Ellery v. State, Criminal 785

• Decision Date: 01 June 1933
• Docket Number: Criminal 785
• Parties: SID W. ELLERY, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

22 P.2d 838

42 Ariz. 79

SID W. ELLERY, Appellant, v. STATE, Respondent

Criminal No. 785

Supreme Court of Arizona

June 1, 1933

APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment affirmed.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr. K Berry Peterson, Attorney General, and Mr. C. T. McKinney Assistant Attorney General, for the State.

OPINION

LOCKWOOD, J.

Sid. W. Ellery, at the time of the acts with which this case is concerned superintendent of banks for the state of Arizona and hereinafter called defendant, was convicted of a violation of section 214, Revised Code of Arizona 1928, which reads as follows: "§ 214. Prohibitions on officials; penalty. It shall be unlawful for the superintendent or any examiner or employee of his office to borrow money, either directly or indirectly from a bank under the jurisdiction of the department. Every person who shall violate any provision of this section shall forfeit his office or employment, and shall be guilty of a misdemeanor," and has brought this appeal before us. There are a number of assignments of error, but we shall consider them rather in the logical order of the propositions of law raised thereby than by the specific assignments made.

The first contention is that the section above quoted is unconstitutional for the reason that it refers to a subject which is not expressed in the title of the act containing it, in violation of section 13, part 2, article 4, of the Constitution, which reads as follows: "Section 13. 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 embraced in the title." In considering this objection we shall have to state briefly the manner in which the Revised Code of 1928 was adopted. In 1925 a commissioner was appointed charged with the duty of making a thorough and complete revision and codification of all the statutory law of the state of Arizona. This work was continued for two years and the commissioner made a report of his labors to the legislature which met in 1927. That legislature appointed a committee of its own members to assist him and to prepare for submission to a later session bills for the enactment of the new Code. Pursuant to this authority, there was prepared a complete revision of the statutory law of Arizona. A special session of the legislature was called to meet November 19th, 1928, one of the purposes being stated "to enact legislation to revise the civil and penal codes, the laws of Arizona." A number of different bills containing titles such as "Banks and Banking," "Public Finances," "Penal Code," etc., were then presented to and passed separately by the legislature, each bill containing the statement that it was adopted as "a part of the Revised Statutes of Arizona." These bills were numbered consecutively by chapters from 1 to 139 and by sections from 1 to 5349, instead of the chapters and sections of each separate bill beginning from 1 and running to whatever number was required to complete it. After all of these separate measures had been duly passed and submitted to and approved by the Governor, the legislature passed and adopted Senate Bill No. 100, which was presented to the Governor on the fourth day of January, 1929, and by him signed on the fifth day of January, subsequent to the passage and approval of all of the separate bills before referred to. We quote the bill in full with the exception of the space represented by stars. In that space is found in regular order, divided into parts, chapters and sections entitled and numbered substantially as they appear in the printed Code of 1928, the entire statutory law of Arizona up to that time, both civil and criminal. "State Senate "Eighth Legislature "Fifth Special Session

"Senate Bill No. 100

"An Act to Revise, Codify and Adopt A Revision and Codification of the Laws and Statutes of the State of Arizona and Declaring an Emergency

"Be it enacted by the Legislature of the State of Arizona:

"Section 1. That the laws and statutes of the State of Arizona, revised, codified, harmonized and reduced by the Code Commissioner appointed by the Governor under the provisions of Chapter 35, Session Laws Seventh Legislature, 1925, as further prepared for submission to the Legislature by the Legislative Code Committee, under the provisions of Chapter 31, Session Laws, Fourth Special Session, Eighth Legislature, 1927, and as amended and adopted by the Eighth Legislature, Fifth Special Session, 1928, be and the same are hereby enacted as the laws and statutes of the State of Arizona, which said laws and statutes are as follows: * * *

"Section 2. Each and all of the aforesaid laws and statutes shall take effect and be in force at 12 o'clock noon on the first day of July, 1929.

"Section 3. All laws and statutes of a general nature now in force, are hereby repealed, said repeal to take effect at 12 o'clock noon, on said first day of July, 1929.

Section 4. The incorporation herein of initiated and referred measures is not to be deemed a legislative reenactment or amendment thereof, but only a mechanical inclusion thereof into the revised laws and statutes.

"Section 5. Whereas, in order that there be no confusion, uncertainty or doubt regarding the laws and statutes of the State of Arizona, it is necessary for the public peace, health and safety that the provisions of this Act become immediately operative; therefore an emergency is hereby declared to exist, and this Act shall be exempt from the referendum provisions of the State Constitution."

Then follows in regular form the usual signatures of the officials who are required to sign any bill before it becomes law.

There can be no doubt whatever from the foregoing recital of facts that it was the intention of the legislature of Arizona to adopt the entire statutory law of Arizona as a new and single measure, but that feeling that this perhaps would be unconstitutional it took the added precaution of passing separate bills on various subdivisions of such law and then, after this was done, of adopting the general enactment above quoted. If it was in its power to adopt an entire Code by a single act under a single title, there is no doubt that this was done, for Senate Bill 100, supra, was subsequent in its enactment to all of the separate bills, and the validity of the subject matter thereof, so far as it is constitutional, depends, not upon the passage of the previous separate bills, but upon the adoption of the later single one, for if a law be passed by the legislature and later adopted in regular form a second time, it is the second enactment which gives it force and validity as law from that time and not the first one.

Let us then consider whether a legislature may revise and codify the entire statutory law under one title, and if so, what that title must contain? This question was considered by the Supreme Court of Washington in Marston v. Humes, 3 Wash. 267, 28 P. 520. In that case the court said:

"Again it would hardly be contended that it is not competent, under the provision in question, for the legislature to enact as a single law a code of civil procedure, and that an act entitled, 'An act to provide a code of civil procedure' would be invalid, yet under this subject innumerable subheads and subjects can easily be carved out. Such title is good, because the legislature has seen fit to take a comprehensive subject which can properly cover all of such subjects. If the legislature can thus by a name sufficiently comprehensive embrace all the subjects properly relating to civil procedure, it must follow that, by adopting a subject sufficiently general, it can embrace in one act all the statute law of the state. In other words, the legislature may adopt just as comprehensive a title as it sees fit, and if such title, when taken by itself, relates to a unified subject or object, it is good, however much such unified subject is capable of division. I have come to this conclusion, not only from the necessities of the case as they appear to me, but from such authorities as I have been able to find on that subject. Mr. Cooley, in his admirable work upon Constitutional Limitations, makes use of the following language: 'The generality of a title is no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having the necessary or proper connection. The legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it.' Cooley, Const. Lim., p. 174. Mr. justice READ, in a carefully considered opinion, quotes with approval the following language in referring to the title of the act in question: 'Whether the description of the subject might not with propriety be more specific, it seems to me, is a question for the legislature, rather than the courts. The purpose of the 16th section was that neither the members of the legislature nor the public should be misled by the title, not that the latter should embody all the distinct provisions of the bill in detail.' blood v. Mercelliott, 53 Pa. St. 391. Mr. Justice VALENTINE, in passing upon this question, used the following pertinent language: 'The subject to be contained in a bill under section 16, art. 2, of the constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title," may be as broad and comprehensive as the...