4. Statutes 109-Title may be made as restrictive as Legislature chooses, and act violates Constitution if provisions are outside restriction, though proper under broader title. The Legislature may make the title as restrictive as it chooses, and so far as the act contains provisions outside the limits thus marked out, it violates Const. § 51, though such provisions might properly have been included under a broader title. which is now complained of by appellant. I case any provision having a natural connecBut we do not find that exceptions were filed tion with the subject expressed in title, and by appellant to this evidence with the com- not foreign to it, satisfies Const. § 51. missioner or to his report on that ground after it was filed in court; and, if filed, it is manifest from the record that they were not passed on by the chancellor. It is a wellrecognized rule of practice and procedure that, when exceptions filed to the depositions of witnesses are not passed on in the circuit court, or, if passed on, no exception was taken to the ruling of that court thereon, upon appeal the Court of Appeals will regard such exceptions as having been waived, and treat the case as if no question had been made as to the competency of the witness or witnesses, or as to the admissibility of his or their testimony. Civil Code, § 589; Hat-sufficiently broad to give notice that the chapfield, Adm'r, v. Hatfield, 166 Ky. 761, 179 S. ter contained Ky. St. Supp. 1918, § 2061a15, W. 832; Lewis v. Wright, 3 Bush, 311; Corn or extended the powers of a bureau to be crev. Sims, etc., 3 Metc. 398; Bronston v. Bronston, 141 Ky. 639, 133 S. W. 584; Patterson v. Hansel, 4 Bush, 654; L. & N. R. R. Co. v. Graves, 78 Ky. 74. We are therefore prevented by the rule supra from passing on the competency of the evidence in question, which is not only uncontradicted, but strengthened by the testimony of the appellant himself admitting his intimacy with Dinkelspiel, the fact that the latter was his tenant when the note was executed, and his knowledge that he conducted in the building rented of him gambling transactions, such as bookmaking on horse racing and the like. Dinkelspiel was not introduced as witness. On the whole case we find no reason for disagreeing with the report of the commissioner, or the action of the circuit court in confirming the same and dismissing the cross-petition of appellant. Wherefore the judgment is affirmed. TUBERCULOSIS DISTRICT BOARD OF 1. Constitutional law 35-Provisions man- Section requiring 5. Statutes 1102(4) city to levy tax for tuberculosis sanitarium not within title. The title to Sess. Acts 1918, c. 65, is not ated in the board of health beyond those had by the state tuberculosis commissioners, nor that it embraced a scheme for the creation of districts for the erection and maintenance of sanitariums and added to the powers of the trustees of such sanitariums the power to require cities of the second class to levy and collect the taxes at the behest of the trustees for the benefit of the sanitariums, and the act is void under Const. § 51, to that extent. Appeal from Circuit Court, Fayette County. Action by the District Board of Tuberculosis Sanitarium Trustees for Fayette County against T. C. Bradley, Mayor of the City of Lexington, and others. Judgment for defendants, and plaintiff appeals. Affirmed. Allen & Duncan, of Lexington, for appellant. W. H. Townsend, Hogan L. Yancey, Henry B. Miller, and Jas. A. Wilmore, all of Lexington, for appellees. HURT, J. This action involves the right of the district board of tuberculosis sanitarium trustees of Fayette county to require the mayor and commissioners of the city of Lexington, a city of the second class, to levy upon the taxable property within that city a tax and collect the same, for the benefit of the tuberculosis district which is composed of All provisions of the Constitution are man- Fayette county. The right to do so is based datory. upon the provisions of section 2061a15, vol. 3, Ky. Stats. Pursuant to such provisions the district board of tuberculosis sanitarium trustees of Fayette county made a demand of the mayor and commissioners of the city of Lexington to levy, for its benefit, a tax upon the property of the inhabitants of the city for the year 1920, sufficient, when collected, to produce the sum of $27,032.79. The mayor and commissioners refused to levy or collect the tax required. The district board of tuberculosis sanitarium trustees thereupon instituted proceedings against the mayor (222 S.W.) tor, the pure food and drug division of the agricultural experiment station, and for other purof health and providing and limiting appropriposes, creating .county and district departments ations of the state board of health and further defining its powers and duties." and commissioners to secure a writ of manda-, board of health, creating bureaus within said mus which would require them to levy and board to perform the functions of the existing collect the tax. The mayor and commission-state tuberculosis commission, the hotel inspecers resisted the motion for the writ upon the ground that the act of the General