State v. GPrice

• Decision Date: 30 June 1910
• Citation: 129 S.W. 650,229 Mo. 670
• Parties: THE STATE, Appellant, v. GEORGE WASHINGTON PRICE
• Court: Missouri Supreme Court

129 S.W. 650

229 Mo. 670

THE STATE, Appellant, v. GEORGE WASHINGTON PRICE

Supreme Court of Missouri, Second Division

June 30, 1910

Appeal from Atchison Circuit Court. -- Hon. William C. Ellison Judge.

Reversed and remanded.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The indictment is founded upon section 2 of the act, and contains the allegations of the offense in certain, concise and specific language. No legal objections can be alleged as to the form and substance of the indictment. It follows the statute and is sufficient. (2) The Act of May 10, 1907, Laws 1907, pp. 231, 232, prohibiting persons running order houses from delivering intoxicating liquors to persons having no license to deal in same, and prohibiting the keeping, storing for or delivering to another person intoxicating liquors in local option counties, is presumed to be constitutional. If there is a doubt existing as to the constitutionality of the act, it must be resolved in favor of its validity. Ex parte Loving, 178 Mo. 203. Every presumption is to be indulged in favor of the validity of the act. State ex rel. v Aloe, 152 Mo. 477; State v. Cantwell, 179 Mo 261; State ex rel. v. Railroad, 48 Mo. 471; State ex rel. v. Pike County, 144 Mo. 280; Kesleart v. Shoer, 134 Mo. 10; County v. Griswold, 58 Mo. 192; State v. Walbridge, 119 Mo. 383; State v. Able, 65 Mo. 357; Manker v. Faulhaber, 94 Mo. 430; Endlich on Int. of Stat., sec. 178, p. 246; Railroad v. Van Horn, 57 N.Y. 473; French v. Teschemaker, 24 Cal. 518; Attorney-General v. Eau Claire, 37 Wis. 400; State ex rel. v. Shelton, 136 Mo. 429; Brown v. Buzan, 24 Ind. 194; Slack v. Jacob, 8 W.Va. 612. (3) One of the provisions in section 28, article 4, of the Constitution, is to prevent the vicious practice of conjoining in the same bill by the Legislature incongruous matter and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title. State ex rel v. Heege, 135 Mo. 119; State ex rel. v. Ranson, 73 Mo. 86; State ex rel. v. County Court, 102 Mo. 537; Indemnity Co. v. Jarman, 187 U.S. 206; State v. County Court, 128 Mo. 427; State ex rel. v. Bronson, 115 Mo. 271; State v. Miller, 45 Mo. 495. Another acknowledged reason for section 28, article 4, of the Constitution, was to have the title to an act indicate the general contents of the bill, and contain but one general subject. It might be expressed in a few or greater number of words, if they did not mislead as to what the bill contained, and were not designed as a cover to vicious and incongruous legislation. St. Louis v. Weitzel, 130 Mo. 616; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller, 100 Mo. 439; Cooley's Const. Lim., 175; People v. Mahoney, 13 Mich. 495; State v. Bengsch, 107 Mo. 105; State v. Bockstruck, 136 Mo. 335; Bishop's Stat. Crimes (2 Ed.), sec. 36a. (4) The first part of the title to this act, to-wit, "to prohibit persons running order houses from delivering intoxicating liquors to persons having no license to deal in same," applies to the political subdivisions of the State, or the whole State, as the same is divided into political subdivisions. Section one of the act applies wholly to the entire State. The remaining portion of the act, to-wit: "and to prohibit the keeping, storing for or delivering to another person intoxicating liquors in local option counties, and providing penalties," is followed by section two, and appertains to the political subdivisions of the State wherein the provisions of the Local Option Law have been legally adopted. The act, as the title and text thereof show, was to prohibit the operation of the "order house business," that is to say, to prohibit the ordering for, receiving, storing, keeping and delivering intoxicating liquors throughout the entire State, and to prohibit the keeping, storing for or delivering to another person intoxicating liquors in those subdivisions of the State that have adopted Local Option Law. The title of the act is germane to the context of the act. Under the first section of the law it includes all of the political divisions of the State, and the title is germane thereto. Under the second section of the law is included those political subdivisions having adopted local option. State ex rel. v. Miller, 100 Mo. 444; Ewing v. Hoblitzelle, 85 Mo. 65. The provisions of this act fairly relate to the same subject, ordering, receiving, keeping, storing and delivering intoxicating liquors in both local option and non-local option political subdivisions of the State, and, furthermore, all the provisions of the act have a natural connection with the same subject, to-wit, intoxicating liquors, and all the provisions are the incidents and means of accomplishing the purpose of the statute; therefore, as the subject has a natural connection with all the provisions of the act, and the same is clearly expressed in the title, then the act is valid. State v. Morgan, 112 Mo. 212; State v. Doerring, 194 Mo. 409; State v. Bennett, 102 Mo. 356; Brandon v. State, 16 Ind. 197. (5) The complaint that the indictment, which is brought under section 2 of the act, does not negative the provisions contained in section 3 of the act, is not well taken. When an exception, describing and defining an offense, exempts a class referred to in the operation of the statute, the indictment need not negative a proviso nor the exception. State v. O'Brien, 74 Mo. 49; State v. Doerring, 194 Mo. 415. The exceptions in this act are found in a distinct and separate section from those that describe the offense, and, therefore, are not to be negatived. (6) Sections 1, 2 and 3 of this Act are not uncertain, indefinite, inconsistent nor irreconcilable in their provisions. Section 1 applies to the whole State, and section 2 only to local option subdivisions of the State. The pleader may use his privilege of charging under either section in local option political subdivisions of the State, but where local option has not been adopted, the pleader would be confined to section 1. The offenses in section 2 are included in section 1, and section 1 includes two additional offenses beyond those enumerated in section 2, that is, "ordering for" and "receiving." Gabbert v. Railroad, 171 Mo. 108; 1 Story, Const., 541; Black on Inter. of Laws, 28. (7) A part of an act may be unconstitutional without rendering the whole act bad. Shively v. Lankford, 174 Mo. 549; Dent v. Railroad, 83 Mo. 496.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

