Bush v. City of Indianapolis
| Decision Date | 30 October 1889 |
| Docket Number | 15,150 |
| Citation | 22 N.E. 422,120 Ind. 476 |
| Parties | Bush v. The City of Indianapolis |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Judgment affirmed.
S Claypool, W. A. Ketcham, J. S. Duncan and C. W. Smith, for appellant.
W. L Taylor and H. E. Smith, for appellee.
The Legislature of the State of Indiana, at its last session passed the following act, viz.:
"An act to amend section six (6) of an act entitled 'An act to regulate and license the sale of spirituous, vinous and malt and other intoxicating liquors; to limit the fee to be charged by cities and towns; prescribing penalties for intoxication, and providing for the recovery of damages for injuries growing out of unlawful sales of intoxicating liquors; to repeal all former laws regulating the sale of intoxicating liquors, and all laws and parts of laws coming in conflict with the provisions of this act; prescribing penalties for the violation thereof, and declaring an emergency,' being section 5317 of the Revised Statutes of 1881.
Acting under the permission granted by this act the city of Indianapolis, on the 19th day of June, 1889, passed an ordinance requiring persons desiring to sell intoxicating liquors in the corporate limits of said city to pay a license fee of two hundred and fifty dollars to said city in order to procure a license for that purpose. The appellant having procured a license from the board of commissioners of Marion county, authorizing him to retail intoxicating liquors within the corporate limits of the city of Indianapolis, acting upon the assumption that the act above set out was unconstitutional, and that section six of the act sought to be amended was still in force, tendered to the proper officer one hundred dollars, the amount required under former city ordinances to procure a city license, and demanded a license to retail intoxicating liquors in said city. Such license being refused he proceeded to retail intoxicating liquors without a city license.
This suit was instituted by the appellee against the appellant to recover the penalty imposed by the ordinance of June 19, 1889, for selling intoxicating liquors within the corporate limits of said city without a city license so to do.
It is earnestly contended by the learned counsel for the appellant that if it was the intention of the Legislature, by the act in question, to amend section six of the act of March 17, 1875, Sp. Acts of 1875, p. 56, it so far departed from the requirements of section twenty-one, article four, of the Constitution of the State, that such intention was utterly futile; while, on the other hand, it is contended by the appellee that in the passage of said act the Legislature did comply strictly with the requirements of said section twenty-one, article four, of the Constitution.
It is now so well established that it requires no argument, or even citation of authorities, that there are three classes of laws which are unconstitutional, viz.:
First. Acts passed by a legislative body relating to matters over which it has no power to legislate.
Second. Acts passed by a legislative body where it neglects to observe the forms required by the Constitution necessary to give such acts validity as laws; and,
Third. Acts passed by legislative bodies which are inhibited by some constitutional provision.
It is not claimed by the appellant that this act falls within either the first or third class, but it is contended that it does fall within the second class.
Section twenty-one, article four, of our State Constitution is as follows: "No act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length." R. S. 1881, p. 20.
This provision is found in the constitutions of Nevada, Oregon, Texas, and Virginia, and provisions of similar import are to be found in the constitutions of Kansas, Ohio, Michigan, Louisiana, Wisconsin, Missouri, and Maryland.
It was formerly held by this court that in order to constitute a valid amendment to a statute, under this constitutional provision, it was necessary not only to set out the section as amended, but also the section to be amended, Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31.
But in the case of Greencastle, etc., Turnpike Co. v. State, ex rel., 28 Ind. 382, these decisions were overruled, and it is now well settled that it is not necessary to set out the section to be amended, and that the constitutional requirement is fulfilled by setting out the section as amended.
In the case of Feibleman v. State, ex rel., 98 Ind. 516, it was held that the section of the Constitution now under consideration required that an act amending a former statute should refer to the title of the act sought to be amended. It must be obvious to every one, however, that this section of the Constitution, as well as all other constitutional provisions, is to be construed in the light of the evil sought to be remedied or avoided.
The Constitution of the State of Michigan contains the following provision: "No law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length." Const. Mich., article 4, section 25.
In the case of People, ex rel., v. Mahaney, 13 Mich. 481, where the construction of this constitutional provision was involved, Judge Cooley said: ...
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