Cardillo v. People

• Decision Date: 17 July 1899
• Citation: 58 P. 678,26 Colo. 355
• Parties: CARDILLO v. PEOPLE.
• Court: Colorado Supreme Court

58 P. 678

26 Colo. 355

CARDILLO v. PEOPLE.

Supreme Court of Colorado

July 17, 1899

Error to district court, Pueblo county.

Rafael Cardillo was convicted of unlawfully keeping open a saloon on Sunday, and brings error. Affirmed.

Arrington & McAliney and C. E. & F. Herrington for plaintiff in error.

David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen and Dan B. Carey, Asst. Atty. Gen., for the People.

CAMPBELL C.J.

The defendant was proceeded against in the district court of Pueblo county under an information charging him with keeping open, and failing to keep closed, his saloon, on the first day of the week, commonly called 'Sunday.' He was found guilty, and sentenced to pay a fine, from which he has appealed to this court. The section of the statute upon which the prosecution is based is as follows:

'Sec 2. Every saloon, bar or other place where spirituous, vinous, malt or other liquors are kept, sold, bartered, exchanged and given away or are kept, sold, bartered, exchanged or given away, shall be closed and kept closed from twelve o'clock at midnight until six o'clock in the morning of every day in the week, except Sunday or the first day of the week, and on Sunday or the first day of the week as aforesaid the said places hereinbefore in this section mentioned shall be closed at twelve o'clock at midnight on Saturday of each and every week and kept closed until six o'clock in the morning of the following Monday of each and every week; that during the time and times herein specified in which the said saloons, bars, and other places are to be kept closed, no liquor of any kind whatsoever shall be sold, bartered, exchanged or given away, and no person or persons whomsoever, other than those connected with the business of carrying on or keeping the said saloon, bar or other place or places as aforesaid shall be permitted to be or remain in or around the same, but all and every such person or persons shall be expelled and put out of the same. Any and every person convicted of violating any of the provisions of this section shall be punished by a fine of not less than one hundred nor more than five hundred dollars or imprisoned not less than six months nor more than eighteen months or by both such fine and imprisonment at the discretion of the court; and if it shall appear that a person or persons not employed in and about the business as aforesaid, shall be permitted to remain in the said saloon or other place or places as aforesaid, such fact shall be prima facie evidence in favor of the guilt of the accused party or parties.' Sess. Laws 1891, p. 315.

The title reads, 'An act to regulate the keeping of saloons and other drinking places or resorts, and imposing penalties for a violation of such regulations.' The principal questions discussed by counsel for plaintiff in error may be grouped under the following heads: First, the statute of which the foregoing section is a part contravenes section 21 of article 5 of the constitution, in that the subject of the act is not clearly expressed in the title; second, that portion of the foregoing section making certain facts prima facie evidence of guilt violates paragraph 8 of section 25 of article 5, which says, 'The general assembly shall not pass local or special laws' (paragraph 8) 'changing the rules of evidence in any trial or inquiry'; third, the penalty prescribed is excessive, within the meaning of section 20 of article 2 of the constitution, which ordains 'that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted'; fourth, the court below, both in its instructions and in its ruling upon the evidence, erred in its interpretation of the statute; fifth, the evidence is insufficient to sustain the verdict.

1. The contention of defendant's counsel is that the act upon which the prosecution is based is unconstitutional, because its subject-matter is not clearly expressed in its title. The position of counsel can best be shown by briefly summarizing their argument. It may be divided into three heads: (a) The meaning of 'saloon' does not necessarily indicate a place where intoxicating liquors are sold, and consequently the use of that word in the title is not any intimation of the subject-matter that is contained in the act; (b) if 'saloon' legally designates a place where spirituous and other liquors are kept and sold, still the title is insufficient, because the partial prohibition or regulation of the sale of such commodity, which is the thing legislated about,--that is, the chief matter covered by the legislation,--is a different thing from the regulation of the place where such commodity might be kept or sold, which is the only subject expressed in the title, but only incidentally treated of in the act; (c) if 'saloons' comprehends places where liquors are kept and sold, this title, nevertheless, is false and deceptive,--false, because, while speaking of saloons generally, the body of the act singles out only places where intoxicating liquors are sold; and deceptive, because, on reading it, one would not understand that the body of the act was to have so limited an effect. According to the definition of Webster and other lexicographers, a 'saloon' does not necessarily indicate a place for the sale of even liquid refreshment. The commonly accepted definition is 'Saloon. (1) A spacious and elegant apartment for the reception of company or for works of art; a hall of reception, esp. a hall for public entertainments or amusements; a large public room or parlor; as, the saloon of a steamboat. 'The gilded saloons in which the first magnates of the realm * * * gave banquets and balls.' Macaulay. (2) Popularly, a public room for specific uses; esp. a barroom or grogshop; as, a drinking saloon; an eating saloon; a dancing saloon.' We think, however, this argument is not sound, as we shall proceed to show. One of the definitions of 'saloon' found in the new Century Dictionary is 'a place where intoxicating liquors are sold and drunk; a grogshop.' In our own statutes is found the following: 'A saloon or grocery shall be deemed to include all places where spirituous or vinous liquors are sold by quantities less than one quart.' 2 Mills' Ann. St. § 2834 (Gen. St. 1883, § 2107). The word 'saloon' has been used in the sense of liquor saloon in these and other places in our statutes: Sess. Laws 1861, pp. 70, 71; Rev. St. 1868, pp. 425, 426; 2 Mills' Ann. St. §§ 2830-2835, 2837 (Gen. St. 1883, §§ 2103-2108, 2110); Sess. Laws 1885, p. 174. In the cases cited by counsel in support of their claim as to the meaning of the word 'saloon,' it will be found, upon an examination that what they decide is that 'saloon' does not necessarily designate a house for retailing or supplying spirituous liquors, and, while the word is sometimes used in that sense, it has not acquired the legal signification of a house kept for retailing intoxicating liquors, to the exclusion of any other meaning, as given by the lexicographers. In other words, the term has different meanings, and the meaning it has in a given case depends, among other things, upon the context. This is apparent from an examination of the cases, some of which are here given: Early v. State, 23 Tex. App. 364, 5 S.W. 122; State v. Mansker, 36 Tex. 364; City of Clinton v. Grusendorf, 80 Iowa 117, 45 N.W. 407; Kitson v. Mayor, etc., 26 Mich. 326; Goozen v. Phillips, 49 Mich. 7, 12 N.W. 889; Mt. Pleasant v. Vansice, 43 Mich. 361, 5 N.W. 378; Snow v. State, 50 Ark. 557, 9 S.W. 306. Section 4187, 2 Mills' Ann. St. (Gen. St. 1883, § 3143), reads: 'All general provisions, terms, phrases and expressions, used in any statute, shall be liberally construed, in order that the true intent and meaning of the general assembly may be fully carried out.' As showing that, in the title now before us, 'saloons' was not used generically, are the words, 'and other drinking places or resorts.' These, at least, suggest that the saloons to be legislated about are those where drinking is carried on. And when considered in the light of one of the authorized definitions, and that the word has been employed in the various statutes in this state as synonymous with places where intoxicating liquors are kept and sold, we are satisfied that, in this title, the term 'saloons' is used in the sense of a barroom or grogshop or drinking saloon kept for supplying intoxicating liquors. See, also, in favor of this construction, McDougall v. Giacomini, 13 Neb. 431, 14 N.W. 150.If, however, this be so, as we have decided it is, our...