Durden v. State, (No. 5077.)

Citation131 S.E. 496,161 Ga. 537
Decision Date13 January 1926
Docket Number(No. 5077.)
PartiesDURDEN. v. STATE.
CourtGeorgia Supreme Court

(Syllabus by the Court.)

Error from City Court of Savannah; John Rourke, Jr., Judge.

W. D. Durden was convicted of permitting dancing on a pavilion under his control on Sunday, and he brings error. Affirmed.

McIntire, Walsh & Bernstein, of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., and Saml. B. Adams, both of Savannah, for the State.

HILL, J. The Legislature of Georgia passed an act which was approved August 8, 1925 (Acts 1925, p. 339), and is as follows:

"An act to prohibit dancing at any public place in Georgia on the Lord's Day, commonly known as Sunday.

"Section 1. Be it enacted by the General Assembly of the state of Georgia, that dancing at any public place in the state of Georgia on the Lord's Day, commonly known as Sunday, be and the same is hereby prohibited.

"Sec. 2. Be it further enacted, that the owner, proprietor, manager, agent, lessee, or tenant, of any public place in Georgia who shall permit dancing at such public place on the Lord's Day, commonly known as Sunday, shall be guilty of a misdemeanor, and, upon conviction, shall be punishable under the terms and provisions of section 1065 of the Penal Code of Georgia,

"Sec 3. Be it further enacted, that all laws and parts of laws in conflict with this act be and the same are hereby repealed."

W. D. Durden was accused in six counts, as the owner, proprietor, manager, lessee, agent, or tenant of the Durden-Powell Pavilion, a public place upon the island of Tybee, of permitting dancing upon such pavilion on Sunday, August 9, 1925, in violation of the act above set out. To this accusation the defendant filed his demurrer on the following grounds:

"(1) That said accusation does not charge said Wm. D. Durden with any offense against the laws of the state of Georgia. (2) That said accusation, and each and every count thereof, being based upon the Act of the General Assembly of Georgia, approved by the Governor of the state of Georgia upon the 8th day of August, 1925, charges no offense against the laws of the state of Georgia, the said act being unconstitutional, null, and void, for the following reasons: (a) That said act is violative of article 3, § 7, par. 8, of the Constitution of the state of Georgia, as codified in section 6437 of 1910 Code of the state of Georgia, as follows: 'No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.' (b) That section 2 of said act is in violation of article 3, § 7, par. 8, of the Constitution of the state of Georgia, as codified in section 6437 of 1910 Code of Georgia, in that said section contains matter different from that expressed in the title of said act; the language of the caption being [as set out above], and shows that this language does not indicate any purpose to make the owner, agent, or lessee, etc., of such place guilty of a state offense, and that the second section of said act contains matter different from that expressed in the title thereof. (c) That said act in question is further null and void as being violative of the definition of a misdemeanor as contained in section 31 of the Penal Code of Georgia, as follows: 'A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence'—and shows that the permission of the owner, proprietor, manager, etc., of a public place for dancing, as set forth in section 2 of said act. does not constitute a 'union or joint operation of act and intention' and therefore not a misdemeanor."

The court overruled the demurrer, and the defendant excepted.

We are of the opinion that the court did not err in overruling the demurrer on each and all of the grounds thereof. This act refers to but one subject-matter, viz. the prohibiting of dancing at a public place on the Lord's Day, commonly known as Sunday. There is no reference in the caption or in the body of the act to any other subject except the prevention of dancing at a public place on the Lord's Day, commonly known as Sunday. See Welborne v. State, 114 Ga. 794 (6), 820 (6), 40 S. E. 857. In Stanley v. State, 135 Ga. 859, 864, 70 S. E. 591, it was held:

"The Act of the General Assembly, approved August 2 [22], 1907 (Acts 1907, p. 121), entitled 'An act to provide against the evils resulting from the traffic in certain narcotic drugs, and to regulate the sale thereof, ' is not unconstitutional on the ground that it violates that portion of article 3, § 7, par. 8, of the Constitution of this state, which provides that 'no law or ordinance shall pass which refers to more than one subject-matter, ' because 'said act refers to more than one subject-matter, in this, that its object, as stated in the title thereof, is to provide against the evils resulting from the traffic in certain narcotic drugs and to regulate the sale thereof, and in addition to said object said act seeks to prohibit the prescribing of certain narcotic drugs by practitioners of medicine, dentistry, or veterinary medicine, and to regulate the prescrib ing of said drugs by practitioners of dentistry and lawfully authorized practitioners of medicine in certain cases. Nor is such act unconstitutional on the ground that it violates that portion of the paragraph of the Constitution above referred to, which provides that no law 'shall pass which * * * contains matter different from what is expressed in the title thereof, ' because 'said act contains in the body matter different from what is embraced in the title thereof, in that the title of the act contains nothing indicating a purpose to make penal the sale or prescription of the narcotic drugs named in said act, or to prescribe a punishment therefor."

In delivering the opinion of the court, Mr. Justice Holden said:

"The law makes penal the act of any person furnishing or prescribing the drugs referred to therein, in violation of the provisions of the act. Whether the matter contained in the act is germane to the purposes of the act as indicated in its title must be determined in view of the subject-matter to which the legislation relates. The purpose of the act as shown in the title was 'to provide against the evils resulting from the traffic in certain narcotic drugs, ' and 'to regulate the sale' of such drugs; and provision for punishment for a violation of the provisions of the act regulating the sale and providing against the evils of the traffic in the drugs did not contain matter foreign to such purpose. It would be difficult to obtain any practical results in regulating the sale of poisonous drugs without providing for punishment of those violating the rules laid down for such regulation. Without provision for punishment in some way the provisions for regulation would be no more than recommendations to the public. The penalties provided in the act for a violation of the rules for a regulation of the sale are merely the means for accomplishing the object of regulation. Punishment for a violation of the provisions of the act relating to the sale of or traffic in the drugs, and relating to the giving of prescriptions or orders for the drugs, is embraced in the general object of the legislation of which the title gave notice; this general object being to regulate the sale and provide against the evils resulting from the traffic without proper restrictions. The fact that a violation of the provisions for regulation of the sale and prescribing of the drugs is to be made penal need not be stated in the title, to make such provisions in the act, or the act itself, valid as against the contention that the act contains matter different from that expressed in the title, as the...

To continue reading

Request your trial
1 cases
  • Copeland v. Leathers
    • United States
    • Georgia Supreme Court
    • November 17, 1949
    ...as relating to more than one subject-matter, or as containing matter different from that expressed in its title.' See also Durden v. State, 161 Ga. 537, 131 S.E. 496; Holland v. State, 155 Ga. 795, 799, 118 S.E. Fite v. Henson, 157 Ga. 679, 688, 122 S.E. 412; Maner v. State, 181 Ga. 254(1),......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT