South v. Fish

• Decision Date: 20 September 1918
• Parties: SOUTH ET AL. v. FISH ET AL.
• Court: Kentucky Court of Appeals

205 S.W. 329

181 Ky. 349

SOUTH ET AL. v. FISH ET AL.

Court of Appeals of Kentucky.

September 20, 1918

Action by John G. South and others against C. A. Fish and others. On defendants' motion to dissolve injunction. Motion overruled.

Elwood Hamilton, of Frankfort, C. U. McElroy, of Bowling Green Stanley E. Sloss, of Louisville, Scott & Hamilton, of Frankfort, Wright & McElroy, of Bowling Green, and Bingham Sloss, Tabb & Mann, of Louisville, for plaintiffs.

Baird &amp Richardson, of Glasgow, T. W. & R. C. P. Thomas, of Bowling Green, Chas. H. Morris, Atty. Gen., Thomas W. Thomas, of Bowling Green, Basil Richardson, of Glasgow, and Eli H Brown, Jr., of Frankfort, for defendants.

MILLER J.

This is a contest between the old state board of health appointed under section 2047 of the Kentucky Statutes and the new state board of health, appointed under the act of 1918 (Acts 1918, p. 290). The plaintiffs are those members of the old board who would be ousted from office if the appointments of the defendants were authorized by the new act; the defendants include all the appointees under the new act, including four who were members of the old board and were appointed members of the new board under the compulsory provisions of the new act, and claim to constitute the legally authorized state board of health.

This action was instituted by the members of the old state board of health, contending that subsection 20 of section 2061 of the Kentucky Statutes, as amended by the new act of 1918, under which defendants are claiming to operate, is unconstitutional, and they asked that the defendants who constitute the new state board of health be enjoined from ousting or attempting to oust the plaintiffs from their offices, and from interfering or attempting to interfere with the plaintiffs, or their employés, in the performance of their public duties, and from interfering with the enforcement and execution of the health laws by the old state board of health. The circuit court granted the injunction, and the defendants are now asking that it be dissolved.

Referring briefly to the history of the legislation in the state upon this subject, it appears that in 1878 the state board of health was created by an act of the Legislature which, with some modifications, has continued in force ever since, and is now embraced in sections 2047 to 2062b, inclusive, of the Kentucky Statutes, and constitutes a part of chapter 63 of that compilation. Referring to the provisions of those sections of the statute, it will be seen that section 2047 creates the board of health, and prescribes the qualifications of its members, and section 2048 fixes the term of the members, and provides for the filling of vacancies. Section 2049 prescribes the duties of the members, while section 2050 provides for meetings and the making of rules and by-laws. Section 2051 provides compensation for certain services, and sections 2052 and 2055 relate to the secretary, his duties, term of office, salary, etc. Sections 2054, 2059, 2060, and 2061, which are the sections amended by the act of 1918 will be considered later. Section 2055 relates to county boards, while section 2056 relates to quarantines. Section 2057 prescribes the powers and duties of the board with reference to certain kinds of nuisances, section 2058 relates to the duties of county attorneys, section 2062 to the prevention of yellow fever, section 2062a to vital statistics, and 2062b to trachoma and ophthalmia. These sections, with sections 2054, 2059, 2060 and 2061, which are amended by the act of 1918, provide a complete system of law upon the subject of the public health.

The act of 1918 purports, on its face, to be an amendment to sections 2054, 2059, 2060, and 2061, and the plaintiffs concede that, with the exception of subsection 20 of the amendment to section 2061, it is complete and amendatory of the four sections named, and that all of the parts of the amendatory act, with the exception of subsection 20 of the amendment to section 2061, are germane to and are covered by the title of the new act. But plaintiffs contend that subsection 20 of the amendment of 1918 to section 2061 of the Kentucky Statutes is void, because it contravenes section 51 of the Constitution, which reads as follows:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and 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."

