Fidelity & Columbia Trust Co. v. Meek

• Decision Date: 30 April 1943
• Citation: 171 S.W.2d 41,294 Ky. 122
• Parties: FIDELITY & COLUMBIA TRUST CO. v. MEEK.
• Court: Kentucky Court of Appeals

171 S.W.2d 41

294 Ky. 122

FIDELITY & COLUMBIA TRUST CO. v. MEEK.

Court of Appeals of Kentucky

April 30, 1943

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; Gilbert Burnett, Judge.

Suit for a declaratory judgment between the Fidelity and Columbia Trust Company, trustee, and Howard Meek relating to the statutory authority of a trustee to invest funds of an estate in dividend-paying securities which would be regarded by prudent business men as safe investments. From an adverse judgment, the Fidelity and Columbia Trust Company, trustee appeals.

Judgment affirmed.

Bullitt & Middleton, William W. Crawford, and R. Lee Blackwell, all of Louisville, for appellant.

Allen McElwain, Dinning & Clarke, of Louisville, for appellee.

Robt. K. Cullen, of Elkhorn, Wis. (L. B. Alexander, of Paducah, S Y. Trimble, IV, of Hopkinsville, Harry B. Mackoy, of Cincinnati, Ohio, and Clinton M. Harbison, of Lexington, of counsel), amicus curiae.

STANLEY Commissioner.

The constitutional validity and general construction of the Kentucky Revised Statutes are before the court. These questions and one of particular interpretation are presented in a suit for a declaratory judgment relating to the statutory authority of a trustee to invest the funds of an estate in "dividend-paying securities which would be regarded by prudent business men as safe investments." The specific authority contained in the Kentucky Statutes, § 4706 (being Chap. 53, Acts of 1936, which was an amendment and re-enactment of previous acts containing the same authority, starting with Chapter 122 of the Acts of 1891, 1892, 1893) was omitted from the Kentucky Revised Statutes, enacted in 1942, as will be developed in the course of the opinion.

As is interestingly disclosed in the "Historical Introduction" to the 1936 edition of the Kentucky Statutes, prepared by Judge Richard P. Dietzman, the State has had a number of issues of Statutes under various names or designations. See, also, KRS 447.030. Some of them have been but compilations of the acts of the legislature. Pursuant to § 245 of the current constitution, upon its promulgation commissioners were appointed by the Governor "to revise the statute laws of the Commonwealth and prepare amendments thereto to the end that the statute laws shall conform to and effectuate this Constitution." Their work was laid before the General Assembly and a bill covering each subject of legislation was enacted separately. The first compilation of these acts in 1894 by private editors and publishers was under the style of "Kentucky Statutes" and from time to time new editions were published. These were currently adopted by the legislature with the provision that the books could be cited and referred to by their section numbers as being the law of the Commonwealth. It has also been provided that the effect of the adoption should not be construed to render valid any invalid section or part thereof or to affect any law in force and effect not included in the statutes. Chap. 154, Acts of 1928, § 2419a-3, Kentucky Statutes. The published statutes even though adopted by the legislature, being only a compilation of the acts, were but prima facie the law and receivable in evidence in judicial proceedings as such. Commonwealth v. Owensboro, F. of R. & G. R. R. Co., 95 Ky. 60, 23 S.W. 868; Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812. All previous editions of the statutes are yet receivable as evidence of the statute laws in force at the time of their publication. KRS 447.030.

In 1936 the legislature "directed, authorized and empowered" the Governor to appoint a committee, selected from a list submitted by the Board of Commissioners of the Kentucky State Bar, to be known as the Statute Committee. The lawyers then appointed and their successors named in the report to the legislature in January 1942, infra, have served during the six years without compensation save that which comes from public service faithfully and well performed. The Committee was directed to "revise, codify, annotate and publish the Statute laws of Kentucky" or provide that it be done under contract. The act declared that the completed statutes should be received in all the courts as prima facie evidence of the statutory law of Kentucky. A section of the act provided that the Committee should not alter the language or sense of any act of the General Assembly and that it should make reports to the Board of Commissioners of the Kentucky State Bar. Chapter 111, Acts of 1936. This act contemplated only a recodification or compilation, such as had existed since 1892, except that it should be officially published.