Assembly which authorized the demand for the levy of the tax and required them to make such levy and collect such tax was unconstitutional and void. The court sustained the contentions of the mayor and commissioners and denied the writ, and from the judgment the sanitarium trustees have appealed. Several different grounds are relied upon as reasons for the invalidity of the statute, which authorizes the trustees of the sanitarium district to require the levy of the tax, and the mayor and commissioners of the city to make the levy and collect the tax, among which is that the statute was not enacted in conformity with the requirements of section 51 of the Constitution, and this objection to the validity of the statute will be first considered. Section 51, supra, is in part as follows: "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title. * The authority to require the tax levy, if such authority exists, is wholly by virtue of section 2061a15, Ky. Stats. vol. 3, and is a part of subsection 9 of section 4 of chapter 65, Session Acts 1918. That part of the act of 1918 which constitutes section 2061a15, supra, is as follows: [1, 2] All provisions of the Constitution are mandatory, and the duty imposed upon the courts is to construe and enforce them in accordance with their meaning and purpose. The wisdom of a provision of the Constitution is a matter with which the courts, nor any other department of the government, has any concern. Their wisdom, propriety, and desirability were tried out before the sovereign tribunal of the people, when the great plebiscite for that purpose resulted in their adoption as the supreme law of the land which cannot be contravened by the legislative, judicial, nor executive departments of the government, and any act or thing which is undertaken to be performed contrary to its provisions is void. Hence any act of the General Assembly which relates to more than one subject, or the title of which does not express the subject about which the legislation is attempted, is void. In construing the section of the Constitution, supra, to determine its applicability to any particular legislative act, the courts have looked to the purpose of its adoption and the evil sought to be remedied by it as guides and assistants to its interpretation. The courts have uniformly assigned as the reasons for its adoption that log-rolling legislation might be prevented, and to protect the legislators from surprise and fraud by provisions in legislative measures, the title to which give no notice of their contents, and might therefore be overlooked, or carelessly adopted, and, further, to apprise the public of proposed legislation so that the usual publication of the proceedings of the legislative bodies would give notice, to such of the proposed legislative measures, in orpersons as might read them, of the contents der that objectionable provisions might be opposed in a hearing for that purpose. These reasons will be found assigned for the adoption of the constitutional provision in a number of cases, among which is Commonwealth v. Bassett, 171 Ky. 385, 188 S. W. 459; Smith v. Commonwealth, 175 Ky. 291, 194 S. w. 367; Bosworth, Auditor, v. State University, 166 Ky. 436, 179 S. W. 403, L. R. A. The above-quoted statute is a portion of 1917B, 808; Board of Trustees, etc., v. Tate, chapter 65 of the Session Acts of the Gener-155 Ky. 296, 159 S. W. 777; South v. Fish, 181 al Assembly of 1918, and that enactment has Ky. 349, 205 S. W. 329; Exall v. Holland, 166 a title which is as follows: "Provided, however, that in a district wherein there is a county or counties containing a city or cities of the second class the district board of trustees shall annually estimate and prior to December 31st lay before the general council or board of commissioners of such city or cities the need of such district for the site, erection and maintenance, or for improvements, additions and maintenance, or for improvements, additions and maintenance, or for the maintenance of the tuberculosis sanitarium for the next succeeding year. "In order to raise such portion of this money as the board holds to be equitable proportion for the city or cities for the purpose or purposes above set out, such general council or board of commissioners shall at the next succeeding levy cause to be levied and collected a tax of not less than two cents and not more than eight cents on each one hundred dollars of property assessed for taxation for city purposes, and said levy shall be included in the annual appropriation ordinance for that year. "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 Ky. 315, 179 S. W. 241. [3] The Legislature in the enactment of a measure may make for it such a title as it chooses, and, as said in Cooley's Constitutional Limitations, 212, the title of an act is "the conclusive index of the legislative in- should be so "natural and obvious that the tent as to what shall have operation," and ordinary mind will readily perceive it." the Constitution has so ordained it. The title These rules of construction of section 51, may be general, and in such a state of case supra, have