Phillips v. Covington & C. Bridge Co.

• Decision Date: 13 July 1859
• Citation: 59 Ky. 219
• Parties: Phillips v. Covington and Cincinnati Bridge Company.
• Court: Kentucky Court of Appeals

59 Ky. 219

Phillips v. Covington and Cincinnati Bridge Company.

Court of Appeals of Kentucky.

July 13, 1859

APPEAL FROM KENTON CIRCUIT COURT.

1. By the first section of an act, entitled " An act to amend the charter of the Covington and Cincinnati Bridge Company," the capital stock of the company was increased to seven hundred thousand dollars, and by the second section power was conferred on the bridge company to sell, and on the city of Covington to subscribe, for one hundred thousand dollars of the capital stock of the company, and in payment thereof to sell the bonds of the city and levy a tax for the payment of interest on the bonds. Held--That the act is not in conflict with the 37th section of the 2d article of the constitution, which provides that no law shall relate to more than one subject, and that shall be expressed in the title.

2. The constitutional prohibition, supra, should receive a rational construction, and, looking to the evil intended to be remedied, it should be applied to such acts of the legislature alone as are obviously within its spirit and meaning. None of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foregn to the subject expressed in its title.

3. A subscriber to the stock of the Covington and Cincinnati bridge company made his subscription payable after four hundred thousand dollars shall have been subscribed. In determining whether this amount had been subscribed, the amount subscribed by the city of Covington, which was unconditional, is to be included, notwithstanding the subsequent payment thereof by bonds of the city at par when their market value was less than par. Stock subscribed by contractors, payable in services, and materials, estimated at their cash value, to be used in the construction of the bridge, must also be included; as also the subscription of a stockholder, one half of whose stock the company might, at its option, convert into bonds to be issued by it. The unpaid subscriptions of persons who were insolvent, or infants, or married women, at the time of making them, excluded from the computation.

Cambron & Fisk, for appellant, cited sec. 37, art. 2, Con. of Kentucky.

Kinkead & Carlisle, on same side, cited City Charter, art. 1; sec. 6; 2 Cranch, 167; 4 Wheat., 686; 4 Pet., 168; 13 Ib., 587; Ib 122; 12 Wheat., 68; 2 Kent, 298; sec. 37, art. 2, Con. Ky.; art. 118, Con. Louisiana; 5 La. An. Rep., 92, 95; 10 Ib 722; 9 Ib., 329, 350; 1 Selden, 285; 4 Ib., 241; 7 Maryland 151; 13 Texas, 345; 24 Barb., 199; 24 Conn. 159; 6 Cush., 50; 2 Denio, 303; 4 La. An. Rep., 298.

Benton & Nixon, on the same side, cited Angell & Ames on Cor., sec 146; 6 Pick., 23; Ib., 45; 9 Ib., 187, 196; 10 Ib., 142, 146; 2 Ib., 202; 3 Mass. 443; 6 Mon., 429; Sess Acts 1855-6, p. 315; art. 2, sec. 37, Con. Ky.; 7 Md. 161; 7 Texas, 184; 4 Geo., 26; 15 Ill. 20; 22 Barb., 634; 18 Geo., 65; 7 Ind. 681; 6 Ib., 31; 6 Cush., 50, 54.

Stevenson & Myers, for appellee, cited Acts to establish Civil Code and to adopt Rev. Stat.; sec. 6, art. 1, City Charter.

Menzie & Pryor, on the same side.

OPINION

SIMPSON CHIEF JUSTICE.

This action was brought against the appellant on an instrument of writing which was subscribed by him, and reads as follows, viz:

" We, the undersigned, hereby subscribe and promise to pay to the Covington and Cincinnati bridge company the respective amounts attached to our names, as a subscription for stock in said company, payments to be made at such times and in such amounts as shall be demanded by the directors of said company, provided no demand shall be made until after the sum of four hundred thousand dollars shall have been subscribed, including these of ours."

The defense to the action was, that the sum of four hundred thousand dollars in actual available stock had not been subscribed when the demand upon the defendant was made.

The company having recovered a judgment against the defendant, he has appealed to this court for its reversal.

The principal questions in the case relate to the validity of some of the subscription of stock which the jury were permitted by the court below to take into the estimate, in determining what amount of stock had been subscribed before the appellant was called upon for the payment of his subscription.

The city of Covington subscribed stock to the amount of one hundred thousand dollars. That subscription was objected to on the ground that the city had no authority to make it; but the objection was overruled, and the jury was instructed to regard it as a valid subscription.

In examining the validity of the subscription made by the city, we do not deem it necessary to decide whether it had the power under its charter to have made such a subscription, inasmuch as we are of the opinion that the power to do it was conferred on it by the act of the legislature of February, 1856, (1 vol. Session Acts 1855-6, p. 315), entitled " An act to amend the charter of the Covington and Cincinnati bridge company."

This act, it is argued, is unconstitutional, because, as it is contended, it is in violation of the 37th section of the 2d article of 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."

Conceding that this provision of the constitution is not merely directory, but that it prohibits the passage of any law which applies to more than one subject, and renders void so much thereof as does not relate to the subject expressed in the title, still the act in question does not, in our opinion, fall within that class of legislative acts which this constitutional provision was intended to prohibit.

A practice had become prevalent of uniting in the same act of the legislature subjects which had no relation to each other, and which were wholly dissimilar and unconnected. Hence it not unfrequently happened that the title of an act gave no indication whatever of some of the subjects to which its provisions related. And by permitting amendments to be made to a bill, by which distinct and unconnected matters might be introduced into and made a part of it, an improper influence was sometimes brought to aid in its final passage. To remedy this evil the constitutional provision under consideration was adopted. 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 act necessary where the whole subject-matter is connected, and may be properly embraced in the same act.

It is not necessary for the accomplishment of the purpose contemplated to go from one extreme to the other, nor would such a course be consistent with the intention of the framers of the constitution. This prohibition should receive a reasonable and not a technical construction; and looking to the evil intended to be remedied, it should be applied to such acts of the legislature alone as are obviously within its spirit and meaning. None of the provisions of a statute should be regarded as unconstitutional where they all relate directly or indirectly to the same subject, have a natural connection, and not foreign to the subject expressed in its title.

By the first section of the act under consideration, the capital stock of the company was increased to seven hundred thousand dollars. The second, and only...