Brunswick-Balke-Collander Co. v. Evans

• Decision Date: 03 January 1916
• Docket Number: 6940.
• Citation: 228 F. 991
• Parties: BRUNSWICK-BALKE-COLLANDER CO. v. EVANS et al.
• Court: U.S. District Court — District of Oregon

228 F. 991

BRUNSWICK-BALKE-COLLANDER CO. v. EVANS et al.

No. 6940.

United States District Court, D. Oregon.

January 3, 1916

W. T Hume, of Portland, Or., for complainant.

Walter H. Evans, Dist. Atty., and George Mowry, Deputy Dist. Atty both of Portland, Or., and Joseph M. Devers, Dist. Atty., of Eugene, Or., for defendants.

Before GILBERT, Circuit Judge, and WOLVERTON and CUSHMAN, District judges.

WOLVERTON District Judge.

This is a suit to enjoin the enforcement of what is styled the Sunday closing law. The complainant represents itself as engaged in the manufacture and buying and selling of billiard tables and bowling alleys, and their furnishings and equipments, and alleges that its business within the state would be seriously and irreparably affected by an enforcement of the law. The defendants consist of divers prosecuting attorneys and sheriffs of the state of Oregon, who, it is further alleged are enforcing and threatening to enforce the law. The law is claimed to be unconstitutional, and therefore void and inoperative, for several reasons, which will be discussed later.

First let us take a survey of the history of the statute complained of. By an act of the Legislative Assembly of the state of Oregon, approved October 19, 1864 (see footnote Deady and Lane's Code, p. 436), entitled 'An act to provide a Code of Criminal Procedure, and to define crimes and their punishment,' a Code of Criminal Procedure was adopted, consisting of 53 chapters and 731 sections.

'If any person shall keep open any store, shop, grocery, ball alley, billiard room, tippling house, or any place of amusement, or shall do any secular business or labor, other than works of necessity or mercy, on the first day of the week, commonly called Sunday, or the Lord's day, such person, upon conviction thereof, shall be punished by fine not less than five, nor more than fifty dollars. The following are deemed works of necessity:

'1. The buying and selling of meats, fish and milk at retail, before nine o'clock in the morning;

'2. The buying and selling drugs and medicines at retail or upon prescription;

'3. The selling of food, to be eaten on the premises where sold; and

'4. The keeping open of barber shops, and laboring at such trade until ten o'clock in the morning.'

By an act approved December 18, 1865, entitled 'An act to amend an act entitled 'An act to provide a Code of Criminal Procedure, and to define crimes and their punishment,' approved October 22, 1864,' the Legislative Assembly made the following declaration:

'Be it enacted by the Legislative Assembly of the state of Oregon:

'Section 1. That section 653 of the above entitled act be and the same is hereby repealed and the following is enacted in place thereof:

''Sec. 653. If any person shall keep open any store, shop, grocery, ball alley, billiard room, or tippling house, for the purpose of labor or traffic, or any place of amusement, on the first day of the week, commonly called Sunday or the Lord's day, such person upon conviction thereof, shall be punished by a fine, not less than five, nor more than fifty dollars:

"Provided, that the above provision shall not apply to the keepers of drug stores, doctor shops, undertakers, livery stable keepers, barbers, butchers and bakers; and all circumstances of necessity and mercy may be pleaded in defense, which shall be treated as questions of fact for the jury to determine, when the offense is tried by jury.''

Sess. Laws 1865, p. 34.

It will be noted that the words 'or shall do any secular business or labor, other than works of necessity or mercy,' contained in the original section, are omitted from the later enactment, and subsections 1, 2, 3 and 4 in the original act are superseded by the proviso in the later enactment. When Bellinger & Cotton's Code was compiled, section 653 became section 1968. By an act filed in the office of the secretary of state February 24, 1903, section 1968, B. & C. Comp. was amended, the amendment consisting in omitting the word 'barbers' from the proviso and including 'theaters' therein. This section as amended is now known as section 2125, Lord's Oregon Laws. This stands as the statute at the present time.

It is first urged with emphasis that the amendatory act of December 18, 1865, was adopted in violation of section 20, art. 4, of the Constitution of Oregon, in that the subject-matter of the act was not expressed in the title.

