63 Ky. 478 | Ky. Ct. App. | 1866
delivered the opinion of the court:
Mary Ann O’Donoghue, on the 19th of January, 1866, brought this action against John Brent Akin for killing her husband unlawfully with a pistol in October, 1865.
The circuit court sustained a demurrer to the petition, and rendered judgment in bar of the action.
If, as the circuit court seemed to think, there was no law authorizing the appellant to recover damages for the imputed act, the judgment was right. And, in the opinion of this court, there was, when the homicide occurred, no such law. Right or wrong, it has been authoritatively adjudged by this
• The only Kentucky statutes bearing on the question are an act of the 10th of March, 1856, entitled “An act to prevent selling and using certain weapons” (2d vol. Stanton’s Rev. Stat., p. 509), and an act of January the 12th, 1866, entitled “An act to prevent the careless or wanton or malicious use of deadly weapons.”
The act of 1856, so far as it might apply to this case, is unconstitutional, and therefore not law, because killing with a pistol is not embraced by either the title or titular subject of the act.
The first subject was the selling or using of weapons (not fire-arms') specified and enumerated, and the two first sections apply exclusively to that subject; and the third section embraces killing in “any other way” or by any other weapons, including, of course, fire-arms not specified and not included in the “certain weapons ” contemplated by the title, but embracing a killing by fire-arms or poison or in any other mode.
The act, therefore, includes two' distinct and different subjects; and the last subject, which alone would apply to this case, is not embraced by the title. And the supplemental enactment of 1866 is constructively a legislative recognition of this interpretation, for it would be useless and superfluous for any other purpose than to supply the constitutional defect in the misjoinder in the statute of 1856, and which, therefore, must be the presumed object of it.
Consequently, as hitherto adjudged by this court, so much of the 3d section of the act of 1856 as would apply to a killing with a pistol was forbidden by the Constitution, which declares, that “ no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.”
The statute of 1866 was enacted since the imputed homicide, and cannot retroact so as to make the appellee civilly responsible for an act for which, when done, he was not liable to any action for damages. In the language of Kent, “the very essence of a new law is a rule for future cases;" and this
This statute, therefore, cannot uphold this action, and we know of no law that can sustain it.
Wherefore, as the judiciary cannot make law, but can only expound and apply it as constitutionally made or adopted by the legislative department, the judgment of the circuit court must be affirmed.