Burton v. Monticello & Burnside Turnpike Co.

• Decision Date: 17 February 1915
• Citation: 162 Ky. 787,173 S.W. 144
• Parties: BURTON v. MONTICELLO & BURNSIDE TURNPIKE CO.
• Court: Kentucky Court of Appeals

173 S.W. 144

162 Ky. 787

BURTON v. MONTICELLO & BURNSIDE TURNPIKE CO.

Court of Appeals of Kentucky.

February 17, 1915

Appeal from Circuit Court, Wayne County.

Action by Charles H. Burton against the Monticello & Burnside Turnpike Company. From a judgment for defendant on demurrer plaintiff appeals. Affirmed.

Wesley & Brown, of Somerset, and J. M. Kennedy and Duncan & Bell all of Monticello, for appellant.

O. H Waddle & Son, of Somerset, and Harrison & Harrison, of Monticello, for appellee.

MILLER C.J.

The appellee, the Monticello & Burnside Turnpike Company, is a corporation created in 1881, by an act of the General Assembly, which authorized it to construct and maintain a turnpike road from Monticello, Ky. to Burnside, Ky. a distance of 20 miles. Said road was constructed and tollgates placed thereon at intervals of five miles, at which tolls were collected in accordance with schedules established by law. For several years before the institution of this action, the appellant, Burton, was engaged in operating and running stage coaches and other vehicles on appellee's road, on which he carried the United States mails, express, and passengers for hire. He paid the tolls upon his stage coaches, as the law prescribed, but under protest.

Between June 18, 1912, and January 31, 1914, appellant paid in tolls for the use of appellee's turnpike road the sum of $3,359.51, of which amount $1,939.09 represented tolls paid on automobiles. During the period mentioned, appellee's turnpike was less than ten feet wide; and, according to the allegations of the petition, it did not have a smooth roadbed, and was neither well ditched nor drained, as required by the act of 1912.

In March 1914, Burton brought this action to recover said sum of $3,359.51 from the turnpike company upon the ground that during said period between June 18, 1912, and January 31, 1914, said turnpike and each section thereof was less than ten feet wide; it did not have a smooth roadbed; and was neither well ditched nor well drained.

The trial court having sustained a demurrer to the petition, the plaintiff, Burton, appeals. Several grounds were relied upon to defeat the action; but, under our view of the case, it will be sufficient to consider the single question whether the act of 1912 violates section 51 of the Constitution of Kentucky. That section reads, in part, as follows:

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

The title of the act approved March 18, 1912, under which this suit was brought, reads as follows:

"An act defining public roads--providing for their establishment, regulation and construction and use and maintenance--creating the office of road engineer, and prescribing the duties thereof." Acts 1912, p. 309.

The first section of said act defines public roads as follows:

"All public roads on which the several county courts have heretofore appointed surveyors to work the same, and allotted hands therefor, which have not been vacated according to law, are hereby declared public roads, without regard to any informality in the orders of the county court by which they were established. A public road shall be deemed to include necessary culverts, sluices, drains, ditches, waterway, embankments, retaining walls, and all bridges having a span of five feet or less."

Sections 2 to 35, inclusive, of said act, relate to the construction, acquiring, management, and protection of the public roads of the county.

Section 36 reads as follows:

"No tolls other than for the maintenance of such road or bridge shall be charged or collected for traveling upon any of the public roads or over any of the public bridges of this state except those which are now collecting such tolls according to the laws of this state."

Sections 39 and 40, which relate to tolls to be collected for the use of turnpikes owned by individuals or corporations, and under which this action is brought, read as follows:

"On all turnpikes now owned, wholly or in part by individuals or corporations in this state, tolls not exceeding the following rates may be received in every section of five miles which has been completed, to wit: For a single horse, mare, gelding, mule or jennet, in addition, one cent, if the same be not hitched to any vehicle; for twenty sheep or hogs, five cents; and for twenty cattle, ten cents, and so on in proportion for a greater or less number; for a riding carriage, whether two or four wheeled, if the road be a macadamized road or a brick road or some other permanently improved road, ten cents; but if not macadamized or not a brick road or other permanently improved road, five cents; and for a cart or wagon, if the tires of the wheels are less than four inches wide, three cents for each animal drawing it; for automobiles, fifteen cents; and for motor cycles, ten cents; and for motor driven vehicles, fifteen cents. For a fractional part of a section, tolls may be received bearing the same proportion to the tolls for a full section that the said fractional part bears such full section: Provided, that when the toll from the fractional part would be less than one cent they may charge and receive one cent: Provided, further, that all coaches, carriages, vehicles and horses used by persons going to and from divine worship, funerals, schools and grist mills for the purpose of having grinding done, shall be exempt from tolls.

Sec. 40. The said tolls may be demanded and collected of every person passing the toll gate, whether he shall have traveled the whole or only a part of the section or fractional part: Provided, that the said toll road or turnpike shall be made so as to conform to the following specifications: All roads or turnpikes shall have a smooth roadbed of not less than ten feet in width; exclusive of ditches and shall be well side ditched and drained. All cross-drains shall be under-drained or riprapped when necessary. All running streams requiring bridges of fifty feet in length or less, and such others as the fiscal court of the county may direct, shall have a bridge or culvert across same sufficiently strong and sufficiently wide to insure safe passage to all kinds of vehicles: Provided, further, that no toll shall be collected unless such toll road or turnpike be constructed in accordance with this section."

Section 48 creates the office of county road engineer, while section 52 provides that the county road engineer "shall have general charge of all public roads and bridges within his county excepting turnpikes or bridges owned by or maintained wholly by some citizens or company."

All told, the act contains 97 sections; but, for the purposes of this case, it is unnecessary to give any further enumerations or provisions thereof, since the invalidity of sections 39 and 40, under which this suit is brought, is decisive of the case.

It will be remembered that the title of the act describes it as:

"An act defining public roads--providing for their establishment, regulation and construction and use and maintenance--creating the office of road engineer, and prescribing the duties thereof."

In short, the title speaks solely of public roads and county road engineers; it does not even refer to anything else.

While the many sections of the act which treat of public roads and county road engineers are germane to the subject-matter of the title, it is plain beyond question that sections 39 and 40, which relate to the collection of tolls upon turnpikes, individually owned, and prescribe the specifications for such turnpikes, have not the remotest connection with the subjects mentioned in the title of the act. There is not a word in the title from which any person could infer that the act contained the subject-matter of sections 39 and 40, relating to the construction of turnpikes owned by individuals and corporations, and the tolls to be charged for their use.

In Hyser v. Commonwealth, 116 Ky. 410, 76 S.W. 174, 25 Ky. Law Rep. 608, it was said:

"This court has repeatedly announced, in effect, that no provision of a statute, directly or indirectly relating to the subject expressed in the title, having a natural connection therewith, and not foreign to the same, should be deemed within the inhibition of section 51 of the Constitution."

This broad, liberal rule was approved in the early leading case of Phillips v. Covington & Cincinnati Bridge Co., 2 Metc. 219, and again in Collins v. Henderson, 11 Bush, 74; Hoke v. Commonwealth, 79 Ky. 567; Commonwealth v. Bailey, 81 Ky. 395; Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276, 9 Ky. Law Rep. 635; Conley v. Commonwealth, 98 Ky. 125, 32 S.W. 285, 17 Ky. Law Rep. 678; Eastern Kentucky Coal Lands Corporation v. Commonwealth, 127 Ky. 667, 106 S.W. 260, 32 Ky. Law Rep. 129; Id., 127 Ky. 667, 108 S.W. 1138.

In recognizing this rule, however, this court in Thompson v. Commonwealth, 159 Ky. 12, 166 S.W. 624, further said:

"But in no instance has this rule been extended so as to legalize legislation that departs so radically from the title of the act as do the sections here under consideration. Here the title of the act limited the scope of the

...