In re Barker

• Decision Date: 24 February 1909
• Citation: 132 Ky. 220,116 S.W. 686
• Parties: In re BARKER et al. [d]
• Court: Kentucky Court of Appeals

116 S.W. 686

132 Ky. 220

In re BARKER et al. ^[d]

Court of Appeals of Kentucky.

February 24, 1909

Appeal from Circuit Court, Union County.

"To be officially reported."

Petition by W. T. Barker and others to establish a drainage ditch. From a judgment of the circuit court, dismissing the petition, on appeal from a like judgment of the county court petitioners appeal. Reversed.

Drury &amp Drury, for appellants.

BARKER J.

The appellants, W. T. Barker and others, filed a petition in the Union county court for the purpose of establishing a drainage ditch through their lands by straightening, deepening, and cleaning Casey creek, under the provisions of section 2380 Ky. St. 1903. The petition was denied by the county judge and thereupon the petitioners appealed to the Union circuit court, where, likewise, their prayer was refused and their petition dismissed, from which they have appealed to this court.

The only question which is raised upon the record is the effect of an amending act, which became a law March 27, 1908, and the title to which is as follows: "An act to amend and re-enact subsections 1, 11, 16, 19, 20, 22, 23, 24, and 26 of section 2380 and subsections 4, 5, and 7 of section 2412a of the 1903 edition of Carroll's Kentucky Statutes, which relate to the drainage of lands in this commonwealth" (Sess. Acts 1908, p. 212, c. 73). Both the county judge and the circuit court were of opinion that this amending statute repealed subsection 2 of section 2380, Ky. St. 1903, and thereby made the whole act ineffectual for any purpose. It is clearly apparent that the Legislature did not intend to amend subsection 2 of section 2380 at all, but intended to amend and re-enact subsection 11. In the enrolled bill, which we have examined, the numerals are not used in the title, but "11" is written out in the English letters, so that there can be no mistake as to what was meant in the title. In the body of the amending act, subsection 2 of section 2380 is said to be amended and reenacted; but subsection 11 was meant, instead of subsection 2. This can be plainly seen by comparing the amendment with subsections 11 and 2 of section 2380, Ky. St. 1903. The amendment clearly applies and is entirely pertinent to subsection 11, but has no relation whatever to subsection 2.

Taking the title of the amended act into consideration, we have no doubt that the Legislature intended to amend and re-enact subsection 11 and not subsection 2 of section 2380, and that subsection 2 now remains in full force and effect, whereas subsection 11 is amended as...