The title to the amendatory act of 1918 reads as follows:

"An act relating to public health, repealing, amending and re-enacting sections 2054, 2059, 2060 and 2061 of the Kentucky Statutes, Carroll's Edition of 1915, relating to the state board of health, creating bureaus within said board to perform the functions of the existing state tuberculosis commission, the hotel inspector, the pure food and drug division of the agricultural Experiment Station, and for other purposes, creating county and district departments of health and providing and limiting appropriations of the state board of health and further defining its powers and duties."

As is indicated by the title, the amendment is a codification of the statutory laws upon the subject of the public health, by transferring to and imposing upon the state board of health, under appropriate bureaus, the duties theretofore performed by the state tuberculosis commission, the hotel inspector, and the pure food and drug division of the agricultural Experiment Station. The new act, pursuant to its title, amends sections 2054, 2059, 2060, and 2061, and greatly enlarges their scope. Section 2054, as amended, constitutes section 1 of the new act and relates to appropriations and certain administrative features of the act; section 2059, as amended, is section 2 of the new act, and relates to the inspection of hotels and restaurants; section 2060, as amended, is section 3 of the new act, and relates to adulterated drugs and food; while section 2061 of the amendment constitutes section 4 of the new act and covers the subject and treatment of tuberculosis. It will be observed that these four sections of the Kentucky Statutes are mentioned in the title. But subsection 20 of section 2061, as amended, reads in part as follows:

"(20) A board to be known as the state board of health is hereby established."

Continuing, subsection 20 provides for the selection and appointment of ten members of the new board, their qualifications, etc.

The grounds of plaintiffs' objection that subsection 20 of the amendment above referred to violates section 51 of the Constitution are: (1) That the subject of subsection 20 is not expressed in the title of the act; and (2) that section 2048, fixing the terms of the members of the board is not re-enacted and published at length. Whether other sections of the act relating to the state board of health should have been re-enacted and published at length is a question not necessary to be determined now; but plaintiffs contend that section 2048 should have been so re-enacted and published, because that section is necessarily referred to in subsection 20 of the amendment to section 2061, and is a vital part of it, without which subsection 20 is meaningless. Before proceeding to discuss these questions, it may be worth while to compare sections 2054, 2059, 2060, and 2061 of the Kentucky Statutes with the amendments to those sections in the act of 1918, omitting, for the present, subsection 20, of which the plaintiffs complain.

Section 2054 made an annual appropriation of $30,000 for the state board of health, and provided the departments for which the appropriation might be used, and how warrants should be drawn; while section 2054 of the amendment of 1918 increases the appropriation to $75,000, provides the bureaus for which the appropriation should be used, adds to and elaborates those named in the original section, and provides how vouchers should be drawn. Subsection 2 of the amendment to this section provides for the compensation of city and county health officers and the duties of the public in reference to making reports, etc., directs steps to be taken for prevention and control of epidemics, and provides district health departments and prescribes their duties, the the duties of commonwealth's attorneys, or county attorneys, and the Attorney General, and for the control of yellow fever and other epidemic diseases, and similar matters, all of which are covered by the title of the act.

Section 2059 of the Kentucky Statutes, which related to local boards of health, is now covered by the amendment to section 2054; while section 2059, as re-enacted, defines the duties of the board with reference to hotel inspection and regulation, a matter which is covered by the title.

Section 2060 related to the duties of local health officers and their compensation, and this subject is covered in the amendment to section 2054; while the amendment to section 2060 prescribes the duties of the state board of health in connection with the Pure Food Law, which is also a subject covered by the title.

Section 2061 of the Statutes provided for the continuance in office of existing local boards, a matter which, in the amendment of 1918, is put into the amendment to subsection 20 of the new section 2061, although nothing in section 2061, as amended, affects local boards, and the first 19 subsections of the amendment to section 2061 relate to the duties of the state board of health in connection with the study and prevention of tuberculosis, which is a matter also covered by the title of the amendatory act.

It will be...