State Board of Charities and Corrections v. Combs

• Decision Date: 27 January 1922
• Citation: 237 S.W. 32,193 Ky. 548
• Parties: STATE BOARD OF CHARITIES AND CORRECTIONS ET AL. v. COMBS.
• Court: Kentucky Court of Appeals

237 S.W. 32

193 Ky. 548

STATE BOARD OF CHARITIES AND CORRECTIONS ET AL. v. COMBS.

Court of Appeals of Kentucky.

January 27, 1922

Appeal from Circuit Court, Franklin County.

Mandamus by Kilos Combs against the State Board of Charities and Corrections and another. From a judgment granting the writ defendants appeal. Reversed and remanded.

Chas I. Dawson, Atty. Gen., for appellants.

Edwards Ogden & Peak, of Louisville, for appellee.

HURT C.J.

The appellee, Kilos Combs, was convicted of felonious housebreaking, and sentenced to imprisonment in the state reformatory at Frankfort, Ky. for a term of two years. He was committed to the institution on the 24th day of March, 1920, to undergo the sentence imposed upon him. On the 29th day of September, 1921, insisting that under the provisions of section 1136a, Ky. Stats. Supp. 1918, and in accordance with a proper administration of the law provided by such statute, he was entitled to be discharged from the institution on the 26th day of September, 1921, he brought this action for a writ of mandamus against the appellants, State Board of Charities and Corrections and the superintendent of the reformatory, requiring them to grant him freedom from the institution. The writ was granted, and the defendants have appealed from the judgment.

The appellants insisted in the circuit court, and insist here, that section 1136a, supra, is void because enacted in violation of section 51 of the Constitution, and for that reason the provisions of the section are not to be applied; and, further, that, if the statute contained in section 1136a, supra, is valid and enforceable, in accordance with its proper construction and administration and under the rules and regulations which it authorized the State Board of Charities and Corrections to adopt, and which have been adopted by it, the sentence of appellee would not expire until January 13, 1922. The judgment of the court was adverse to the contentions of appellants upon each of these matters of controversy.

(a) If the statute is void because violative of section 51 of the Constitution, it will be unnecessary to construe its provisions or to consider the powers of the Board of Charities and Corrections under it, and hence we will first determine whether or not it was enacted in violation of the requirements of the Constitution. Section 51 of the Constitution, which, it is insisted, it was enacted in violation of, is 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."

At the Legislative session of 1914, a statute was enacted under the following title:

"An act concerning the trial and punishment of persons indicted for a felony or misdemeanor."

By this act the Legislature enacted what is known as the "indeterminate sentence law," which made it the duty of the jury, where one was found guilty of a felony, the punishment of which was imprisonment for a term of years, to fix the period of imprisonment between a minimum and a maximum number of years, and the duty of the court was to adjudge the felon to an indefinite term of imprisonment in accordance with the verdict of the jury. The act also provided that--

"Persons sentenced to punishment by confinement in the penitentiary shall be kept at hard labor."

The act further provided that all acts and parts of acts in conflict with it were repealed. The act was designated in the Session Acts of 1914 as chapter 19.

Thereafter, in 1916, an act was adopted by the General Assembly (Acts 1916, c. 39), the two sections of which are now designated in the Ky. Stats. Supp. 1918 as sections 1136 and 1136a. The title of this act was:

"An act to repeal and re-enact chapter 19 of the Acts of 1914, which is an act concerning the trial and punishment of prisoners indicted for felony or misdemeanor."

