221 S.W.2d 64 | Ky. Ct. App. | 1949
Affirming.
Herbert Scott was indicted for the offense of abandoning his infant children under sixteen years of age without complying with the judgment of the Hopkins Circuit Court divorcing him from his wife and ordering him to pay $100 per month for the support of these children, an offense denounced by KRS
In a concise and well-considered opinion the circuit court decided the 1946 amendment was unconstitutional because it ran afoul of that part of sec. 51 of our Constitution which provides:
"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 first subsection of KRS
The 1946 amendment appears in KRS
"An Act relating to the abandonment of a child under sixteen, and amending Section
"Be it enacted by the General Assembly of the Commonwealth of Kentucky:
"1. That Section
"If a divorce has been granted by a court of competent jurisdiction, and the parent of any child under the age of sixteen years shall desert or abandon such child, without complying with the orders of the court as set forth in the judgment granting said divorce relative to the custody or support of said child, or if such parent having custody of such child under the orders of said court shall abandon and desert said child, or if a parent, not having custody of said child, shall take and carry away said child from the custody of the parent to whom the custody of such child was awarded by said judgment of divorce, without the consent of the parent having such custody, the parent so doing shall be deemed guilty of a felony and shall be confined in the penitentiary for not less than one nor more than five years.
"2. All laws or parts of laws in conflict herewith are hereby repealed."
It will be noted that the title to the 1946 Act expressly states it is amending KRS
The instant case is nearly parallel with the Spencer opinion. There, as here, both the title and the Act recite the statute was to be amended by adding a section. It was argued in the Spencer case that the sufficiency of the Act is not to be measured by Sec. 51 but that the title, as well as the Act, should be treated as new legislation. It was written in the Spencer opinion that a conclusive answer to that argument was that the Legislature did not treat the Act as new legislation, but styled it as an amendment. The Legislature said in so many words it intended to, and did, amend the Act of 1898. In the legislation we are now considering the General Assembly plainly stated both in the title and in the body of the Act it was amending KRS
As we said in the Spencer opinion,
It appears to us that his fourth rule, which he refers to as "d"
"(d) when the new act purports to amend an existing *541 act by extending, revising, or amending it, and no particular section or part of it is specified, then the body of the new act must set forth the whole of the existing act as it will appear when extended, revised, or amended; but, if only a section or several sections of an act are extended, revised, or amended, it is only necessary to specify and republish the section or sections that are extended, revised, or amended."
The 1946 amendment we are now considering purported to amend KRS
The Commonwealth argues there is a well-recognized exception to the rule that a law when amended must be published in its amended form, which is that when the amendatory act is complete within itself and will stand alone as a new law without reference to the act it is amending, then only the amendment, and not the law it is amending, need be published, citing Clark v. Com.,
The amendment before us is not complete in itself but must be read in conjunction with the first two subsections of KRS
To summarize, the court is of the opinion that in adding subsection 3 to KRS