Erwin v. State

• Decision Date: 24 March 1906
• Citation: 93 S.W. 73
• Parties: ERWIN v. STATE.
• Court: Tennessee Supreme Court

Page 73

93 S.W. 73

ERWIN v. STATE.

Supreme Court of Tennessee.

March 24, 1906.

Appeal from Circuit Court, Marion County; S. D. McReynolds, Judge.

George Erwin was convicted of the unlawful sale of liquor, and appeals. Affirmed.

Jos. Brown, C. C. Moore, Byron Pope, and Jno. J. Vertrees, for appellant. Chas. T. Cates, Atty. Gen., and Brown & Spurlock, for the State.

NEIL, J.

The plaintiff in error was indicted in the circuit court of Marion county for the unlawful sale of liquors in 19 separate cases, was convicted and sentenced to pay a fine of $50 in each case, and 90 days' confinement in the county workhouse was imposed in each case. He has prosecuted an appeal to this court from the aforesaid judgments of conviction. All the cases have been tried here together, being substantially on the same facts. The plaintiff in error insists that he acted within the law in making the sale of liquors referred to, because he had a license from the authorities of the town of South Pittsburg, and that town was not under the operation of the law under which the indictments were framed, known as the "Four-Mile Law."

The questions made for plaintiff in error by his counsel necessitate a review of the legislative history of South Pittsburg, since his right to sell depends upon the effect of the statutes which compose that history.

South Pittsburg was originally chartered in 1887 under the general corporation laws of 1875. This charter was amended on the 6th day of April, 1897. Acts 1897, p. 549, c. 238. On the 6th of April, 1899 (chapter 235, p. 510, of the Acts of that year), an act was passed to incorporate the town of South Pittsburg and to codify all laws upon the subject into one act. On the 9th day of April, 1901 (chapter 446, p. 1071, of the Acts of that year), an act was passed purporting to repeal the above-mentioned chapter 235, p. 510, of the Acts of 1899. On April 19, 1901 (chapter 360, p. 810, of the Acts of that year), an act was passed to incorporate the town of South Pittsburg, purporting to be a new charter for that town. On April 15, 1903 (chapter 446, p. 1256, of the Acts of that year), an act was passed purporting to amend the charter of South Pittsburg as contained in the said chapter 360, p. 810, of the Acts of 1901. On March 5, 1905 (chapter 220, p. 453, of the Acts of that year), an act was passed which purported to amend the charter of South Pittsburg as contained in chapter 235, p. 510, of the Acts of 1899. This act referred to chapter 360, p. 810, of the Acts of 1901, as "an amendment and continuation of the charter of South Pittsburg, Tenn., as contained in chapter 235, p. 510, of the Acts of 1899," and repealed the said chapter 360. It is also referred to chapter 446, p. 1256, of the Acts of 1903 above mentioned, as "An act which amended the charter of the town of South Pittsburg," and repealed it.

It is insisted for plaintiff in error that chapter 446, p. 1071, Acts of 1901, purporting to repeal chapter 235, p. 510, of the Acts of 1899, is void; that the said chapter 235 was still in force after the new charter act (chapter 360, p. 810, of the Acts of 1901) was passed, and the latter made no material change in the status. It is also insisted that in any event, Acts 1905, p. 453, c. 220, was but a continuation of the said chapter 235, p. 510, of the Acts of 1899.

Hence, it is insisted that South Pittsburg, all the time since the passage of chapter 235, p. 510, of the Acts of 1899 has been existing under that law in its original and amended form.

It is insisted by the state, firstly, that chapter 235 was repealed by Acts 1901, p. 1071, c. 446; secondly, if this position be not well taken, then that it was repealed by chapter 360, p. 810, Acts of 1901; thirdly, that Acts 1905, p. 453, c. 220, has no real bearing upon the controversy.

The guilt or innocence of the plaintiff in error, accordingly as one view or the other of these controversies over the statutes may prevail, depends upon the provisions of chapter 221, p. 474, of the Acts of 1899, which in effect applies the four-mile law to towns thereafter incorporated having a population of 2,000 and under. South Pittsburg has a population of less than 2,000. If chapter 235, p. 510, of the Acts of 1899 is still in force or was in force June, 1905, when Erwin sold liquors in South Pittsburg, he committed no offense. If that act has been repealed then he sold without legal right and is guilty in all of the cases.