been referred to and approved any provision of the statute having a natural in Ogden v. Cronan, supra, and South v. connection with the subject expressed in the Fish, supra. With the above approved title, and not foreign to it, satisfies the re- rules of construction and the reasons for the quirements of the Constitution. Johnson v. adoption of the section 51, supra, in mind, Higgins, 3 Metc. 566; McReynolds v. Small- the concrete question for determination prehouse, 8 Bush, 447; Com. v. Starr, 160 Ky.sented by the instant case is, Does the title 260, 169 S. W. 743; Johnson v. City of Ful- to the act of 1918 express the subject of the ton, 121 Ky. 194, 89 S. W. 672, 28 Ky. Law legislation embraced in section 2061a15, Ky. Rep. 569; Burnside v. Lincoln County Court; Stats. vol. 3, which is a provision of the act 86 Ky. 423, 6 S. W. 276, 9 Ky. Law Rep. 635; of 1918? Conley v. Com., 98 Ky. 125, 32 S. W. 285, 17 Ky. Law Rep. 678. [4] The Legislature may, however, make the title to an act as restrictive as it chooses, and in that state of case, as said in 26 Am. & Eng. Ency. of Law, p. 589: [5] It will be observed that the particular subject of legislation to be made by the act of 1918, as declared or expressed in the title, by reason of the language made use of, is somewhat obscure and doubtful, but this court, in South v. Fish, supra, in which the "Where the language employed in the title validity of subsection 20 of the amendment is such as would lead a reasonable man to sup-to section 2061 of the act was considered, pose that the Legislature intended to restrict determined, that the proper reading of the the scope of the act within certain limits speci- title to the act of 1918 was as follows: fied in the title, such act is unconstitutional, so far as concern any provisions outside the limits thus marked out, even though such pro-ing, amending and re-enacting sections 2054, visions might properly have been included in 2059, 2060 and 2061 of the Kentucky Statutes, Carroll's Edition of 1915, relating to the state board of health," etc. the act under a broader title." Instances in which this court has held legislation to be unconstitutional, on account of the restricted nature of the subject expressed in the title, excluding matters which would have been germane to a broader title, will be found in the cases of Board of Trustees v. Tate, 155 Ky. 296, 159 S. W. 777; Henderson Bridge Co. v. Alves, 122 Ky. 46, 90 S. W. 995, 28 Ky. Law Rep. 994; Thompson v. Commonwealth, 159 Ky. 8, 166 S. W. 623; Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S. W. 1017; Burton v. Monticello Burnside Turnpike Co., 162 Ky. 787, 173 S. W. 144; Bosworth, Auditor, v. State University, 166 Ky. 436, 179 S. W. 403, L. R. A. 1917B, 808; Exall v. Holland, 166 Ky. 315, 179 S. W. 241; Ogden v. Cronan, Sheriff, 171 Ky. 254, 188 S. W. 357; Houston v. Boltz, 169 Ky. 640, 185 S. W. 76; South v. Fish, supra. In Wiemer v. Commissioners, etc., 124 Ky. 377, 99 S. W. 242, 30 Ky. Law Rep. 523, it was said: "The General Assembly may, by the terms used in the title, restrict the scope of the act to as narrow a plane as they choose; and it follows that, if the title be too narrow and restrictive to embrace any part of the body of the act, to that extent the statute will be unconstitutional, although the different parts of the body are sufficiently cognate as not to be inimical to the inhibition of the Constitution against placing more than one subject in an act." It was in the same case held that the relationship of the body of the act to the title "An act relating to public health, by repeal In another place, in the same opinion, it was said: "By reading the title to this act one would naturally suppose that it related only to sections 2054, 2059, 2060, and 2061 of the Kentucky Statutes, and created the three bureaus therein specified." Whether a proper reading of the title would make necessary the insertion of the preposition "by" or the conjunction “and” or the insertion of both, preceding the words "creating bureaus within said board to perform the functions of the existing state tuberculosis commission," etc., either would convey substantially the same meaning to one reading the title, and that would be that the act contained legislation which created a bureau within the board of health to perform the functions of the then existing state tuberculosis commission and would exclude the idea that a bureau would be created to perform the functions of any district board of trustees of a tuberculosis sanitarium, unless, at least, the district board performed functions as an agency of the state commission. A reference to sections 2054, 2059, 2060, and 2031, Ky. Stats., Carroll's Edition of 1915, which the title of the act of 1918 in part expressed as the purpose of the act to repeal, amend, and re-enact, readily demonstrates that neither of these sections treated of a tuberculosis sanitarium district, nor the duties nor functions of the state tuberculosis commission or commissioners, nor to taxation for the erection or maintenance of (222 S.W.) "Creating bureaus within said board to perform the functions of the