At its next regular session the Legislature amended that act so as to provide that the Statute Committee should submit a "definite plan" for revision and publication of the statutes. It eliminated the prohibition against changing the language, but reenacted the restriction against altering the sense of any act, and added that the Committee should make a report of its labors to the General Assembly "for its adoption or modification." Chapter 41, Acts of 1938. Thus, the Legislature was getting away from the idea of a mere compilation. It empowered the Committee to prepare and submit a complete revision, broader in its scope and more comprehensive in its purpose.

At its 1940 Session, at the instance of the Statute Committee, in order to simplify and clarify the statute laws, the Legislature repealed over 1,000 sections of the then current statutes as being "obsolete, unconstitutional, duplicating, redundant, or * * * repealed by implication." Chapter 191, Acts of 1940.

The Statute Committee made a report of its labor to the General Assembly at its 1942 Session. Ky. Revised Statutes, p. 11. It submitted a copy of a revision of the statutes, under the style "Bill to Revise the Kentucky Statutes," which had been prepared from all the enrolled bills enacted since 1873, when the General Statutes were adopted. The Committee recommended that the tendered bill be enacted into law. The report called attention to a section to the effect that the text of the Revised Statutes speaks for itself without reference to the language of any prior legislation except in instances of ambiguities and implied repeals. See KRS 446.130. The General Assembly unanimously enacted this volume under the following title:

"An Act revising the statute laws of the Commonwealth, enacting the revised statutes as the law of the Commonwealth, repealing all prior statute laws of a general and public nature, and prescribing the effective date of this Act."

The repealing paragraph of the act is as follows: "All statute laws of the Commonwealth of a general and public nature enacted prior to the present session of the General Assembly, except the Codes of Practice and such statute laws as are continued in force by express provision in the body of sections of the Kentucky Revised Statutes, are hereby repealed."

The act was approved by the Governor and became effective by its terms on October 1, 1942. Chapter 208, Acts of 1942.

The Kentucky Revised Statutes were, therefore, enacted as the law of the Commonwealth and not adopted as a compilation. The distinction is important. It is well drawn in brief filed herein by the members of the Statute Revision Commission and their editor-in-chief as amicicuriae, as follows:

"A compilation is merely an arrangement and classification of the legislation of a state in the exact form in which it was enacted, with no change in language. It is merely a bringing together in a convenient form of the various acts of legislation enacted over a period of time. It does not purport to restate the law or to be a substitute for prior laws. It does not require any legislative action in order to have the effect it is intended to have. It is not the law but merely evidence of the law. The various editions of Carroll's Statutes in use in Kentucky prior to 1942, and recognized as prima facie evidence of the law by legislative acts of recognition, were nothing more than compilations. A revision, on the other hand, contemplates a redrafting and simplification of the entire body of statute law. It involves the elimination of duplications, contradictions, obsolete and obsolescent provisions, redundant, tautological, prolix and verbose provisions. A revision is a complete restatement of the law. It requires enactment by the legislature in order to be effective and upon enactment it becomes the law itself, replacing all former statutes." See 59 C.J. 888; 25 R.C.L. 924.

The procedure in this revision of the statutes was patterned after that followed in enacting the General Statutes in 1873. That publication superseded the Revised Statutes which had gone into effect July 1, 1852. In Broaddus' Devisees v. Broaddus' Heirs, 73 Ky. 299, 10 Bush, 299, the court was confronted with conflicting provisions in the two publications. The bill enacting the General Statutes contained a provision repealing all repugnant statutes. The Court held "The General Statutes must be regarded as containing a complete system of laws" and that "it must be considered and treated as all the statute law on the subject indicated by the title." In Ward v Beale, 91 Ky. 60, 14 S.W. 967, where there was a difference in punctuation in an enrolled bill and in the General Statutes subsequently enacted, which imported a different meaning, the court held that the statute controlled. The same regard of finality and vitality was given the Revised Statutes enacted at the 1851-1852 session of the General Assembly following the adoption of the Constitution of 1850. Burke v. Layoff, 178 Ky. 588, 199 S.W. 775. See, also, Overfield v. Sutton, 58 Ky. 621, 1 Metc. 621; Allen v. Ramsey's Heirs, 58 Ky. 635,...