At the May term, 1909, of the circuit court, the grand jury of Atchison county returned in open court the following indictment:

"The grand jurors for the State of Missouri, summoned for the body of Atchison county, impaneled, charged and sworn, upon their oath present that on the 10th day of May, 1902, the act of the Legislature of the State of Missouri, approved April 5, 1887, known as the Local Option Law, was duly adopted in said Atchison county, and has been continuously in force as the law of the State of Missouri, in said county, from that date to the present time, and still remains in force as the law of the State of Missouri in said county. That afterwards, to-wit on or about the 10th day of May, 1909, and while said Local Option Law was in force in said county one G. Washington Price did then and there unlawfully keep and store for and did then and there deliver to another person, to-wit, Jim Tillman, certain intoxicating liquors, to-wit, one quart of whiskey, one quart of lager beer and one quart of brandy; he, the said G. Washington Price, not then and there being a licensed dramshop keeper, and he, the said G. Washington Price not being then and there by law authorized to sell liquor as a wholesaler, and the said James Tillman not then and there being a person licensed to deal in same, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State."

To this indictment the defendant interposed the following demurrer, at the September term of said court:

"Now comes defendant and says the indictment in this cause is insufficient in law, to state a criminal offense in the following respects:

"1st. The Act of 1907 (Laws of 1907, page 232) on which the indictment was based, is a void act, under section 28 of article 4 of the Constitution, in that the title of the act is inconsistent with and repugnant to the first section of the act.

"2nd. The indictment omits to allege or charge that the intoxicating liquors were not ordered by the defendant for or delivered to James Tillman for his own or family use, and was not to be sent, or was not sent, direct to the person ordering the same.

"3rd. By section 3 of said act, a person may, in a local option county, order liquors for his own or family use, when sent direct to him, which necessarily implies that another person in such local option county may lawfully deliver the liquors to the person ordering the same. The indictment does not negative this state of facts.

"4th. The said act is so vague, uncertain, indefinite, inconsistent and irreconcilable in its provisions as to be incapable of enforcement. If under section 3 a person may, in a local option county, order liquor for his own or family use, from another in that local option county, then that other in such local option county may sell and deliver the liquor to him.

"This construction would, in effect, practically repeal the Local Option Law. No such object was intended or expressed in the title of the act. To avoid this construction the proviso of section 3 must be rejected, which would make of section 2 absolute prohibition, even as against druggists selling and delivering liquors under a...