Williams v. Wedding

• Decision Date: 11 June 1915
• Parties: WILLIAMS ET AL. v. WEDDING, JUDGE, ET AL.
• Court: Kentucky Court of Appeals

176 S.W. 1176

165 Ky. 361

WILLIAMS ET AL. v. WEDDING, JUDGE, ET AL.

Court of Appeals of Kentucky.

June 11, 1915

Appeal from Circuit Court, Ohio County.

Suit by W. H. Williams and others against R. R. Wedding, Judge of the County Court, and others. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Reversed and remanded.

Barnes & Smith, of Hartford, for appellants.

Ernest Woodward, of Hartford, for appellee Ohio County Board of Drainage Com'rs.

Heavrin & Kirk, of Hartford, for appellees Bennett & Scamahorn.

HURT J.

The appellants, W. H. Williams et al. are landowners in Ohio county, Ky. and are the plaintiffs in a suit brought to restrain the board of drainage commissioners of that county from letting a contract for the construction of a public ditch or drain, and from issuing bonds for the payment of the cost of construction and from entering on their lands to construct the work. The judge of the county court and the county of Ohio, and the contractors to construct the ditch or drain, and the petitioners to the court in the proceeding had to establish the drainage district and to construct the ditch were made parties defendants to the suit. The plaintiffs below, who are the appellants here, sought to have declared void two judgments of the county court rendered in the proceedings, one of which was the judgment approving the final report of the viewers, and the other was the judgment fixing the estimated cost of the work at a different sum from the judgment confirming the viewers' final report. The proceedings in the county court to establish the drainage district and to construct the ditch were had under the provisions of chapter 132, Session Acts 1912. A general demurrer to the petition, as amended, of the appellants, was sustained in the court below, and the petition dismissed, to which judgment of the court they excepted.

The appellants sought the relief prayed for by them upon two grounds, one of which is they insist that the legislative act in question is unconstitutional and void for many reasons urged by them and for that reason the entire proceeding to establish the drainage district and to construct the ditch was void. The other ground upon which they rely is the allegation that the judgment of the county court, approving the final report of the viewers and establishing the drainage district, was made by the regular judge of the county court, who, as they allege, had no authority to do so.

It is insisted that the act of the Legislature above mentioned is contrary to the provisions of section 51 of the Constitution which provides that no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title. The act in question contains 51 sections, and is a very elaborate and comprehensive act. It is very evident that the Legislature, by the passage of the act, intended to establish a complete system of drainage for the swamp and wet lands in the state, and to provide the methods of procedure for that purpose, and the collection of the cost and expenses of it, and to provide by whom it might be done, and the payment to such persons performing the work a reasonable compensation, and providing officers to control and supervise the drainage districts in a county, and to keep them in repair. The title to the act describes it as an act relating to the drainage of lands, the establishment and construction of levees, ditches, and drains, and the straightening, widening, and deepening, and otherwise improving, public levees, ditches, drains, creeks, and nonnavigable streams, prescribing the method of procedure, the assessment and collection of the cost and expenses thereof, creating and incorporating boards of drainage commissioners, and prescribing the duties, and providing for the payment of the officers and employés having duties to perform thereunder. The act is too long to undertake to set out all of its provisions in an opinion, but a reading of it demonstrates that all of the sections of it relate to one subject, and the subject of it is as set forth in the title, and no subject dealt with by the act is foreign to the title, and the title seems to be fairly expressive of the contest of the act.

The rule, which has often been held by this court in relation to section 51 of the Constitution, and in determining whether an act of the Legislature complies with the requirements of that section of the Constitution, is that if all of the provisions of an act relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, it is sufficient. 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. (N. S.) 855; Mark v. Bloom, 141 Ky. 474, 133 S.W. 203; Nunn v. Bank, 107 Ky. 262, 53 S.W. 665, 21 Ky. Law Rep. 961; Conley v. Commonwealth, 98 Ky. 125, 32 S.W. 285, 17 Ky. Law Rep. 678; Diamond v. Commonwealth, 124 Ky. 418, 99 S.W. 232, 30 Ky. Law Rep. 655; Johnson v. City, 121 Ky. 594, 88 S.W. 672, 28 Ky. Law Rep. 569; Burnsides v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276, 9 Ky. Law Rep. 635; Joyce v. Woods, 78 Ky. 386; Wiemer v. Commissioners, etc., 124 Ky. 377, 99 S.W. 242; Ky. Live Stock, etc., v. Hager, 120 Ky. 125, 85 S.W. 738, 9 Ann.Cas. 50. The only subject which is expressed in the title is the subject of drainage of lands, to be accomplished by digging ditches and widening and straightening streams, so as to perform the duties of drainage efficiently, and the erection of levees for the purpose of preventing the overflow of lands, and thereby draining the swampy and wet lands, and the methods and means for carrying out these purposes, and all of the sections of the act are naturally connected with the subject expressed in the title.

The appellants insist that the act of the Legislature, under which the proceeding was had, is void, because violative, in addition to section 51 of the Constitution, also of sections 2, 7, 13, 14, 26, 109, 135, 157, 242, and 158 of the Constitution of the state, and of the fourteenth amendment to the federal Constitution. The sections of the state Constitution, which they claim the act is violative of, are as follows:

"Sec. 2. Absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority."

"Sec. 7. The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution."

"Sec. 13. No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.

Sec. 14. All courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay."

"Sec. 26. To guard against transgression of the high powers which we have delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void."

"Sec. 109. The judicial power of the commonwealth, both as to matters of law and equity, shall be vested in the Senate when sitting as a court of impeachment, and one supreme court (to be styled the Court of Appeals) and the courts established by this Constitution."

"Sec. 242. Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. The General Assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual, made by commissioners or otherwise; and upon appeal from such preliminary assessment, the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law." "Sec. 157. The tax rate of cities, towns, counties, taxing districts, and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz.: * * * And for counties and taxing districts, fifty cents on the one hundred dollars. * * * No county, city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same.

Sec. 158. The respective cities, towns, counties, taxing districts, and municipalities shall not be authorized or permitted to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding the following named maximum percentages on the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, viz.: * * * And counties, taxing districts, and other municipalities, two per centum. * * *"

To determine...