October 20, 2012

Commonwealth v. Bassett, et al., Wayne, 1916

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Commonwealth v. Bassett, et al.

COURT OF APPEALS OF KENTUCKY

171 Ky. 385; 188 S.W. 459; 1916 Ky. LEXIS 365

October 10, 1916, Decided

PRIOR HISTORY:  [***1]  Appeal from Wayne Circuit Court. 

DISPOSITION: Judgment affirmed.

COUNSEL: W. N. FLIPPIN and M. M. LOGAN, Attorney General, for appellant.

O. B. BERTRAM for appellees. 

JUDGES: CHIEF JUSTICE MILLER. 

OPINION BY: MILLER 

OPINION
 [**460]   [*386]  OPINION OF THE COURT BY CHIEF JUSTICE MILLER--Affirming.

George Bassett and Howell Bassett were indicted for the offense of carrying on business under the assumed name, designation and style, of the "Bassett Hardwood Manufacturing Company," without having first filed in the county court clerk's office a certificate setting forth the name under which said business was to be conducted or transacted, and the true or real full name or names of the person or persons owning, conducting or transacting the same, with their postoffice addresses, as is required by the Act of 1906, now section 199b of the Kentucky Statutes.

The circuit court sustained a demurrer to the indictment and the Commonwealth appeals.

1. Appellees insist that the Act of 1906 is unconstitutional because it violates section 51 of the constitution, which provides that no law enacted by the General Assembly shall relate to more than one subject, which shall be expressed in the title. The Act of 1906 is [***2]  entitled, "An Act regulating the carrying on of business under an assumed or fictitious name," while the body of the Act makes it unlawful for any person to carry on business in this State "under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business," without filing the required certificate in the clerk's office.

It is argued that by reading the title of the Act one could not understand that it was intended to be a violation of the law to use any designation, name or style, corporate or otherwise, since that would be a departure from the title of the Act: that, in order to violate this  [*387]  statute, the name used must be, either assumed or fictitious; and, consequently, that that part of the body of the Act which makes it a violation of the law to do business under "any designation, name or style" is foreign to the title, and makes the Act unconstitutional.

It will be noticed, however, that the body of the Act is not confined to the regulation of business carried on under "any designation, name or style," but that it applies to all business [***3]  carried on in this State "under an assumed name, or under any designation, name or style."

The title relates to the carrying on of business "under an assumed or fictitious name," while the body of the Act treats of business transacted under an assumed name or under any designation, name or style, which is the same, in substance, as doing business under an assumed or fictitious name.

If all the provisions of an Act relating to the same subject are naturally connected, and are not foreign to the subject expressed in the title, it will be sufficient. Burnside v. Lincoln County Court, 86 Ky. 423, 6 S.W. 276; Mark v. Bloom, 141 Ky. 474, 133 S.W. 203.

The purpose of section 51 of the constitution being to prevent log-rolling legislation, surprise or fraud upon the legislature, and to fairly apprise the people through the usual publication of legislative proceedings, of the subjects of legislation under consideration, it is clear those purposes have been accomplished in this instance. Cooley's Const. Lim., 7th ed., p. 205; Board of Trustees v. Tate, 155 Ky. 296.

2. We are advised, by the briefs, that the trial court sustained the demurrer to the [***4]  indictment because the "Bassett Hardwood Manufacturing Co." was neither an assumed nor a fictitious name, although it might be a style, designation or name mentioned in the body of the Act; that it must be construed to apply to business conducted only under an assumed or fictitious name; and, that this case was not covered by the Act. We cannot, however, concur in this view.

The purpose of the Act was to enable the public and those dealing with a business not conducted in the real name of at least one of the owners thereof, to be informed as to whom they were dealing with. It was not intended by the title of the Act to restrict the operation of the Act to assumed or fictitious names, to the exclusion  [*388]  of such business as might be carried on under a designation, name or style. The words "assumed or fictitious names" were used in the title in their broad sense, and include that character of partnerships, names or styles embraced in the words "assumed name," "designation," "names" and "styles," used in the body of the Act. They all mean substantially the same thing, and are words used to describe the name of any business that is not carried on in the real name of at least [***5]  one of the parties interested in such business.

There is, therefore, only one subject attempted to be legislated upon, either in the title or in the Act, and that is the regulation of the conduct of business in those cases where the real name of at least one of the individuals carrying on such business does not appear in the name, designation or style of the business.

Under the rule that the title must be fairly expressive of the context of the Act and is to be read in connection with it in determining the meaning of the Act, we are of opinion, not only that the requirements of section 51 of the constitution have been satisfied in this instance, but that the statute covers cases where business is carried on either under an assumed or fictitious name, or under a designation and style.

3. However, subsection 4 of the Act of 1906 provides as follows:

"This act shall in no way affect or apply to any corporation duly organized under the laws of this State, or any corporation organized under the laws of any other State and lawfully doing business in this State, nor shall this act be deemed or construed to prevent the lawful  [**461]  use of a partnership name or designation, provided [***6]  that such partnership name or designation shall include the true real name of at least one of such persons transacting business."

In the business conducted by George Bassett and Howell Bassett, we, therefore, have this further question: "Do they come within the exemption provided by subsection 4 above quoted, when they do business under the name and style of the "Bassett Hardwood Manufacturing Company?"

The Commonwealth contends that the purpose of the Act being to inform the public and those dealing with such business concerns, as to the persons with whom  [*389]  they are dealing, the use of the surname of one of the members does not satisfy the statute.

We do not, however, so read the statute. Its purpose was to exempt partnerships from the duty of filing the statutory notice so long as the partnership name or designation was sufficiently distinctive to identify it with the partners. This end is fully accomplished by using the surname of the partners.

This precise question was lately before the court in the case of Commonwealth v. Richey, 171 Ky. 330, 188 S.W. 397, and was decided in conformity with the view above expressed.

Judgment affirmed.

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