The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-12-16
so treated and considered by the courts

so treated and considered by the courts
and the 1egisla ture.
In all the legislatures of our state the
comforting of corporate powers upon
cities has never been blended with leg
islation comforting other powers or au-
thority, but it has been recognized and
treated as a separate subject
The fact that the object to be accom-
pI1Shed by conferring power upon cities
to pass ordinances for the suppression
of places where intoxicating liquors are
sold or used in violation of law is the
same as the object to be accomplished
by the state in the enforcement of the
other provisions of the law under con-
sideration, in suppressing such places,
does not initiate against the proposition
that there are separate subjects in the
act. for in the one case the power is
vested in the state to carry out the OBJ
ject of the law. while in the other the
purpose is to invest separate and dis
tinct municipalities with authority to
pass laws whose enforcement would re-
suit in carrying out the object of the
statute. No clearer case of violating
Sec. 16 of Art. . of the constitution can
be presented than we find in this law.
Is the subject of comforting power up
on cities to pass ordinances
clearly expressed in the ii,
tie of the Hurrel law required
by the constitution? The title to the
act is "An act relating to the sale of
intoxicating liquors and the suppression
of places where such liquors are sold or
to law
In the case of Atchison, Topeka &
Santa F'e Railroad company VS.. Kear-
ney county, 50 Kan. 25 the supreme
tended to be index to its subject.
The constitution says that the subject
shall be clearly expressed in the title"
In the case of the State VS.. Bankers,
Etc. Association, % Kan sol. the su-
preme court says: 1.-The constitution
has said that the title must be an index
to the law. and the court NAV not
sanction as a valid enactment any part
of a statute to which the finger of the
title does not point
Tested by this rule can it be said
that the title of this act points to the
comforting of power upon cities to pass
ordinances? Upon reading the title
without reading the act, would it be
supposed that the legislature intended
to confer power upon cities to pass
dinanceS under such a title? This title
indicates that the legislature intended
to pass law relating to the sale of
intoxicating liquor and to the suppression
of places by the state where liquors are
sold or used or kept for sale or use
contrary to law. No mention is made
of cities, and there is nothing to point
to the comforting of power upon cities.
The legislature may make the title
to an act as broad and comprehensive
as it sees fit but the title must be
index to the proposed legislation. If
under the title of the Hurrel law power
can be conferred upon cities to pass
ordinances relating to the sale of in
toxicating liquor and to the suppression
of places where such liquors are sold
or used in violation of law, without
anything in the title to indicate any
such purpose on the part of the legis-
lature, then many of the powers pos
sessed by cities could be conferred with
out anything in the title of the act or
acts indicating that the comforting of
such power was intended. The title of
the act in question relates to partic-
ular kind of offenses. and if power can
be conferred upon a city to pass or
dinances relating to the same kind of
offenses, then by broadening the title
so as to cover other offenses full power
to pass ordinances punishing for the
same class of offenSeS could be con-
ferred.
motion that the city possessed the pow
ed to pass the ordinance in question in
dependently of the Hurrel law; but in
the case of In re Semple, Vol. 62, page
534, Pacific Reporter, the court of ap-
peals of this state, northern depart
ment, held that cities of the first class
had no authority to pass ordinances i'm
posing both fine and imprlsonm ent for
a violation thereof except for the viola
ton of an ordinance for the payment of
road tax. This decision was rendered
on October 25, 1900 has not been re-
versed and is binding upon the trial
courts.
The law that created the court of ap-
peals made their decision binding
as the decisions of the supreme court;
and while the law as declared in that
decision remains unchanged by the su
preme court this court will follow it
without stopping to inquire whether it
is a correct interpreta ton of the law or
not. The ordinance under consideration
in that case provided for fine and inn
prisOnment and the court of appeals
held it void because the city was not
authorized to impose fine and impriSon-
ment as a part of the punishment for
a violation of its ordinances. And it
was doubtless because of this decision
that the legislature at it's next session
thereafter passed section Z of the Hur-
rel law.
The Hurrel law contains two subjects
and the subject of section seven, which
attempts to confer power upon cities
to pass ordinances, is not clearly ex-
pressed in the title of the act and that
section is therefore unconstitutional.
The ordinance in question which was
passed by virtue of the authority con-
ferred in said section seven is there
fore void.
Various other questions were dis
cussed by counsel upon the hearing of
the motion, but in view of the opinion
of the court upon the validity of sec
ton seven of this act, it is not neces-
sary to pass upon the other propositions
discussed.