Board of Commissioners of the County of Marion v. Scanlan

• Decision Date: 07 June 1912
• Docket Number: 22,205
• Citation: 98 N.E. 801,178 Ind. 142
• Parties: Board of Commissioners of the County of Marion v. Scanlan
• Court: Indiana Supreme Court

98 N.E. 801

178 Ind. 142

Board of Commissioners of the County of Marion v. Scanlan

No. 22,205

Supreme Court of Indiana

June 7, 1912

From Superior Court of Marion County (84,382); Roscoe O. Hawkins Special Judge.

Proceedings by the Board of Commissioners of the County of Marion against James Scanlan to suspend or revoke a license granted to him for the sale of intoxicating liquors. From a judgment for defendant, the Board of Commissioners appeals.

Reversed.

Ernest T. Brown and George Shirts, for appellant.

William N. Harding, Alfred R. Hovey and Omer U. Newman, for appellee.

OPINION

Myers, J.

The Board of Commissioners of the County of Marion, Indiana, at its July term, 1911, made and specified on its own motion certain charges against appellee, by a proceeding entitled "In the matter of charges against James Scanlan Licensee," directed "To James M. Scanlan, 38 and Kissel Sts City."

The charges are as follows: "On complaint lodged with the Board of Commissioners of Marion County, Indiana, the following separate charges are hereby preferred against you pursuant to Section 19 of a law enacted by the General Assembly of Indiana at its Regular Session of 1911, and entitled 'An act concerning intoxicating liquors', approved March 4th, 1911: 1. That on the 12th day of July, 1911, you were tried, plead guilty and fined in the Criminal Court of Marion County, Indiana, of having sold intoxicating liquors at an hour when the sale of such liquors is prohibited by law, all as provided by section 8326 Revised Statutes of 1908. 2. That you were, in fact, guilty on the 23d day of March, 1911, of selling intoxicating liquors at an hour when such sale is prohibited by law all as provided in Section 8326 Revised Statutes of 1908, being section 3 of the Nicholson Law. The Board will hear evidence on said charges beginning at nine o'clock a. m. Tuesday, on the 8th day of Aug. 1911, at its office at the Court House of Marion County, Indiana. You are hereby commanded to take notice of the time and place of said hearing and show cause, if any, why your license to sell intoxicating liquors at retail should not be suspended or revoked as the case may be." These charges were signed by the persons comprising the board of commissioners as such. A copy of these charges was served on appellee. On hearing before the board, appellee was found guilty, and the judgment was that his license be suspended for a definite period, from which judgment he appealed to the Superior Court of Marion County. In that court a demurrer was addressed to the complaint and charges, on the ground that the complaint does not state facts sufficient to constitute a cause of action against this defendant, the grounds of which here presented, are as follows: (a) That no verified complaint was filed in the office of the auditor of Marion county, Indiana, by a voter of the city or the township in which the license was issued. (b) The act of the General Assembly of the State of Indiana, approved March 4, 1911 (Acts 1911 p. 244), is unconstitutional, void and of no effect, because the title thereof is repugnant to article 4, § 19, of the Constitution of the State of Indiana, and that the subject embraced in the sections under which this proceeding is instituted is in noway referred to or embraced within the title to the act in which they are incorporated, the title to said act being only as follows "An Act concerning intoxicating liquor." (c) That there is no right of appeal.

The demurrer was sustained. Appellant excepted, and refusing to plead further, electing to abide by such ruling, the court rendered final judgment thereon that the board of commissioners take nothing by the action, and that appellee recover from the board his costs.

The error assigned is that the court below erred in sustaining this demurrer.

The propositions of appellant are (a) that under the act of 1911, supra, boards of commissioners have the power of their own motion to prefer and try charges against a licensed saloon-keeper as to alleged violations of the law, and on conviction to suspend or revoke the license, and (b) that the charges here made are sufficient.

Appellee's position is substantially that taken by the different specifications of his demurrer.

The point is vigorously presented by appellee's learned counsel, that the title of the Proctor law "is so general that it states neither the subject of the law, nor even the object sought to be accomplished," and "that the means by which the object of the act is to be accomplished are wholly lacking, and that the title gives no information of the statutory means to be used to accomplish the object of the legislature."

The title of the act is "An Act concerning intoxicating liquor."

