Cashin v. State Highway Commission
| Decision Date | 10 June 1933 |
| Docket Number | 30877. |
| Parties | CASHIN v. STATE HIGHWAY COMMISSION. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Statute defining liability of certain persons for negligence in operating motor vehicles held unconstitutional because so disconnected from remainder of statute, relating to licensing of motor vehicle operators and chauffeurs, as to constitute separate subject (Rev. St. Supp. 1931, 8-223; Const. art. 2 § 16).
Unconstitutional portion of statute does not render remainder void where unconstitutional portion is wholly independent of remainder and furnished no special inducement for passage thereof.
Unconstitutionality of portion of statute defining liability of certain persons for negligence in operating motor vehicles held not to render remainder of statute, relating to licensing of motor vehicle operators and chauffeurs, unconstitutional (Rev. St. Supp 1931, 8-223).
1. Section 23 of chapter 80, Laws of 1931, which is R. S. 1931 Supp. 8-223, is unconstitutional and void as being in violation of the first portion of section 16, article 2, of the Constitution of the state of Kansas, because the act contains more than one subject, but its unconstitutionality does not affect the validity or constitutionality of the remainder of the act.
2. One portion of a statute may be unconstitutional and void and the remainder of it be upheld as constitutional and valid, if the unconstitutional portion is severable and wholly independent of the remainder of the act and furnished no special inducement for the passage of the rest of the act, where a presumption is reasonably justified that the Legislature would have passed the remainder of the act without the invalid portion.
Appeal from District Court, Wyandotte County, Division No. 2; Clyde C. Glandon, Judge.
On rehearing.
Judgment reversed, and cause remanded, with instructions.
For former opinion of affirmance, see 136 Kan. 659, 17 P.2d 838.
Wint Smith, Asst. Atty. Gen., and Otho W. Lomax, H. E. Martz Edward F. Arn, and Gale Moss, all of Topeka, and C. Clyde Myers, of Kansas City, for appellant.
A. J Herrod, of Kansas City, for appellee.
This case is now before us on rehearing, the original opinion having been filed January 7, 1933 (Cashin v. State Highway Comm., 136 Kan. 659, 17 P.2d 838). It is an action to recover damages under the provisions of R. S. 1931 Supp. 8-223, or section 23, chapter 80, Laws of 1931, from the state highway commission for personal injury sustained by plaintiff while in the employ of the commission working on the highway, by reason of the negligence of the defendant and one Rollo, employed as chauffeur by the commission.
The petition is set out in the original opinion. The demurrer of the defendant to the petition was overruled by the trial court, and the defendant appealed to this court, where the ruling of the trial court was affirmed in the opinion handed down and published as above stated. Because the enactment of the statute on which this claim is based was recent and far reaching in its effect, a rehearing was granted, and the matters involved have been thoroughly briefed on both sides.
In the hearing on appeal only one question was presented and considered, and that was whether the common-law fellow-servant rule had been abrogated by the statute above cited. This court in affirming the ruling of the trial court in overruling the demurrer to the petition held, as the trial court had done, that the statute cited had abrogated the common-law fellow-servant doctrine, and that the employer was jointly and severally liable with the negligent employee for the injury of the plaintiff, a fellow servant.
On the rehearing the appellant has brought to this court three additional questions of law bearing upon the contention of the commission that the demurrer to the petition should have been sustained. One of the three is that the statute above cited is unconstitutional, as being in violation of the first portion of section 16, article 2, of the Constitution of the state of Kansas, which is: "No bill shall contain more than one subject, which shall be clearly expressed in its title. ***"
The following is the title of the act, chapter 80, Session Laws of 1931: "An act relating to motor vehicles, providing for licensing motor vehicle operators and chauffeurs, defining the liability of certain persons for negligence in the operation of motor vehicles on the public highways, and to make uniform the law relating thereto." There appears to be two subjects clearly expressed in this title, the licensing of operators and chauffeurs of motor vehicles, and defining the liability of certain persons for negligence. If the second part had been defining the liability of operators and chauffeurs for negligence, instead of "certain persons," it would have afforded a natural relation to the licensing of operators and chauffeurs, but, without regard to whom the certain persons may be, they of course are not operators or chauffeurs, when pains were evidently taken to so describe them, and the language itself of the title almost compels one to conclude that the matters referred to therein are incongruous and disconnected. But it has been regularly held that whether or not a statute contains more than one subject is to be determined from the body of the act rather than from the title itself. 59 C. J. 802.
A careful reading of the entire act indicates that every section of it, except section 23, relates to the licensing of motor vehicle operators and chauffeurs and the punishment for the violation of the provisions of the act and the liability of such operators and chauffeurs and owners of motor vehicles furnished to minors or unlicensed operators and chauffeurs, all of which features and provisions are related and germane to the subject of licensing motor vehicle operators and chauffeurs. Section 23 does what the second part of the title indicates by defining the liability of certain persons for negligence in the operating of motor vehicles on the public highways. It is as follows: "This state and every c9ounty, city, municipal or other public corporation within this state, employing any operator or chauffeur, shall be jointly and severally liable with such operator or chauffeur for any damages caused by the negligence of the latter while driving a motor vehicle upon a highway in the course of his employment: Provided, This section shall not apply to boards of education, fire or police departments."
The certain persons mentioned in the title appear from this section to be "this state and every county, city, municipal or other public corporation." It will be readily noticed that under the provisions of this section there is no distinction or difference as to the liability whether the operators and chauffeurs are licensed or not. It is not connected up in any way with the licensing of operators and chauffeurs. It appears to be wholly incongruous with, independent of, and disconnected with the rest of the act, and constitutes a separate subject, thus making the act contain more than one subject.
We recognize that the liberal rule of construction so as to uphold, if possible, the constitutionality of an act has always been in force in this state.
"When a statute is attacked as being in violation of section 16 of article 2 of the Constitution for the reason that it is not within the title of the act, such title will be liberally interpreted for the purpose of upholding the law." State v. Topeka Club. 82 Kan. 756, 109 P. 183, 29 L.R.A. (N. S.) 722, 20 Ann.Cas. 320.
But this section of the Constitution has likewise been held to be mandatory instead of directory, and, if the act is clearly in violation of this constitutional requirement, it is the duty of the court to hold it unconstitutional.
"The constitutional provision that 'No bill shall contain more than one subject, which shall be clearly expressed in its title,' is mandatory; and if the legislature should clearly violate this provision by putting something in the body of an act clearly not embraced in the title thereof, or wholly foreign to the title, it would be the duty of the courts to declare such portion of the act...
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