O'Donoghue v. Akin

• Decision Date: 23 June 1866
• Parties: O'Donoghue v. Akin.
• Court: Kentucky Court of Appeals

63 Ky. 478

O'Donoghue v. Akin.

Court of Appeals of Kentucky.

June 23, 1866

1. The 3d section of the act of 1856, " to prevent selling and using certain weapons," is unconstitutional, because the act includes two different subjects, and the subject of the 3d section is not expressed in the title. (2 Rev. Stat 509.)

2. The supplemental act of 1866 is not retroactive; but if it had been so, it should not be applied to a case occurring before its passage, because it partakes of the obnoxious spirit of all ex post facto legislation.

APPEAL FROM FRANKLIN CIRCUIT COURT.

J. L SCOTT, for appellant, cited 2 Rev. Stat., 509; Sess. Acts 1865, p. 6.

JNO. RODMAN on same side.

A. J JAMES, for appellee, cited Const. Ky., art. 3, sec. 37; 2 Met., 589; 4 Met., 293; 5 Mon., 133; 3 Call., 268; 4 Bl. Com., 312.

T. N. & D. W. LINDSEY, on same side, cited Myers' Sup., 681; 4 Met., 72; 3 Marsh., 489; Hard., 62; 4 Litt., 377; 10 B. Mon., 172; 3 Dall. 386; 7 Johns., 505; 2 Peters' App., 681; Brac., lib. 4, fol. 228; 2 Just., 292; 2 Mod., 310; 2 Lev., 227.

HARLAN & HARLAN, on same side, cited Rev. Stat., sec. 14, ch. 21; 5 B. Mon., 565; 2 Bouv. Law Dic., 475; 1 Kent's Com., 501; 3 Dall 397; 7 Johns, 494; 6 Bac. Abr., 370; Co. Litt., 360.

G. W. CRADDOCK on same side.

OPINION

ROBERTSON JUDGE.

Mary Ann O'Donoghue, on the 19th of January, 1866, brought this action against John Brent Akin for killing her husband unlawfully with a pistol in October, 1865.

The circuit court sustained a demurrer to the petition, and rendered judgment in bar of the action.

If, as the circuit court seemed to think, there was no law authorizing the appellant to recover damages for the imputed act, the judgment was right. And, in the opinion of this court, there was, when the homicide occurred, no such law. Right or wrong, it has been authoritatively adjudged by this court, as well as courts of other States, that the common law did not authorize such an action.

The only Kentucky statutes bearing on the question are an act of the 10th of March, 1856, entitled " An act to prevent selling and using certain weapons" (2d vol. Stanton's Rev. Stat., p. 509), and an act of January the 12th, 1866, entitled " An act to prevent the careless or wanton or malicious use of deadly weapons."

The act of 1856, so far as it might apply to this case, is unconstitutional, and therefore not law, because killing with a pistol is not embraced by either the title or titular subject of the act.

The first subject was the selling or using of weapons (not fire-arms) specified and enumerated, and the two first sections apply exclusively to that subject; and the third section embraces killing in " any other way" or by any other weapons, including, of course, fire-arms not specified and not included in the " certain weapons" contemplated by the title, but embracing a killing by fire-arms or poison or in any other mode.

The act, therefore, includes two distinct and different subjects; and the last subject, which alone would apply to this case, is not embraced by the title. And the supplemental enactment of 1866 is constructively a legislative recognition of this interpretation, for it would be useless and superfluous for any other purpose than to supply the constitutional defect in the misjoinder in the statute of 1856, and which, therefore, must be the presumed object of it.

Consequently, as hitherto adjudged by this court, so much of the 3d section of the act of 1856 as would apply to a killing with a pistol was forbidden by the Constitution, 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."

The statute of 1866 was enacted since the imputed homicide, and can not retroact so as to make the appellee civilly responsible for an act for which, when done, he was not liable to any...