Bowman v. Hamlett

• Decision Date: 26 May 1914
• Citation: 166 S.W. 1008,159 Ky. 184
• Parties: BOWMAN v. HAMLETT ET AL.
• Court: Kentucky Court of Appeals

166 S.W. 1008

159 Ky. 184

BOWMAN v. HAMLETT ET AL.

Court of Appeals of Kentucky.

May 26, 1914

Appeal from Circuit Court, Franklin County.

Action by Andrew Bowman against Barksdale Hamlett and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Hazelrigg & Hazelrigg, of Frankfort, and A. J. Carroll, of Louisville for appellant.

Arthur M. Rutledge, of Louisville, for Board of Education, on appellant's side.

Jas Garnett, Atty. Gen., Chas. H. Morris, Asst. Atty. Gen., and Jno. C. Duffy, of Hopkinsville, for appellees.

HANNAH J.

Andrew Bowman instituted this action in the Franklin circuit court against the superintendent of public instruction and the Attorney General; the purpose being to test the constitutionality and to obtain an interpretation of the act of March 9, 1914, commonly known as the School Text-Book Commission Law. The lower court sustained a demurrer to the petition, and, from the judgment dismissing it, plaintiff appeals.

We find in the brief of the Attorney General that the lower court, in passing upon the questions submitted, delivered the following opinion: "This cause arises upon petition of plaintiff asking that the School Text-Book Commission Act of 1914 be declared void because it is in contravention of section 51 of the Constitution, and further, because it is so contradictory as to make it impossible of execution. This court can agree with neither position of plaintiff. The title of the act relates to only one subject, viz., the establishment of the state text-book commission, to secure, for the benefit of the patrons of common schools, uniformity in series and price of such books. The last lines of the title, in these words 'and repealing chapter 13, etc.,' have in reality no relation to the title and in no sense can be considered except as surplusage. The inconsistencies complained of are capable of reconciliation by simply seeking the legislative intent, and that was to establish this Commission for the benefit of the schoolchild, and not for the benefit of book concerns or retail dealers. When the act undertook to say that the retail dealer should have 15 per cent. commission and in the same breath says that the books shall be sold as cheaply as elsewhere, then manifestly the commission must be less than 15 per cent., if the price is to be met only in that way. The complaining of section 8 in the act is perhaps more serious, and the difficulty is solved by striking out section 8, thus leaving the act as was evidently intended. For these reasons the demurrer of defendant is sustained, and the judgment herewith inclosed ordered entered."

This opinion is not copied in the record, and is no part of the judgment. It is conceded by appellant that this is the view which was entertained by the lower court, and which actuated said court in rendering the judgment appealed from. With this opinion we do not fully concur.

For a number of years prior to 1910, the books used in the common schools of this state were selected by the county judge, the county attorney, and the county superintendent of schools of each county. This manner of selecting the text-books of the schools of the state never seemed to be satisfactory, and the Legislature of 1910 attempted to improve conditions by the enactment of chapter 13 of the Acts of 1910, approved March 15, 1910, which provided for the creation of a county text-book commission in each county, consisting of the county superintendent of schools, two members of the board of examiners, the principal of a high school in the county, and one member of the county board of education. These commissions were authorized to adopt a uniform series of text-books for use in their respective counties, but under this act each county in the state could have a different series of text-books. While this method was probably an improvement upon the former plan, there seems to have been a demand for further improvement and for a more general uniformity or an entire state-wide uniformity in text-books.

The act referred to (chapter 13 of the Acts of 1910) expressly provided that the boards of education in cities of the first, second, third, fourth, fifth, and sixth classes should constitute the text-book commission for such cities, and, as such, its powers and duties should be identical with those provided by law for county text-book commissions. It was with the law in this condition that the Legislature of 1914 enacted the act of March 9, 1914, here in question.

1. It is the first contention of appellant that the act violates section 51 of the Constitution and is therefore void, for the reason that the title is in direct conflict with the body of the act.

The title of the act is as follows: "An act creating a state text-book commission to adopt for use in the common schools of Kentucky a uniform series of text-books, regulating the price thereof, defining the powers and duties of said commission and the method of selection of such text-books, and their distribution, prescribing penalties for the violation of this act, and repealing chapter 13 of the acts of the General Assembly of Kentucky, approved March 15, 1910."

Section 7 contains the following language: "It shall be the duty of the said commission in the years in which existing contracts expire, by a majority vote of the entire commission, to adopt from the authorized state list of books submitted, a uniform series or system of text-books for use in the common schools and the high schools of the state, except in cities of the first, second, third and fourth classes."

Section 8 of the act is as follows: "The provisions of this act shall not apply to boards of education in cities of the first, second, third and fourth class; but the act of 1910 regarding cities of the first, third and fourth class, and the act of 1912 regarding cities of the second class shall be and remain in force unaffected by this act."

It will thus be seen that the title states that chapter 13 of the Acts of 1910 is repealed, while in the body of the act, in section 8, it is provided that that chapter shall remain in force as to cities of the first, third, and fourth classes.

Appellees argue that the act would be rendered harmonious in all its parts by striking out section 8 and that portion of section 7 which refers to cities of the first, second, third, and fourth classes, leaving the remainder of the act in complete harmony and constitutional in every respect, and that this should be done. But, under the rule that the constitutionality of an act must be sustained, if possible, without doing violence to the manifest legislative purpose (which rule applies with like force to all the parts of the act), and the rule that conflicting provisions of the act should be reconciled, if possible, without disregarding the intent of the Legislature, section 8 and that portion of section 7 mentioned should be permitted to remain, if that can be done.

Section 51 of the Constitution provides that no law enacted by the General Assembly shall relate to more than one subject, and that that subject shall be expressed in the title. This section of the Constitution has always been liberally construed; all doubts being resolved in favor of the validity of the legislative action. The purpose of this constitutional provision is the prevention of surreptitious legislation; as said in Cooley on Constitutional Limitations: "To prevent surprise or fraud upon the Legislature by means of provisions in bills, of which the titles gave no intimation, and which might, therefore, be overlooked and carelessly or unintentionally adopted." So, having in mind the purpose of this provision and the evil against which it is aimed, before any act of the General Assembly should be nullified by this court, upon the ground that the subject of the act is not expressed in the title by reason of a variance between the title and the body of the act, it should be made to appear, and the court should be satisfied, that the variance complained of is such as to bring it within the range of the evils sought to be guarded against, and such as to justify its condemnation upon that ground alone. There is no such variance here. A casual reading of the title of this act could have mislead no one, for, even if interested in the subject, it would have been necessary for such person to have learned what chapter 13 of the Acts of 1910 contained before he would understand the effect of the part of the title which states that chapter 13 of the Acts of 1910 is repealed; and any one interested to that extent would also be sufficiently interested to read the body of the act itself.

Section 51 of the Constitution requires that the title shall express the subject legislated upon; but there is no requirement that the title of an act shall also undertake to state what former acts are thereby repealed. Such a requirement would not only be unreasonable; it would be impracticable; and it would lay upon the Legislature the duty of weighing the legal effect of prior legislation and determining just what legislation is repealed by the act proposed.

The title of the act in question fully expresses the subject of the act, excluding that part of the title which states that chapter 13 of the Acts of 1910 is repealed; and, it being unnecessary that the title of the act should state what former legislation is thereby repealed, that part of the title which states that chapter 13 of the Acts of 1910 is repealed is surplusage and may be disregarded.

Where the variance between title and body is not such as to create a strong inference that it has resulted in the enactment of legislation under misapprehension by the Legislature, and where the surplusage or apparent error in the title of the act is in...