Was chapter 235, p. 510, of the Acts of 1899 repealed by chapter 446, p. 1071, of the Acts of 1901?

It is insisted by plaintiff in error that the latter act was not passed according to due constitutional formalities, and hence never became a law.

The bill originated in the Senate and was known as "Senate Bill 367."

The following are the journal entries of the Senate:

March 19, 1901. Mr. Williams introduced Senate Bill No. 367, entitled "An act to amend the charter of South Pittsburg." Passed first reading. Senate Journal, p. 300.

March 20, 1901. Bill passed second reading. Senate Journal, p. 317.

March 26, 1901. Mr. Williams called up Senate Bill No. 367, "An act to amend the charter of South Pittsburg." The bill passed its third and final reading. Senate Journal, p. 376.

The following are the House Journal entries:

Thursday, April 4, 1901. Senate Bill 367, to amend an act incorporating South Pittsburg. Passed first reading. House Journal, p. 619.

April 5, 1901. Senate Bill 367. Passed second reading. House Journal, p. 656.

April 9, 1901. Senate Bill 367, to amend act incorporating South Pittsburg. Mr. Raulston moved to amend so as to repeal the charter of South Pittsburg. The amendment was adopted. The bill thereupon passed the third reading, and a motion to reconsider was laid on the table. House Journal, p. 687.

On return of the bill to the Senate, the following occurred, viz.:

April 11, 1901, Mr. Williams called up Senate Bill 367, "An act to amend the charter of South Pittsburg," on House amendment. On motion the House amendment thereto was concurred in. Senate Journal, p. 592.

April 12, 1901. The Speaker of the Senate announced his official signature to the bill. Senate Journal, p. 604.

On the same day the Speaker of the House also announced his signature to the bill. House Journal, p. 763. Signed by the Governor on April 11, 1901.

It is perceived that when the bill was introduced in the Senate and passed its third reading in that body, it bore the title of an act to amend the charter of South Pittsburg; and that on being transmitted to the House it passed its first and second reading under the same title, but that on the third reading in the House it was changed from an act to amend into an act to repeal the charter of South Pittsburg; that it was returned then to the Senate, and in this form was concurred in by the Senate, and when finally adopted it bore the title "An act to repeal an act entitled" (here setting out the title of chapter 235, p. 510, of the Acts of 1899), "and to abolish said municipal corporation," as appears from Acts 1901, c. 446, p. 1071.

It is observed that in its final form the act had only one reading in the House and one in the Senate.

We think there can be no doubt as to the invalidity of the act.

The following principles are controlling:

The Constitution declares: "Bills may originate in either house; but may be amended, altered, or rejected, by the other." Article 2, § 17.

"No bill shall become a law which embraces more than one subject, that subject to be expressed in the title." Id.

"Every bill shall be read once, on three different days, and be passed each time in the House where it originated, before transmission to the other. No bill shall become a law until it shall have been read and passed, on three different days in each house, and shall have received on its final passage in each house, the assent of a majority of all the members to which that house shall be entitled under this Constitution; and shall have been signed by the respective speakers in open session, the fact of such signature to be noted on the journal; and shall have received the approval of the Governor, or shall have been otherwise passed under the provisions of this Constitution." Article 2, § 18.

Every bill has two parts, the title and the body.

The title must contain the subject of the proposed legislation, and that subject must be single. This was intended to serve a twofold purpose. The subject must be expressed in the title, so that the members of the Legislature may have their attention drawn directly to the matter about which they are to concern themselves in the discharge of their legislative duties: a second purpose is that the people of the state may know what their representatives are doing, and may interpose, if they choose, by petition, or remonstrance. The title must be single, to prevent omnibus legislation and logrolling.

It is obvious that to serve these purposes, the title must be a constant quantity, not subject to amendment, or at least not subject to any alteration that will effect any substantial change in it. It fixes the identity of the bill. There may, indeed, be made a substantial change in a title, but if so, it becomes a new title, the caption of a new bill.

What is said in the constitutional provisions, quoted, concerning amendments, refers to the body of the bill. This, as a matter of course, may be amended in the house in which the bill originated. The Constitution also permits amendments to be engrafted upon it in the other house. No restriction is placed upon this power of amendment further than results from the rigidity of the title and the necessity of conforming thereto, and the requirement that there shall be a concurrence of the two houses upon the whole bill. One section may be stricken out and its place supplied by another containing a different provision; all may be stricken out except the title and the enacting clause, and new provisions inserted...