Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Kentucky Medical Association has expressed concern over an error in the enrolled copy of the Medical Laboratory Act of 1968 (S.B. 412, Ch. 180).
Your basic question is whether the enrolled bill will govern, regardless of the fact that a subparagraph of the bill as actually enacted was inadvertently deleted from the enrolled bill by the Clerk of the Senate.
Senate Bill 412, Section 4, actually, in its original form in the Senate exempted four types of laboratories from the provisions of the act. Section 4 read [Senate Journal 1968, Vol. 2, p. 1553]:
* * *
"Section 4. This Act applies to all medical laboratories within the State of Kentucky, except:
"(1) Medical laboratories operated by the United States Government;
"(2) Medical laboratories operated by a licensed physician, or a group of licensed physicians, solely and exclusively in connection with the diagnosis and treatment of their own patients. If any referred work is received or performed by such medical laboratories, all provisions of this Act shall apply.
"(3) Medical laboratories operated by hospitals licensed by the State Board of Health.
"(4) Medical laboratories operated and maintained exclusively for research purposes, involving no patient or public health service whatsoever."
On page 1910 of the 1968 Senate Journal, Vol. 2, we find these statements [March 12, 1968]:
"SB 412 taken from Orders of the Day and ordered read at length for the third time. Senator Frymire moved that it be read by title only and placed on passage. Agreed by a majority of members elected.
"Senator Flynn offered Amendment #1 to SB 412 and moved its adoption.
"The motion to adopt Amendment #1 to SB 412 was rejected."
The Flynn Amendment #1 is the only amendment in the Senate to the original [as introduced] Senate bill, which was introduced in the Senate on March 7, 1968. See Senate Journal 1968, Vol. 2, page 1308. On March 12, 1968, S.B. 412 passed the Senate by a vote of 24 to 5 and went to the House. On March 15, 1968, S.B. 412 passed in the House 51 to 1 without change. However, in spite of the fact that the Flynn amendment in the Senate [which would have deleted subparagraph (2) of Section 4] was rejected, the Chief Clerk of the Senate, in preparing S.B. 412 to go over to the House, inadvertently or through clerical error omitted to include subparagraph (2) in the exceptions to the bill as listed under Section 4.
In the Legislative Research Commission note in 1968 to KRS 333.040 [which shows the exceptions to the medical laboratories law] the statutory reviser noted that in floor action in the Senate, S.B. 412 was proposed to be amended to delete certain words from Section 4. He wrote that although the Senate Journal shows the proposed amendment to have been defeated, the words were nonetheless deleted from the bill, which was enrolled and signed in that form. The reviser wrote that the deleted language is:
"'(2) Medical laboratories operated by a licensed physician, or a group of licensed physicians, solely and exclusively in connection with the diagnosis and treatment of their own patients. If any referred work is received or performed by such medical laboratories, all provisions of this act shall apply.'"
Since the Senate Journal shows that only one amendment was offered in the Senate (Flynn) and subparagraph (2) of the original S.B. 412 was deleted from the enrolled bill, we deduce that the amendment related strictly to subparagraph (2) of Section 4. This deduction is buttressed, beyond reasonable doubt, by the fact that the statutes reviser in 1968, immediately after the 1968 session, wrote in his L.R.C. note to KRS 333.040 that the Flynn amendment related to deleting subparagraph (2) of Section 4. Your office has told us that in 1968 the unsuccessful amendments were not inserted in the Journals of the Senate and House.
We understand that the Kentucky Medical Association has indicated to the L.R.C. that a great number of physicians are operating medical laboratories solely and exclusively in connection with the diagnosis and treatment of their own patients. And thus many doctors are presently affected by this error in the entrolled bill.
The statute, KRS 333.040, does conform to the enrolled bill, except that the exceptions in the enrolled bill are listed as subparagraphs (1) and (3) and (4). Thus the reviser in 1968 renumbered them to read (1), (2), and (3).
Your specific question concerns the legal status of KRS 333.040.
The clerk's duties as to enrolling bills are set forth in KRS 6.160. The enrollment procedure is described in Anderson v. Commonwealth, 275 Ky. 232, 121 S.W.2d 46 (1938); and the enrolled bill is characterized therein as the highest evidence of what the law is. See page 47. Section 56 of the Kentucky Constitution required Wendell Ford, as the President of the Senate, to have the bill read at length and compared, and if correctly enrolled he was required in the presence of the Senate in open session to affix his signature. The Speaker of the House was Julian Carroll. The signatures of Ford and Carroll are on the enrolled S.B. 412. It became law without Governor Louie Nunn's signature on March 27, 1968, at 4:40 p.m.
Our appellate court in many cases has characterized the enrolled bill, when properly attested by the presiding officers of the Senate and House, as the law, the journals to the contrary notwithstanding. However, in Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812 (1939) 815, the court wrote this: "But the legislative history, which clarifies the language of the statute, may be properly considered in interpreting it." In that case a clause out of the enacted legislation was deleted from the enrolled bill. The court, however, did not deal explicitly with that error in its ruling, since the consideration of the omitted clause was not necessary to the decision.
The court has written in many cases that an enrolled bill duly signed by the presiding officers and the Governor may not be impeached by the journal of either house. Shanks v. Julian, 213 Ky. 291, 280 S.W. 1081 (1926) 1085. Judge Dietzman, in Shanks, above, pointed out that to "impeach" means to bring discredit on the bill. Thus this principle that a bill cannot be impeached is not as formidable and inflexible as it sounds. The court, in Golightly v. Bailey, 218 Ky. 794, 292 S.W. 320 (1927) 321, cites the rule that mere clerical errors will be corrected by the court whenever necessary to carry out the intention of the legislature as gathered from the entire act. In that case the court referred to what the House Journal showed in the repealing of certain statutes, as contrasted with the enrolled bill, and the court upheld as law the bill as shown in the history contained in the House Journal, as against the conflicting enrolled bill. The court was saying in effect that to make effective what it is plain the legislature intended to do by judicial interpretation is not impeaching the bill. The court is merely determining the legislative will.
The journals may be resorted to where the legislation is ambiguous or its construction doubtful, in order to ascertain the intention of that body. Certainly this rule is broad enough to encompass the clearing up of mere clerical error. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478, 153 S.W.2d 986 (1941) 989. As Commissioner Stanley wrote, in Fidelity Columbia Trust Co. v. Meek, 294 Ky. 122, 171 S.W.2d 41 (1943), "The intent of the lawmakers is the soul of the statute and the search for this intent we have held to be the guiding star of the court." (Emphasis added).
It is our opinion, in considering that the Senate Journal shows beyond any reasonable doubt that the Senate Bill in question was enacted with the inclusion of subparagraph (2) of Section 4 [medical labs operated by physicians for their own patients] and that its deletion from the enrolled bill was a mere clerical error, that the subject subparagraph (2) should be shown by the publishers of the Kentucky Revised Statutes as included in the exceptions given under KRS 333.040.
Further, it is our opinion that the reviser could include this item in her reviser's bill for correcting manifest clerical error, as authorized pursuant to KRS 7.136. This clerical error is as manifest as you could ever find. The reviser's bill would not "change" the law. It would show what the law really is as passed by the legislature. The reviser's bill on this point would show the explict recognition by the present General Assembly of the true bill as passed in 1968. See also KRS 7.120 and 7.123.
If this error is allowed to stand, it would amount to an effective amendment made by the Chief Clerk of the Senate. In other words, it would be the Beauchamp amendment. We do not believe the courts would allow the Beauchamp amendment to prevail.