Crabbs v. State, 24126.

• Decision Date: 19 April 1923
• Docket Number: No. 24126.,24126.
• Citation: 139 N.E. 180,193 Ind. 248
• Parties: CRABBS v. STATE.
• Court: Indiana Supreme Court

193 Ind. 248

139 N.E. 180

CRABBS

v.STATE.

No. 24126.^*

Supreme Court of Indiana.

April 19, 1923.

Appeal from Circuit Court, Delaware County; W. A. Thompson, Judge.

Robert Crabbs was convicted for unlawfully keeping and having in his possession intoxicating liquor, and appeals. Reversed, with directions to quash affidavit.

F. Clayton Mansfield, of Muncie, for appellant.

U. S. Lish, Atty. Gen., and Mrs. Edw. F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

This was a prosecution commenced by affidavit filed on the 22d day of October, 1921, in the Delaware circuit court, charging that Robert Crabbs, “on or about the 22d day of October, 1921, at and in the county of Delaware, state of Indiana, did then and there unlawfully keep and have in his possession intoxicating liquor, in violation of the laws of the state of Indiana.”

The defendant made a motion to quash the affidavit, assigning two reasons: First, that the facts stated in the affidavit do not constitute a public offense; second, that the affidavit does not state the offense charged with sufficient certainty. The motion to quash was overruled; and exceptions reserved. Defendant entered a plea of not guilty, and a trial by jury resulted in a verdict of guilty. A motion for a new trial was overruled, and judgment rendered on the verdict, and from such judgment this appeal is taken.

The first question presented is the sufficiency of the affidavit as against the motion to quash.

The affidavit is based on section 4 of chapter 4 of the Acts of 1917, as amended by section 1 of chapter 250 of the Acts of 1921. The contention arises upon the first sentence of section 4, c. 4, of the Acts of 1917. In the act of 1917 this sentence is as follows:

“That after the 2d day of April, 1918, it shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided.”

In the act of 1921 that sentence is amended to read as follows:

“It shall be unlawful for any person to manufacture, transport, possess, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to possess or to keep any intoxicating liquors with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided.”

The title to the act of 1917 is as follows:

“An act prohibiting the manufacture, sale, gift, advertisement, or transportation of intoxicating liquor except for certain purposes and under certain conditions.”

The act of 1921 did not amend this title. Section 5 of the Acts of 1917 provides as follows:

“The provisions of this act shall not be construed to prohibit any person from manufacturing, for his own domestic consumption, wine or cider; or to prohibit the manufacture of vinegar and nonintoxicating cider for use of sale.”

It also contains the following provision:

“Nor shall this act be construed to prohibit a person from giving intoxicating liquor to a guest in his own home which is not a place of public resort.”

This section was amended by the Acts of 1921, by striking out the words “for his own domestic consumption, wine,” and the clause “nor shall this act be construed to prohibit a person from giving intoxicating liquor to a guest in his own home which is not a place of public resort.” There were other changes in the section, but none of them pertinent to the question here at issue.

Section 35 of the Acts of 1917 was not amended by the Acts of 1921, and is as follows:

“Within ten (10) days after the date when this act has become operative, every person except licensed pharmacists, wholesale druggists, manufacturing chemists or public hospitals shall remove or cause to be removed all intoxicating liquors in his possession from the state and failure to do so shall be prima facie evidence that such liquor is kept therein for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of the provisions of this act: Provided, however, that this section shall not apply to alcohol kept for chemical or manufacturing purposes, or to one (1) gallon of intoxicating liquor, other than beer, or twelve (12) quarts of beer, or all wine manufactured for his own domestic consumption kept in his own home for domestic use, held by an individual; and provided further, that any licensed pharmacist, wholesale druggist, manufacturing chemist or public hospital shall report to the clerk of the circuit cout within said ten (10) day period the kinds and account of intoxicating liquor on hand.”

An examination of sections 4, 5, and 35 of chapter 4 of the Acts of 1917 is convincing that it was not the intention of the Legislature by that act to make the mere possession of intoxicating liquor unlawful, and that such possession was not made unlawful.

In Kocher v. State, 189 Ind. 578, 127 N. E. 3, the court holds that the mere possession of less than one gallon of intoxicating liquor is not unlawful. The court in that case says:

“It is true that the mere possession of less than one gallon of intoxicating liquor is not unlawful, but it may be unlawful if kept with the intent of disposition contrary to law.”

See, also, Burzo v. State (Ind. Sup.) 130 N. E. 796;Ward v. State, 188 Ind. 606, 125 N. E. 397;Reed v. State, 189 Ind. 98, 126 N. E. 6;Callender v. State (Ind. Sup.) 136 N. E. 10.

The state contends that, if the act of 1917 did not make the mere possession of intoxicating liquor unlawful, the amendment of 1921 of said act does make such possession unlawful. This the defendant denies, and claims that section 4 of said act as amended cannot be construed as making the mere possession of intoxicating liquor unlawful.

In Clare v. State, 68 Ind. 17, it is stated that the true rule in the construction of statutes as recognized in many decisions of this court is to make the legislative intention in the enactment of particular statutes the chief guide of the court in the interpretation and construction. But it must be borne in mind that, if an act of the Legislature violates a provision of the Constitution of this state or is in conflict with it, the act is void, no matter what the intention of the Legislature may have been in passing it.

In Moore-Mansfield Co. v. Indpls. Ry. Co., 179 Ind. 356, on page 367, 101 N. E. 296, on page 300 (44 L. R. A. [N. S.] 816, Ann. Cas. 1915D, 917) the court says:

“The legislative intention, once ascertained, must be given effect if not violative of the Constitution.”

In construing the act of 1921 we are required to examine the act of 1917, which it amends. The title to that act must be taken into account in construing the act. The Constitution of the state of Indiana (article 4, § 19; Burns' § 115) contains the following provision, viz.:

“Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”

This provision is found in the Constitution of many other states. In the Constitutions of a large majority of the states are found provisions relating to the title and singleness of the subject-matter of legislative acts. It is not uniformly expressed in the same words, but it is in substance the same. Sutherland on Statutory Construction, § 76, p. 85. Under this clause of the Constitution the title becomes an indispensable part of every act. Sutherland on Statutory Construction, § 87, p. 94, says:

“It is required not only that an act shall contain but one subject, but that that subject be expressed in the title. The title, thus made a part of each act, must agree with it by expressing its subject; the title will fix bounds to the purview, for it cannot exceed the title subject, nor be contrary to it. An act will not be so construed as to extend its operations beyond the purpose expressed in the title. It is not enough that the act embraces but a single subject or object, and that all its parts are germane; the title must express that subject, and comprehensively enough to include all the provisions in the body of the act. The unity and compass of the subject must therefore always be considered with reference to both title and purview. The title cannot be enlarged by construction when too narrow to cover all the provisions in the enacting part, nor can the purview be contracted by construction to fit the title; but the title, if not delusively general, may be sufficient though more extensive than the purview.”

In Cooley on Constitutional Limitations (6th Ed.) 178, it is said:

“As the Legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are vested with no dispensing power. The Constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the Legislature have not seen fit to make it so.”

It should be borne in mind that section 19, art. 4, of the Constitution aims only at titles narrower than the enactment. The unnecessary breadth of the title is ordinarily no objection to it. Cooley, Const. Limitations (6th Ed.) 172; Moore-Mansfield Const. Co. v. Indpls. Ry. Co., 179 Ind. 356, 368, 101 N. E. 296, 44 L. R. A. (N. S.) 816, Ann. Cas. 1915D, 917.

The generality of a...