It is not necessary that all matters connected with, or germane to the subject of an act shall be embraced in the title. It is sufficient that the title shall "embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title" (Const. Art. 4, § 19), and that it is of such character as fairly to apprise the legislators and the public in general of the subject-matter of the legislation, so as to lead to inquiry into the body of the bill, or indicate some particular branch of legislation as a head under which the particular provisions of the act may reasonably be looked for, and it need not set out all the matters properly connected with, or germane to the subject-matter of the act. Kaufman v. Alexander (1909), 173 Ind. 136, 88 N.E. 502; Knight & Jillson Co. v. Miller (1909), 172 Ind. 27, 87 N.E. 823, 18 Ann. Cas. 1146; Mull v. Indianapolis, etc., Traction Co. (1907), 169 Ind. 214, 81 N.E. 657; Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, 74 N.E. 985; Baltimore, etc., R. Co. v. Town of Whiting (1903), 161 Ind. 228, 68 N.E. 266; Republic Iron & Steel Co. v. State (1903), 160 Ind. 379, 66 N.E. 1005, 62 L. R. A. 136; State v. Bailey (1901), 157 Ind. 324, 61 N.E. 730, 59 L. R. A. 435; Isenhour v. State (1901), 157 Ind. 517, 62 N.E. 40, 87 Am. St. 228; Parks v. State (1902), 159 Ind. 211, 64 N.E. 862, 59 L. R. A. 190; Swartz v. Board, etc. (1902), 158 Ind. 141, 63 N.E. 31; Clarke v. Darr (1901), 156 Ind. 692, 60 N.E. 688; Maule Coal Co. v. Partenheimer (1900), 155 Ind. 100, 55 N.E. 571, 57 N.E. 710; Chicago, etc., R. Co. v. State, ex rel. (1899), 153 Ind. 134, 51 N.E. 924; State v. Arnold (1895), 140 Ind. 628, 38 N.E. 820; State, ex rel., v. Kolsem (1891), 130 Ind. 434, 29 N.E. 595, 14 L. R. A. 566. Under titles such as "An act concerning highways," see Smith v. Board, etc. (1910), 173 Ind. 364, 90 N.E. 881; South East, etc., R. Co. v. Evansville, etc., R. Co. (1907), 169 Ind. 339, 82 N.E. 765, 13 L. R. A. (N. S.) 916, 14 Ann. Cas. 214, and Bright v. McCullough (1866), 27 Ind. 223; "An act concerning drainage," Kaufman v. Alexander, supra, and Thorn v. Silver (1910), 174 Ind. 504, 89 N.E. 943, 92 N.E. 161; "An act regulating descents and the apportionment of estates," Stiers v. Mundy (1910), 174 Ind. 651, 92 N.E. 374; "An act defining certain felonies and prescribing punishment therefor," Peachee v. State (1878), 63 Ind. 399; "An act concerning public offenses and their punishment," Lewis v. State (1897), 148 Ind. 346, 47 N.E. 675; "An act to provide for the valuation and assessment of the real and personal property, and the collection of taxes in the State of Indiana," State, ex rel., v. Board, etc. (1866), 26 Ind. 522; "An act for the incorporation of railroads," Shipley v. City of Terre Haute (1881), 74 Ind. 297. See, also, Chicago, etc., R. Co. v. State, ex rel. (1899), 153 Ind. 134, 142, 51 N.E. 924. "General provisions in relation to railroads," 1 R. S. 1852 p. 421; "An act concerning municipal corporations," Acts 1905 p. 219; "An act concerning public offenses," Acts 1905 p. 584--and many others. All the details of acts attendant on the general subject have been held germane to, and embraced under the title. Kaufman v. Alexander, supra.

The word "subject" in the Constitution (article 4, § 19) indicates the thing about which the legislation is had, and the word "matters" the incident or secondary things necessary to provide for its complete enforcement. Mull v. Indianapolis, etc., Traction Co., supra; Grelle v. Wright (1896), 145 Ind. 699, 146 Ind. 699, 44 N.E. 1119; State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L. R. A. 313; Zapf v. State (1896), 145 Ind. 696, 146 Ind. 696, 44 N.E. 1119; Dinnin v. State (1896), 145 Ind. 697, 44 N.E. 1119; Hingle v. State (1865), 24 Ind. 28.

Under what more leading subject would one look, to expect to find enactments to carry liquor legislation into effect, than under a title "An act concerning intoxicating liquor," as broad enough to cover every branch of licensing and regulating the liquor traffic.

Besides the body of the act (§ 28) discloses that it is a cumulative and supplemental act, except as it is in actual conflict with other statutes, and the act of 1875 (Acts 1875 p. 55), the Nicholson law (Acts 1895 p. 248), the Moore law (Acts 1905 p. 7) and the act of March 16, 1907 (Acts 1907 p. 689), have quite full titles on the subject of licensing and regulating.

It has been held that the repeal of a former law by the enactment of a new one is indicated by a title apt for the new legislation, without the subject of repeal being mentioned in the title. Gabbert v. Jeffersonville R. Co. (1858), 11 Ind. 365.

We have no difficulty in adjudging the title of the act as sufficient, and we are advised by the briefs that this view was entertained by the learned trial judge.

It appears from the legislative journals, that when senate bill No. 244 came to the house, § 19 of the bill was as it now appears, except the third proviso to the section.

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