Conley v. Commonwealth

• Decision Date: 12 October 1895
• Citation: 98 Ky. 125
• Parties: Conley v. Commonwealth.
• Court: Kentucky Court of Appeals

98 Ky. 125

Conley v. Commonwealth.

Court of Appeals of Kentucky.

October 12, 1895.

APPEAL FROM CARLISLE CIRCUIT COURT.

SAMUEL H. CROSSLAND FOR APPELLANT.

WM. J. HENDRICK, ATTORNEY-GENERAL, FOR APPELLEE.

JUDGE EASTIN DELIVERED THE OPINION OF THE COURT.

The appellant, Will Conley, was indicted by the grand jury of Carlisle county for willfully and maliciously disturbing, displacing and removing a rail and switch, the same being a fixture attached to the track of the Chicago, St. Louis & New Orleans railroad, which was at that time leased and operated by the Illinois Central Railroad Company, and whereby an engine and cars might have been upset and thrown from the track.

On the trial of the case in the circuit court the Commonwealth introduced two witnesses who testified that, between the hours of 9 and 10 o'clock, on the night of July 5, 1894, the night on which the offense is charged to have been committed, they were sitting near the switch which it is alleged was tampered with, and that they saw appellant come from the direction of his home, which is about one hundred and fifty feet distant, and go up to this switch, turn down the switch lights, which were set, unlock the switch and throw it open; that they went to appellant and told him to put it back and he did so; that he then started in the direction of his home, while they went together to the house of the depot agent, some four hundred yards away, and informed him of what had occurred; that they, together with the agent, then returned to the switch and found it again open and the light out, and that they then went together to the north end of the switch, which was nearly half a mile away, and found that switch thrown also and locked to the side track and the lights out.

Two of the witnesses for the Commonwealth state that appellant was drunk on the evening in question.

Appellant testified in his own behalf that he was very drunk; that if he was at the switch that night he did not then remember it, and had no recollection of having thrown it or of having had anything to do with it. Other witnesses prove that appellant was very drunk. Appellant also offered to prove by his father that he had a brother in the employ of the railroad company as a brakeman on one of its trains which was due to pass this point, at which the switch was thrown, between the hour at which the discovery was made and 1 o'clock the next morning, but the court refused to allow the testimony to go to the jury.

A demurrer to the indictment was filed by appellant and overruled by the court, to which he excepted. The case was heard under instructions from the court, and the jury found appellant guilty as charged in the indictment, and fixed his punishment at one year in the penitentiary. A motion for a new trial was made and various grounds in support thereof were filed, but the motion was overruled and this appeal was prosecuted.

Of the many alleged errors relied on for a reversal it is only necessary that we should notice those which will now be briefly considered.

The objection to the action of the circuit court in overruling the demurrer to the indictment is not well taken. No special defect in the indictment is pointed out, nor have we been able to detect any defect therein, and it seems to us to follow the language of the statute. But it is insisted that the statute creating the offense charged, and under which this indictment was framed, was unconstitutional and in conflict with that provision of the constitution of Kentucky which declares that "no law enacted by the General Assembly shall relate to more than one subject and that shall be expressed in the title." (Sec. 51.)

The statute on which this prosecution is based is section 807, sub-division 2, article 5, chapter 32 of the Kentucky Statutes. The general title of the chapter is "Corporations — Private." The title of article 5 of the chapter is "Railroads," and of sub-division 2 of the article is "General Provisions Concerning." In this chapter the legislature seems to have intended to bring together the statutory law pertaining to private corporations, and in the several articles into which the chapter is divided has treated first of the general provisions applicable to all private corporations, and then of banks, trust companies, insurance companies, railroads, bridge companies, building and loan associations, and then of religious, charitable and educational institutions.

Article 5 of the chapter is devoted exclusively to the subject of railroads, and fixes their rights, duties and liabilities under the title, as above said, of "Railroads."

The question is, does section 807 of the Statutes which declares the offense with which appellant is charged to be a felony, and which prescribes the penalty thereof, come within the inhibition of the constitution above referred to? We do not think it does.

In considering the question we must look to the purpose of the framers of our fundamental law in incorporating this provision into the constitution, and to the spirit of this provision. Many years ago it was determined and judicially declared by this court that the purpose of this provision of the constitution was to remedy the evils of a practice which had become prevalent of uniting in the same legislative act subjects which had no relation to each other, and of permitting amendments to a bill by which matters wholly distinct from it, and wholly unconnected with the subjects of which it treated, were introduced into it, and thereby an improper influence was brought to bear in its final passage; and with this view of the purpose of the constitutional provision under consideration this court said: "Such a construction should, therefore, be given to it as is necessary to render it effectual in accomplishing the object for which it was designed. But it should not be so construed as to restrict legislation to such an extent as to render different acts necessary where the whole subject matter is connected, and may be properly embraced in the same act." (Phillips v. Covington & Cincinnati Bridge Co., 2 Met., 220.)

Looking at this act, which makes it a penal offense to disturb or displace a rail or switch constituting a part of a railroad track, in the light of the decision quoted from, it is clear to us that the constitutional provision referred to is not violated by incorporating the act into a chapter of the statutes entitled "Corporations — Private," and in an article of that chapter entitled "Railroads." It introduces into the chapter nothing foreign to or disconnected from the subject expressed in the title.

The offense denounced is one that can be committed only against the property of railroad companies which are private corporations. It is for interfering with a species of property that belongs only to these corporations. This chapter regulates and prescribes all the rights and duties of railroad companies. It imposes many obligations on the corporations, and fixes the penalties for their violation. There is nothing,...