existing state tuberculosis commission." a tuberculosis sanitarium, and hence a ref- of which chiefly consisted in investigating erence to them by one who might read or see a the cause and prevalence of tuberculosis publication of the proposed legislation by its and encouraging the efforts for its eradicatitle would receive no intimation that the tion and the publication of information in legislation proposed under the title would regard to it, but without duties or powers or did contain any provisions providing for touching the creation of tuberculosis sanithe creation of tuberculosis sanitarium dis- tarium districts, or the levying of taxes for tricts or imposing taxes upon a city of the their erection or maintenance. He would second class for the erection or maintenance have found that the duty and authority to of a tuberculosis district. Hence if the leg-levy taxes for the erection and maintenance islation contained in the act of 1918, touch- of tuberculosis sanitariums was vested ening the subject of creation of tuberculosis tirely in the fiscal courts of the counties, sanitarium districts and the imposition of except in the instances where two or more taxes for the erection and maintenance of counties were embraced in a district the fissanitariums, is anywhere expressed in the cal court of each county should appropriate title, it is that portion of the title which is its equitable portion of the burden of the couched in the following language: maintenance of the sanitarium to be ascertained under regulations to be prescribed by the tuberculosis commission. The creation of tuberculosis sanitarium districts was vested in the fiscal courts of the counties, or in the people of a proposed district to be exWhile, if it is conceded that the title of pressed by their votes at an election to be the act thus expresses that the act con- held for that purpose. The only functions tains legislation which will create a bureau which the board of tuberculosis commissionwithin the board of health to perform the ers which is necessarily the same board as functions of the then existing state tuber- is referred to as the state tuberculosis comculosis commission, one naturally and logi- mission, had with reference to the creation cally reading the title would understand and conduct of a tuberculosis sanitarium that the legislation in the act purposed to district, were, that after the district was crecreate a bureau in the board of health for ated it should nominate persons to be trusthe purpose, and to transfer to it the powers tees thereof, and from the nominations the and duties and functions which the state judge of the county court should appoint tuberculosis commission then had, but he the trustees. The board of tuberculosis could not conclude that the act contained commissioners also had the right to select legislation extending the powers of the bu- the site for a sanitarium in a district, and reau beyond those then had by the state tu- to recommend plans and specifications for berculosis commissioners, nor that it also the sanitarium, which it seems the fiscal embraced a scheme for the creation of dis- courts were not obliged to accept, and it was tricts for the erection and maintenance of also vested with authority to visit the sanituberculosis sanitariums, and adding to the tarium and prefer charges of misconduct or powers of the trustees of such sanitariums, inefficiency against the trustees and emincluding the power to require cities of the ployés thereof before the authorities which second class to ievy and collect taxes at the appointed them. The governing authority of behest of the trustees and for the benefit of the sanitarium was vested in its trustees, and the sanitariums. The state board of tuber- these were without authority to require the culosis commissioners was not created nor fiscal courts to appropriate the sums it should dealt with by sections 2054, 2059, 2060, or designate for its needs, and the fiscal courts 2061, of the Kentucky Statutes of 1915, but had discretion in, fixing the appropriation to was created and all its functions defined by the needs of the institution. Hence it will section 4711b and its subsections of Kentucky be observed that the board of tuberculosis Statutes of 1915, and was an act of the Gen- commissioners were without authority, as eral Assembly of the session of 1912. There well as the sanitarium district trustees, to is no intimation in the title to the act of apportion any portion of the needs of a san1918, nor in the provisions of the act, of any itarium to a city of the second class within purpose to repeal section 4711b, supra, nor the district, and to require its authorities any of its subsections, and if such act or to levy or collect a tax for either the site, any part of it is repealed, it is by implica- | construction, or maintenance of a sanitarition. If one reading the title to the act of um. The act of 1918, however, without any 1918 should have examined section 4711b, expression in its title of the subject of cresupra, and its subsections, to have deter- ating or maintaining tuberculosis sanitarimined what functions