Following this title, the entire act is as follows:

"Section 1. That chapter 19, of the Acts of 1914, which is now section 1136 of the Kentucky Statutes, be, and the same is hereby repealed, amended and re-enacted so that same will read as follows: 'The jury by whom an offender is tried shall fix by their verdict the punishment to be inflicted within the periods and amount prescribed by law; persons sentenced to punishment by confinement in the penitentiary shall be kept at hard labor. In cases where the punishment is a fine or imprisonment in the county jail, or both, the imprisonment shall be close confinement in the jail of the county where the trial was held, unless otherwise provided; and the prisoner shall also be confined in the jail until the costs are paid, unless otherwise provided.' Sec. 2. Any person convicted and sentenced to the penitentiary under the preceding section shall receive a credit on his sentence of not exceeding ten days in each month, the amount of credit to be determined by the Board of Prison Commissioners from the conduct of the prisoner. The Board of Penitentiary Commissioners shall prescribe rules for the control, conduct and management of the prisoners and allow to each prisoner a credit on his or her sentence in accordance with such rules and regulations.

Sec. 3. All laws in conflict with this act are hereby repealed."

At the time the latter act was enacted, and before the act of 1914, which the latter act purports to repeal and re-enact, there was in force among the statute laws of the state a statute which is section 3801, Ky. Stats., and which, among other things relating to the duties of the clerk of the penitentiary, provided:

"He shall also keep a book, in which he shall enter, monthly, the deportment of each prisoner, and each prisoner against whom no charge for misconduct is sustained, shall be allowed a commutation of seven days in each calendar month for good behavior, subject, however, to revision and curtailment by the commissioners for offenses against the rules of the penitentiary or the laws of the state."

The condition of the legislation upon the subject being as above shown, it is insisted by the appellants that section 2 of the act of 1916, which is designated in the Ky. Stats. Supp. 1918 as section 1136a, is unconstitutional, because it purports to be and is an act amendatory of chapter 19, Session Acts 1914; that the last-mentioned act did not in any way deal with the subject of the commutation of the sentence of a prisoner on account of good conduct, nor empower the Board of Charities and Corrections to make any rules upon the subject, or any rules for the conduct of prisoners, to which subjects the section 1136a is devoted, and therefore the subject-matter of the latter section is not germane to nor covered by the title of the act of 1916, of which section 1136a is a part; and that especially is this true when there existed at the time of the enactment of the act of 1916 a statute (section 3801, supra), which dealt with the commutation of a sentence of imprisonment for a felony, and of which statute no mention was made in the title of the act of 1916 nor in the body of the act; and for the above reasons the title of the act of 1916 was restricted, as to the branches of the general subject of the trial and punishment of persons for felonies, to the branches of that subject dealt with in chapter 19 of the Acts of 1914. It was insisted that one of the rules of construction regarding section 51 of the Constitution is that, when the title of an act purported that the act was one to amend and re-enact a specific statute, the portion of the body of such an act which was inconsistent with another specific statute, not referred to in the title of the amendatory act, was invalid, and did not work a repeal nor modify nor amend the specific statute not referred to in the title, although the amendatory act might have a title which indicated that the act dealt with a general subject.

The above contentions were ingeniously and ably insisted upon but it should be borne in mind that section 51, supra, makes no requirements for a valid act of the Legislature with reference to the subject of the act other than that a valid act shall have but one subject, and that subject shall be expressed in the title, and this requirement applies with equal force to an amendatory act as to an original act. As to the requirements of the title to an act, they are the same as to every kind of act of the Legislature. The title of an act is the index to its contents, and the Legislature has the power to make the title as general or as restrictive as it chooses, and whether the matter embodied in the act is germane to the subject expressed in the title and naturally connected with it and not foreign to it depends upon the general nature of the subject and the limits to which the title is restricted. If the title of an act expresses that the act relates to a general subject, it is notice to the members of the Legislature and to the public that any provision that is naturally connected with that subject and not foreign to it may be found embodied in it, and thus the members of the Legislature are not induced to vote for the passage of an act of which the title is a deception. When the matters dealt with in the body of the act bear such relation to the subject expressed in the title, the requirements of section 51, supra, are satisfied to the extent that it provides that an act shall have but one subject, and that expressed in the title. Commonwealth v. Starr, 160 Ky. 260, 169 S.W. 743; McGlone v. Womack, 129 Ky. 274, 111 S.W. 688, 33 Ky. Law Rep. 811, 864, 17 L. R. A. ...