Rash v. Louisville & Jefferson County Metropolitan Sewer Dist.

• Decision Date: 21 January 1949
• Citation: 217 S.W.2d 232,309 Ky. 442
• Parties: RASH v. LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT et al.
• Court: Kentucky Court of Appeals

217 S.W.2d 232

309 Ky. 442

RASH v. LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT et al.

Court of Appeals of Kentucky

January 21, 1949

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Lawrence F. Speckman, Judge.

Suit by Dillmann A. Rash, etc., against Louisville & Jefferson County Metropolitan Sewer District and others, wherein constitutionality of an amendment to the statute under which defendant is functioning was challenged. From the judgment plaintiff appeals.

Affirmed in part and reversed in part.

James W. Stites and Doolan, Helm, Stites & Wood, all of Louisville, for appellant.

Gilbert Burnett, Director of Law, and John Moremen and Blakey Helm Asst. Directors of Law, all of Louisville, for appellees.

STANLEY Commissioner.

The suit challenges the constitutionality of an act of the General Assembly amending Chapter 76, Kentucky Revised Statutes, under which the appellee, Louisville and Jefferson County Metropolitan Sewer District, was established and is functioning.

The constitutionality of the statute, enacted in 1946, was declared in Veail v. Louisville & Jefferson County Metropolitan Sewer District, 303 Ky. 248, 197 S.W.2d 413. It has been before us for construction in several later cases. The question we have now is the constitutional validity of an amendment of that statute. Chapter 180, Acts of 1948.

The title of the Act is as follows: 'An Act relating to adequate sewer and drainage facilities in cities of the first class and in counties containing such cities, amending Section 76.060, Subsection (7) of Section 76.080, Subsection (10) of Section 76.080 of the Kentucky Revised Statutes, subsection (5) of Section 76.030 of Kentucky Revised Statutes and creating a new Section relating to such facilities towit: Number 76.091 Kentucky Revised Statutes.'

I. The appellant maintains the requirement of Section 51 of the Constitution that the subject of a legislative act shall be expressed in the title is violated. The argument is that the word 'adequate' in the title is deceptive and renders it an untrue index of the body of the Act as in Engle v Bonnie, 305 Ky. 850, 204 S.W.2d 963. It is submitted that the reader of the title would naturally and justifiably be led to understand that the Act dealt with increasing the sufficiency and usefulness of sewer and drainage facilities, while, as a matter of fact, the adequacy of those facilities is not the subject of the law. Strictly construed that is true. The use of the word 'adequate' was probably suggested or induced by the statement at the beginning of the original enabling act as to its purpose. The word seems to be mere surplusage, though if regarded as meaning efficient, it would not be inappropriate from the assumed viewpoint of the sponsors of the Act. We think the title is good.

II. We consider Sections 2 and 3 of the Act, which undertake to amend Subsections (7) and (10) of 76.080.

The Act publishes Subsection (7) as thereby amended as follows: '(7) To make bylaws and agreements for the management and regulation of its affairs and for the regulation of the use of property under its control and for the establishment and collection of sewer rates, rentals and charges, which sewer rates, rentals and charges, applicable within the limits of a city of the first class, shall be subject to the approval, supervision and control of the legislative body of such city as hereinafter provided.' The change is the addition of the clause beginning 'which sewer rates, rentals and charges'.

Subsection (10) as amended and published reads as follows: '(10) To fix and collect sewer rates, rentals, and other charges, for service rendered by the facilities of the district, which sewer rates, rentals, and other charges, applicable within the limits of a city of the first class, shall be subject to the approval, supervision and control of the legislative body of such city as hereinafter provided.' The change is the addition of the clause which likewise begins 'which sewer rates, rentals, and other charges'.

Section 51 of the Constitution is readily divisible. The first part confines an act of the General Assembly to one subject, which, as we have stated, must be expressed in the title. The second part reads: '* * * no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.'

In Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017, 1023, Judge Carroll, who was a distinguished member of the Constitutional Convention, in behalf of the Court, construed this part of Section 51 and set forth its specific application to various classes or kinds of legislative enactments. The following is of application here: '(b) That when it is proposed to revise or amend one or more sections of the Kentucky Statutes, or an act, the body of the new act should contain the section or sections as they will read when revised or amended, if it is proposed to re-enact or leave in force any part of the section or sections that are amended or revised. If, however, it is intended to repeal one or more sections, then it is not necessary to set forth in the body of the act the section or sections repealed.'

In Edrington v. Payne, 225 Ky. 86, 7 S.W.2d 827, it was held by a sharply divided court that this provision of the Constitution does not prohibit the amendment of a particular paragraph of a previous legislative act, which was ordinarily published as a separate section of the statutes, when the paragraph is republished as amended. One of the reasons assigned in the majority opinion was the repeated decisions of the Court that it was proper to amend any section of the Kentucky Statutes. The subsection of the Act had been in fact published as a separate section. It may be said that in the prospective application of that decision it was undoubtedly presupposed that the subsection of an act being amended is sufficient in and of itself so that it in fact constituted a law within the meaning of the terms of Section 51 of the Constitution, and that there would be the same self-sufficiency when so amended.

In the present case neither of the subsections of KRS 76.080 proposed to be amended or as amended conforms to Section 51 as interpreted in the Spencer and the Edrington cases. Before and after amendment each is incomplete both in grammatical construction and as a law. It has neither subject nor predicate and standing alone is meaningless. The insufficiency arises from the fact that that part of 76.080 which gives the two subsections meaning is omitted and is not published in the extensions. It reads: 'The district created under the provisions of this chapter is empowered'. Each of the following eleven subsections or paragraphs is dependent upon this statement. They constitute a list of the powers thereby conferred. It is, therefore, an integral part of each of them. Without its republication in the Act it was necessary that the members of the legislature resort to the statutes to ascertain its meaning. It was this situation that the constitutional provision was intended to avoid. This part of the bill is a very clear violation of Section 51 of the Constitution and must be declared invalid.

III. We consider Sections 1 and 4 of the Act, which are in the same category.

The title states that the Act amends Section 76.060 and Subsection (5) of 76.030. Each is republished as amended, and the Act conforms to Section 51 of the Constitution as interpreted in the Spencer and Edrington cases, supra. But we are of opinion that they violate other provisions of the Constitution. These grounds have not been raised by counsel. But having final authority to determine the constitutional validity of legislative acts, we are impelled by that responsibility to examine the Act for ourselves before declaring it valid.

(a) The original of KRS 76.060 sets forth the officers to be elected by the Board of the Metropolitan District and matters in relation to their services. It authorizes the Board to employ and remove 'professional and technical advisors, experts, and other employes, skilled or unskilled, as it deems requisite for the performance of its duties'. Section 1 of the present Act adds as an exception that the Board 'may not employ a lawyer or lawyers.' It declares that 'the director of law, otherwise city attorney, of each such city' and his staff shall 'render all legal services pertaining to the said city and county metropolitan sewer district and its board'. A provision is added that, 'if adverse legal positions arise as between such city on the one hand and such district and board on the other', the Board may employ lawyers 'upon such terms as the legislative body of such city may authorize by ordinance.' There is no antecedent for the words 'such city', but it may be presumed they refer to any city of the first class which, with the county, organizes a metropolitan sewer district under the enabling statute. In short, this amendment makes the Director of Law of Louisville the attorney for the District Board whose jurisdiction and powers extend over the whole of Jefferson County. In case of litigation with the city, the city may permit its adversary to employ lawyers subject to whatever terms the Aldermen may prescribe.

(b) The title states that the Act creates a new section relating to the sewer and drainage facilities of the District. Section 5 so enacted may be thus summarized: It vests in the legislative body of the city 'visitorial powers' over the District and its Board and over its 'business activities and affairs'. It authorizes the legislative body to inquire into...