It does not seem to be seriously questioned that the original title for the adoption of the Code of Criminal Procedure was sufficient, as properly expressing the subject-matter of the act, although it dealt with practically the whole category of crimes, and the manner in which prosecution might be had and punishment enforced. True, the subject-matter in such a title would be expressed in a very general way, but nevertheless it would be described in the title. If it were held that such a title was insufficient for the purposes of the act, a needless amount of detail in legislation would be entailed, and to no practical purpose. But enactments of the kind are upheld by the courts, and, we think, properly. In re Donnellan, 49 Wash. 460, 95 P. 1085; Cook & Plunkett v. Marshall County, 119 Iowa, 384, 93 N.W. 372, 104 Am.St.Rep. 283.

Now, the title being sufficient for an original act, it ought to be sufficient to amend by. As is said in State v. Phenline, 16 Or. 107, 109, 17 P. 572, 574:

'Amending a section of an existing act requires no new title; the same title applies as much to the act as amended as it did to the original one, and the title expresses the subject of it, unless there has been a clear departure and complete change of substance from the original.'

See, also, Northern Pacific Express Co. v. Metschan (Circuit Court of Appeals, 9th Circuit) 90 F. 80, 32 C.C.A. 530.

It has become a practice of the Legislature to amend by mere reference to a section of the Compiled Laws of the state, then setting forth the section as amended, and this practice has been judicially approved, with the restriction only that the subject-matter of the amendment must be such as could have been included in the original act as matter properly connected therewith. Thus it was held in Ex parte Howe, 26 Or. 181, 184, 37 P. 536, 537, Mr. Justice Bean, now of this bench, writing the opinion, that a reference in the title of a legislative act to the particular section of a compilation sought to be amended--

'is a sufficient statement of the subject for a mere amendatory act, and if the provisions of the amendment could have been included in the original act without violating the Constitution, it is valid.'

So it was held in a later case, Murphy v. Salem, 49 Or. 54, 58, 87 P. 532, 533:

'The title of an amendatory act is sufficient if it refers to the particular section it is intended to alter and is not violative of article 4, section 20, of the fundamental law of the state, unless the provisions of the amendment are such as could not have been included in the original act as matters properly connected therewith.'

By section 22, art. 4, of the Constitution, no act can be amended by mere reference to its title, but 'the act revised or section amended' is required to be set forth and published at full length. In determining the sufficiency of the title of an amendatory act, this section must be read in connection with section 20, art. 4, of the Constitution, and if it appears from the matter set forth in the body of the amendatory act that it is germane to the subject-matter of the original act, it would seem, applying the doctrine of the Phenline Case, that it is sufficient. That is to say, the intendment of both these constitutional regulations is subserved if the title of the amendatory act is in effect to amend by the original title, or by section, and the section as amended is set forth and published in full, and the subject-matter thereof is germane to and is expressed in the original title.

The amendatory act of 1865 meets every requirement of these constitutional provisions as thus interpreted. True, the title would have been more definite and certain had it read 'An act to amend section 653 of an act entitled an act,' etc. But where reference is had to the body of the amendatory act, and we are apprised by section 22, art. 4, of the Constitution that the section as amended must be set forth in full, then, when read in connection with the title, there can be no further doubt touching the subject-matter involved, and, if that be germane to and is expressed in the title, the title is sufficient.

This much for the title of an amendatory act.

But it is further objected that section 1 of the act purports to repeal section 653, and that this provision for a repeal is nowhere expressed in the title. Reading the section further however, we find it is declared in the same sentence that the 'following' shall be 'enacted in place thereof.' This shows the method which the Legislature adopted for securing the amendment, which was to repeal and re-enact as amended, whereas the usual way is to declare that the law is amended to read 'as follows'-- setting out in full the law as amended. Both methods amount to the same thing. The true purpose was to amend, and the effect of the legislation was to amend. Knights Templars' Indemnity Co. v. Jarman, 187 U.S. 197, 205-257, 23 Sup.Ct. 108, 47 L.Ed. 139. So that, whether the Legislature adopted the one means or the other, the result was the same, and the title, therefore, is not objectionable for not stating that it was an act to repeal. It was sufficient that it stated the true intent, namely, that it was an act to amend. We think the subject-matter of the act was sufficiently expressed in the title, and...