(dissenting): The appendix to the Kansas School Laws, 1937, issued by the state superintendent, shows that on that date there were forty counties operating under the Barnes act, twenty-three counties operating under the community high-school law, and that thirty-nine counties were designated as tuition counties.
The statutes provide different rates for high-school tuition. In all counties operating under the provisions of sections 72-3801, 72-3802 and 79-1960, commonly known as “tuition counties,” the rate of tuition is three dollars per week. The rate of tuition in counties operating under the Barnes law, as.provided by sections 72-3013 and 72-3014, is two dollars per week. A rate of two dollars per week also applies in the counties operating under the community high-school law. See section 72-2505.
Such appears to have been the state of the law in 1929, when chapter 239 of the Laws of 1929 was enacted. Sections 1 and 2 of chapter 239 appear in G. S. 1935 as sections 72-3806 and 72-3807 under the caption “Equalization of Tuition.”
The title to the act reads: “An act relating to the payment of tuition of certain pupils attending high school in counties other than that of their residence.”
Section 16, article 2, of the constitution of Kansas, provides:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
What was the subject of the bill as expressed in the title? The only subject mentioned is the payment of tuition. Is there a word or syllable in the title of the act that would suggest to any member of the legislature that the procedural steps set forth in section 72-3806 were up for consideration? I find none. As the procedural re*713quirements set forth in the section are not referred to in the title, it is submitted that the section is void under the constitutional provision that requires the subject to be clearly expressed in the title.
Section 72-3806 provides that “Any pupil or pupils desiring to attend a high school located in any county adjacent to the county of the residence of such pupil or pupils” shall make an application, etc. The language of the section is broad enough to cover students whether in a Barnes law county or any other county. If valid, it would strike down a part of the procedural steps required' in section 72-3014 and substitute the requirements in section 72-3806. Thus it must be either an amendment or an out-and-out repeal of 7.2-3014. No contention is made that it repeals that section. Is it a valid amendment? Clearly it does not comply with the amendment clause in the provision of the constitution above quoted.
May section 72-3806 be classed as supplemental legislation?
In 59 C. J. 873 it is stated:
“Supplemental legislation complete in itself and not requiring reference lo any other law to determine its scope and meaning, which usually consists in the addition of a section or sections to existing statutes, and the effect of which is not to change in any way the provisions of the latter, but merely to extend the operation thereof to other subjects, give additional power to enforce its provisions, or to provide for conditions not covered thereby, is not amendatory legislation within the prohibition of constitutional provisions which forbid amendment by reference to title only, and require the act or statute amended to be set out at length, or which provide that no act shall be passed which shall provide that any existing law, or any part thereof, shall be made, or deemed a part of the act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act. . . .”
In Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, 246 Pac. 681, it was held that section 72-3014 was a broadening of the provisions of 72-3013. The new provisions in 72-3014 were not in derogation of any of the provisions in 72-3013. The later section was in harmony with the prior section; its effect, therefore, was merely to extend the operation of 72-3013 to other subjects. It was supplemental and not amendatory legislation.
Here we are confronted with a.very different situation. Section 72-3806 by its terms applies to “any pupil or pupils” in “any county” who attends a high school in a county adjacent to the county of the residence of such pupil. It is therefore in direct conflict with the requirements in 72-3013 and 72-3014 as to cross-county-line students. It strikes down those requirements — sets out new *714specifications. The majority opinion is the final proof of that fact. It is submitted that 72-3806 must operate, if it operates at all, as an amendment to the former sections — and being an amendment, it is void. (See Annotation, 67 A. L. R. 564.)
Another point deserves attention. As stated, chapter 239 embraced two sections, now appearing in the statute as sections 72-3806 and 72-3807. These were related sections, and while yoked together, set forth a workable legislative plan. The latter section referred to the Barnes act and specified the manner in which the tuition should be paid. As this section was held void, does the remaining part of the enactment stand? Under the rule announced in Smith v. Haney, 73 Kan. 506, 85 Pac. 550, can it be said that the legislature would have passed 72-3806 independently of 72-3807? If the purpose of the act was the equalization of tuition, as stated in the statute, the first section standing alone is meaningless.
The record shows that both Coffey and Woodson counties operate under the Barnes law. Section 72-3807 abrogated the method of paying tuition as provided in the Barnes law, and since that section is invalid, and section 72-3806 is to be sustained, what provision is there for the payment of tuition of pupils situated as those in the instant case?
The question is one of vital importance in the administration of the school system of the state. Since section 72-3807 was held unconstitutional, it seems that the state superintendent of public instruction has not attempted to enforce the provisions of section 72-3806. (See Circular 104 McC., Department of Education.) The apparent conflict in the provisions in sections 72-3014 and 72-3806 would seem to justify this administrative ruling.
But there is still another reason why the judgment should be affirmed. Plaintiff’s action was based on section 72-3014 — the answer of the defendant was that defendant did not have in its general fund any money credits or funds available for the payment of the claims alleged, and further pleaded the cash-basis statutes. Compliance with section 72-3806 was not an issue in the case. The trial judge gave an oral decision set out in the record, and that section was not mentioned or discussed. The record fails to show that this question was presented or considered by the trial court.
Section 72-3806 was first invoked on appeal. Tabula in naufragio. Ordinarily only matters presented to a trial court for decision are reviewable on appeal. (Koshka v. Railroad Co., 114 Kan. 126, 217 *715Pac. 293; Tucker v. Raney, 145 Kan. 256, 65 P. 2d 329.) No reason has been suggested why this settled rule should not be applied in this case.
The legislative history of chapter 239, as set forth in the opinion of the court, shows the legislature has steadfastly refused to repeal section 72-3014. As the evidence showed that plaintiff had complied with that section, I think the judgment should be affirmed.
Smith, J., joins in this dissenting opinion.