiment Station, or, under his direction, the head of the division of food inspection of the station, to make or cause to be made examinations of samples of food and drugs manufactured or on sale in this state at such time and place and to such extent as he may determine.

Subsection 9 requires him to make report as to adulterated or misbranded foods or drugs to certain officers named therein, for the prosecution of the person or persons guilty thereof.

Subsection 10 requires that he make an annual report to the Governor upon adulterated food or drug products, and for the submission of such annual reports to the General Assembly at its regular sessions, and, in addition, for the issue from time to time of bulletins giving the results of such inspections and analyses as are made by him.

Subsection 11, which is the one here particularly involved, provides:

"Said Experiment Station shall receive seven dollars and fifty cents ($7.50) for the analysis or examination of any sample of food or drug taken or submitted in accordance with this act, and expenses for procuring samples of food and drugs and in making inspections into the condition of and wholesomeness and purity of the food produced, manufactured or sold in food factories, grocery stores, bakeries, slaughtering houses, dairies, milk depots or creameries, and all other places where foods are produced, prepared, stored, kept or offered for sale; for studying the problems connected with the production, preparation and sale of foods; for expert witnesses attending grand juries and courts; clerk hire and all other expenses necessary for carrying out the provisions of this act: Provided, the total expense from all sources shall not exceed in any one year thirty thousand dollars ($30,000.00).

The board of control of said Experiment Station shall furnish to the auditor of public accounts an itemized statement of the expenditures of money under this act. The expenditures reported to the auditor shall be paid by the commonwealth to the treasurer of the Experiment Station upon the written request of the board of control of the said Experiment Station, and the auditor for the payment of the same is directed to draw his warrant upon the treasurer as in all other claims against the commonwealth."

It is insisted for appellant that subsection 11 of the act violates section 51 of the Constitution of the state, which provides:

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

In the numerous decisions of this court interpreting section 51, Constitution, and applying its provisions, the following general rules appear to have been announced: First, the general manner in which the subject of an act is to be accomplished need not be expressed in the title (Collins v. Henderson, 11 Bush, 75; Commonwealth v. Bailey, 81 Ky. 395); second, stating the subject-matter of the act, with unnecessary detail in the title, does not render the act unconstitutional (Allen v. Hall, 14 Bush, 85); third, if all the provisions of an act relating to the same subject are naturally connected, and are not foreign to the subject expressed in the title, it is sufficient ( Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276, 9 Ky. Law Rep. 635; Johnson v. City, 121 Ky. 594, 89 S.W. 672, 28 Ky. Law Rep. 569; Diamond v. Commonwealth, 124 Ky. 418, 99 S.W. 232, 30 Ky. Law Rep. 655; McGlone v. Womack, 129 Ky. 274, 111 S.W. 688, 33 Ky. Law Rep. 811, 17 L. R. A. (N. S.) 855; Mark v. Bloom, 141 Ky. 474, 133 S.W. 203; Commonwealth v. Starr, 160 Ky. 260, 169 S.W. 743); fourth, the title cannot be used to extend or restrain the provisions in the body of the act. It must be fairly expressive of the context in the body of the act, and is to be read in connection with it in determining the meaning of the act (Commonwealth v. Cain, 14 Bush, 525; Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181, 24 Ky. Law Rep. 2352; Joyce v. Woods, 78 Ky. 386; Wiemer v. Commissioner of Sinking Fund, 124 Ky. 377, 99 S.W. 242, 30 Ky. Law Rep. 523; Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623).

The meaning and object of section 51, Constitution, is thus well stated in Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623:

"The purpose of the constitutional provision was to enable persons reading the title of an act to get a general idea of what the act treated of or contained, and it has come to be a recognized legislative practice for members and others interested in legislation to read the title of acts and gather therefrom in a general way at least the subject-matter of the act, and under the authority of this constitutional provision members of the Legislature, as well as the public interested in legislation, have the right to rely on the title as indicating the subject-matter of the act and to assume that the act contains no legislation that is not embraced in a general way by the subject expressed in the title."

It is not to be overlooked that section 46, Constitution, declares that:

"Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each house."

And section 230 provides:

"No money shall be drawn from the state treasury, except in pursuance of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published annually."

Manifestly the $30,000 mentioned in section 11 of the act under consideration is an appropriation in the meaning of sections 46 and 230, Constitution, supra. The $7.50 allowed by the section as compensation for each analysis that may be made is only a means or scale by which it is to be ascertained when the limit of the annual appropriation...