that the act of 1918 um districts, or the powers or duties of the was proposing from its title to invest in the trustees of such a district to estimate the bureau to be created by it, he would have needs for maintenance or otherwise, and to learned that the board of tuberculosis com- certify same to the fiscal courts or commismissioners was a corporate body, the duties sioners of a second class city, but by the use um. LIAMS et al. (Court of Appeals of Kentucky. May 11, 1920. Petition for Modification of Opinion Sustained June 8, 1920.) I. Eminent domain 293 (4) To recover compensation for destruction of passway by railroad embankment landowners need not prove title to passway in themselves. for land appropriated by a railroad company In a proceeding to recover compensation for a right of way and for obstruction of a passway, a peremptory instruction in favor of the railroad company as to damages for the destruction of the passway was properly overruled, since it was not necessary for the landowners to show title in themselves to the passway in order to entitle them to prove that it had been obstructed by the railroad company as an element of damage. 2. Eminent domain 293(4)—Destruction of sation for appropriation of land and destruc- of the language in the title which expressly limited the purpose of the act with refer- LOUISVILLE & N. R. CO. et al. v. WILence to tuberculosis to legislation creating a bureau within the board of health to perform the duties of the then existing state tuberculosis commission, there was incorporated into the act, with other legislation with which we now have no concern, the section 2061a15 which authorized the district board of tuberculosis sanitarium trustees, where the district contained a city of the second class, in December of each year to estimate the needs of the district for the ensuing year for the site, erection, improvements, and maintenance of the sanitarium, and to fix the equitable portion which such city should appropriate for such purposes, and to lay same before the commissioners of the city who were required to levy a tax sufficient to produce the sum demanded and to collect and pay same to the sanitariNo reasonable interpretation of the title of the act of 1918 could be made that would include such legislation within the subject there expressed. The title of the act thus limiting its scope to legislation affecting the public health by repealing, amending, and re-enacting sections 2054, 2059, 2060, and 2061, supra, a reasonable man would suppose by reading the title that so far as the amendatory legislation of those sections was intended it would be legislation touching such matters as were reasonably and naturally connected with the subjects dealt with in those sections. The title, so far as the subject of tuberculosis was expressed, limited the scope of the act to the creation of a bureau to which the functions of the state tuberculosis commission would be assigned. Section 2061, supra, to which the legislation in controversy here was enacted as an amendment, did not deal with the subject of tuberculosis, nor sanitarium districts, nor their creation, management, nor maintenance in any respect. Hence the powers conferred upon the trustees of the sanitarium district and the duties of the commissioners of second class cities with reference to the maintenance of sanitariums by the levying of taxes for that purpose, as set out in section 2061a15, Ky. Stats. vol. 3, was beyond the limits marked out by the title to the act of 1918, and the subject of same was not expressed in the title, although such legislation might have been included in the act under a broader title without violating the constitutional provision embraced in section 51 of that instrument, touching the requirement that a law enacted by the General Assembly can relate to only one subject, and that must be expressed in the title. It is unnecessary to consider any other objection to the validity of any of the provisions of the act. The judgment is therefore affirmed. Appeal from Circuit Court, Letcher County. Proceedings by Hiram Williams and another against the Louisville & Nashville Railroad Company and another, to recover damages for appropriation of land. Judgment for the former, and the railroad companies ap peal. Affirmed. Benjamin D. Warfield, of Louisville, and Morgan & Harvie, of Whitesburg, for appellants. David Hays, of Whitesburg, and Wm. G. Deering, of Louisville, for appellees. SAMPSON, J. In February, 1919, this case, under a somewhat different style, was before this court on a prayer for specific performance of an option contract for a right of way, and an opinion was delivered which contains a complete statement of the facts as well as the law applicable to this case, in large part. See Lexington & E. R. Co. v. Williams, 183 Ky. 343, 209 S. W. 59. On the same pleadings the case on its return to the lower court was tried before a jury on a plea for damages, made by Williams and his wife against the two railroad companies, for taking and appropriating 1.4 acres of their land as right of way for damages incidental thereto. The jury returned |
