Harrod v. The Latham Mercantile and Commercial Company

• Decision Date: 07 March 1908
• Docket Number: 15,427
• Citation: 95 P. 11,77 Kan. 466
• Parties: T. H. HARROD et al. v. THE LATHAM MERCANTILE AND COMMERCIAL COMPANY
• Court: Kansas Supreme Court

95 P. 11

77 Kan. 466

T. H. HARROD et al. v. THE LATHAM MERCANTILE AND COMMERCIAL COMPANY

No. 15,427

Supreme Court of Kansas

March 7, 1908

Decided January, 1908.

Error from Cowley district court; DAVID M. DALE, judge pro tem.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Title of an Act--Insurance. The title of chapter 93 of the Laws of 1871 (Gen. Stat. 1901 ch. 50) is sufficient to embrace the provisions contained in sections 18 and 23 of the act (Gen. Stat. 1901, §§ 3381, 3386), including the penalties prescribed therein.

2. CONSTITUTIONAL LAW -- Proceeds of Fines for Breach of Penal Law--Diversion from School Fund. The provision of section 22 (Gen. Stat. 1901, § 3385) of the act referred to that one-half of such penalty when collected shall be paid into the treasury for the use of the county, and the other half to the informer, is invalid, being in violation of section 6 of article 6 of the constitution. (Gen. Stat. 1901, § 182.)

3. CONSTITUTIONAL LAW -- Statutory Construction -- Part Invalid -- Separable Provisions. This invalid provision is not such an integral portion of the whole law as to be inseparable; the act provides proper means for collecting such penalties, which will be disposed of as the constitution directs, and this does not violate the legislative intent or impair the efficacy of the law.

4. REMEDIES--Damages Recoverable for Violation of Penal Statute--Insurance. The penalties above referred to are not so far exclusive as to preclude a party suffering loss from a violation of the statute from recovering damages from the wrong-doer. The decision of this court upon the former hearing is adhered to.

5. EVIDENCE -- Weight of Uncontradicted Testimony -- Question for the Jury. When the burden of proving the material averments of a petition is upon the plaintiff it cannot be determined, as a matter of law, that the jury are bound to accept the evidence as true, although not contradicted; the weight and sufficiency of testimony to prove a fact thus in issue is for the jury in the first instance, subject to the supervisory powers of the court to be exercised afterward, if found necessary.

W. P. Hackney, and J. T. Lafferty, for plaintiffs in error.

A. M. Jackson, and A. L. Noble, for defendant in. error.

OPINION

BENSON, J.:

In reviewing this case at a former hearing a judgment in favor of the plaintiff for nominal damages was reversed. ( Latham v. Harrod, 71 Kan. 565, 81 P. 214.) The second trial resulted in a judgment for the plaintiff for $ 2000. The defendants now bring the case here insisting that the statute relied upon for recovery is unconstitutional, and that in any event the facts do not warrant a recovery.

The validity of the statute was not challenged at the first hearing. It is claimed that the title of the act is not sufficient under section 16 of article 2 of the constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title." (Gen. Stat. 1901, § 134.) The title of this act is "An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein." The contention is that the provisions for penalties is not indicated in the title, and The State, ex rel., v. Bankers', etc., Association, 23 Kan. 499, is cited in support of that claim. In that. case the act was entitled an act to amend certain sections expressly named in the title, while the body of the statute contained a provision purporting to amend a different section, separate and independent from the subject specified. The title was restrictive, and could not be enlarged by interpretation. The distinction between broad and comprehensive titles and limited and restricted ones was carefully indicated, citing Bowman, et al., v. Cockrill, 6 Kan. 311, as illustrative of the rule applicable where the title is a comprehensive one. The title of the act under review in the case last cited was: "An act to provide for the assessment and collection of taxes," and was held to be broad enough to include a provision fixing a period of limitation for actions to recover land sold for taxes.

In Woodruff v. Baldwin, 23 Kan. 491, the article of the code of criminal procedure making provisions for the appointment of trustees for the estates of convicts was held to be embraced in the title: "An act to establish a code of criminal procedure." Mr. Justice Brewer said:

"Evidently the legislature intended by this title one whose scope was broad enough to include the article, and while there is a sense in which the article does not treat of criminal procedure, yet we must impute to the legislature an intent to use the title in a broader sense. . . . And while the constitutional provision is mandatory, yet it is to be liberally construed, and so as not to prevent or embarrass ordinary legislation." (Woodruff v. Baldwin, 23 Kan. 491, 494.)

It is not necessary that the title should be an abstract of the entire act, but it will be deemed sufficient if it fairly indicates, although in general terms, its scope and purpose. (Lynch v. Chase, 55 Kan. 367, 40 P. 666.) The provision of the constitution, while mandatory, must be applied in a fair and reasonable way; otherwise it would become the source of more injury than the ills it was designed to remedy. (City of Eureka v. Davis, 21 Kan. 578.) An examination of many of our general laws will show that the incorporation of penalties in acts having only a general and comprehensive title has been common practice in our legislation. The executor's act has such a general title, and yet it embraces an instance of embezzlement and provides punishment therefor. "An act in relation to marriage" is another example of this practice. "An act in relation to roads and highways" includes penalties for obstructing roads, defacing mile-stones, and the like. Whenever the penalty is fairly incidental to the regulation of the subject expressed it may properly be included in the act without special mention in the title. The act in question is to regulate insurance companies, and this suggests means to make the regulation effective. To regulate is to direct by rule or restriction; to govern. (Otto v. Hare, 64 Kan. 78, 67 P. 444.) Penalties are plainly incidental to such regulation. The following cases are illustrative of the scope of such a general title: In re Pinkney, Petitioner, 47 Kan. 89, 27 P. 179; La Harpe v. Gas Co., 69 Kan. 97, 76 P. 448; The State v. Thomas, 74 Kan. 360, 86 P. 499.

It is also insisted that the act is void because it allows the penalties to be diverted from the school fund, contrary to section 6 of article 6 of the constitution. (Gen. Stat. 1901, § 182.) This provision, although unconstitutional, does not make the law void; the obnoxious provision alone falls. It can be easily separated and the law enforced without it.

It was held in Hardy v. Kingman County, 65 Kan. 111, 68 P. 1078, that a similar provision was not such an integral portion of the whole law as to be inseparable from it, and might fall without destroying the remainder of the law. The general rule is that only the invalid parts of a statute are without legal efficacy. When, however, the void and valid parts are so connected in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature the whole will fail. (The State v. Smiley, 65 Kan. 240, 69 P. 199, 67 L. R. A. 903.) This statute provides proper means for collecting the penalties. It then provides for a disposition of such penalties contrary to the constitutional mandate. This provision being invalid, the fund will be disposed of as the constitution directs. This disposition in no manner violates the legislative intent, nor does it impair the efficacy of the law. The decision in A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, is easily distinguished. That action was brought by the informer to recover the penalties for his own use, and he necessarily failed. It was a direct attempt to enforce the void provision. So far as his interests were concerned, and so far as that provision was involved, the act was void, and it was so declared. The general language used must be interpreted to apply to the particular claim presented and the matters under consideration.

We conclude that the statute in question is not void for either of the reasons suggested. It is argued, however, that the construction put upon this law at the former hearing is erroneous in this: that the penalties prescribed for its violations are exclusive--that an individual suffering loss from any violation of its terms cannot recover damages therefor, and Jones v. Horn, 104 Mo.App. 705, 78 S.W. 638, is cited as sustaining that view. Some other authorities are also referred to holding that penalties imposed under various statutes are to be deemed exclusive of any other remedy. (Utley v. Hill, 155 Mo. 232, 55 S.W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 569; Mack, Appellant, v. Wright et al., 180 Pa. 472, 36 A. 913; Heeney v. Sprague, 11 R.I. 456, 23 Am. Rep. 502; Commonwealth v. Howes, 32 Mass. 231.) This court, however, adopted the contrary view, sustained by decisions in other states, and, as it was considered, by the better reasoning. The authorities do not appear to be in entire harmony on this subject:

"Two apparently inconsistent rules have been enunciated by the courts in deciding whether damage caused to an individual by the violation of a penal statute creating a new right or duty constitutes a civil cause of action in his favor, or whether the penal cause of action is exclusive. On the one hand it has been held that, as a general rule, the wrong-doer is liable in damages to a party injured by the violation of the...