Ex parte Wells

• Decision Date: 28 January 1959
• Docket Number: A-12686,Nos. A-12685,s. A-12685
• Citation: 335 P.2d 358
• Parties: In the Matter of the Habeas Corpus of Edward E. WELLS, Petitioner. In the Matter of the Habeas Corpus of Louie Esquire HAYES, Petitioner.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 358

335 P.2d 358

In the Matter of the Habeas Corpus of Edward E. WELLS, Petitioner In the Matter of the Habeas Corpus of Louie Esquire HAYES, Petitioner.

Nos. A-12685, A-12686.

Criminal Court of Appeals of Oklahoma.

Jan. 28, 1959.

Syllabus by the Court.

1. Every act of the Legislature shall embrace but one subject which shall be clearly expressed in its title, with specific exceptions not here involved. Okl.Const., Art. 5, § 57.

2. If the title to the original act is sufficient to embrace the matters contained in an amendatory act, the sufficiency of the title of the latter need not be inquired into. But under such a title, showing merely that the act is one to amend or supplement a prior statute, no provision may validly be incorporated in the body of the act which is not within the title of the statute so proposed to be amended or supplemented, unless the title to the original act is also amended to include the matter added by the amendatory or supplemental act.

3. Amphetamine is a colorless, volatile, mobile liquid, the inhalation of its vapors causing shrinking of the nasal mucosa in head colds, sinusitis and hay fever. Amphetamine has a stimulating effect upon the nervous system, whereas a barbiturate has a hypnotic or somnific effect upon the central nervous system; that is to say, amphetamine will keep a person awake, while a barbiturate will put a person to sleep, or sedate him, depending upon the amount administered, so that, amphetamines and barbiturates are two different drugs producing different effects upon the central nervous system, and the term barbiturate is not broad enough to include amphetamine.

4. The statutory provisions forming the basis for the within prosecutions is the act of 1953 Legislature, Title 63, § 465.2 O.S.A. (Chap. 10, Title 63, p. 309, S.L.1953, H.B. 575) the title to which amendatory act makes no mention of the word 'amphetamine', though amphetamine is mentioned in the body of said amendatory act. The sections of Title 63 O.S.1951 mentioned in the 1953 act were enacted by the 1949 Legislature (S.L. pp. 430-433), the title to which said act reads: 'Chapter 10a, House Bill No. 162: An Act relating to the sale and distribution of barbiturates; defining certain terms; prohibiting certain acts with exceptions; providing for keeping of records; authorizing the State Board of Pharmacy to promulgate regulations; providing penalties; providing that the provisions of this act shall be severable; and repealing O.S. Accumulative Supplement 1947, Title 63, paragraphs 328.1 and 328.2. Held, that in that the term barbiturates is not broad enough to include the term amphetamine, the 1953 amendatory act, Title 63, § 465.2 O.S.A. (Chap. 10, Tit. 63, p. 309, S.L.1953, H.B. 575) is violative of Art. 5, § 57, Oklahoma Constitution.

5. While a court should hesitate to declare a statute unconstitutional until clearly satisfied of its invalidity, particularly more so in proportion to the length of time it has been on the statute books, yet, if such an act is plainly in conflict with the organic law of the State, old age cannot give it life, and when the issue of its constitutionality is properly raised, it must be declared void.

Original proceedings in which the petitioners seek release from confinement in the county jail of Pawnee County, Oklahoma, by writ of habeas corpus. Writ granted.

Leon J. York, Everett E. Berry, Stillwater, for petitioners.

Mac Q. Williamson, Atty. Gen., Fred Hansen, First Asst. Atty. Gen., for the State.

POWELL, Presiding Judge.

Edward E. Wells and Louie Esquire Hayes have filed in this court their separate petitions each seeking a writ of habeas corpus requiring their release by R. A. Wilson, Sheriff of Pawnee County, from incarceration in the county jail of said county on account of two certain charges in the county court, to wit:

(1) Case No. 8761, wherein they are charged jointly with the crime of delivery of amphetamine, in violation of Title 63, § 465.2, Oklahoma Statutes Annotated; and

(2) Case No. 8762, wherein they are charged jointly with the crime of possession of amphetamine, in violation of Title 63, § 465.2, Oklahoma Statutes Annotated.

It is further alleged that defendants prior hereto sought separate writs of habeas corpus from the district court of Pawnee County, but that said writs were denied, and hence the filing of original petitions here. 20 O.S.1951 § 41; Okl.Const. art. 7, §§ 2 and 10.

The matters came on for hearing on November 12, 1958. There was received in evidence a transcript of testimony taken before Hon. O. S. Palmer, County Judge, in hearing on motion to suppress held on October 24, 1958; also affidavit of Roy E. Waggoner, M.D. The parties were granted time in which to file further briefs, and the case was submitted. All briefs have now been received and studied. The two cases have been consolidated for purpose of opinion.

There is one main proposition that has been raised by petitioners at all steps in the proceedings in the county court of Pawnee County, in the district court of Pawnee County and here as foundation for the writ sought, to wit: That the statutory provisions forming the basis for the within prosecutions and being the Act of 1953 Legislature, Title 63, § 465.2 O.S.A., Chapter 10, Title 63, p. 309, Session Laws 1953, House Bill 575, is void, unconstitutional, and of no force and effect; for the reason that the title to said act makes no mention of the word 'amphetamine'; that the title refers only to barbiturates and that amphetamine is an entirely different drug from a barbiturate; that amphetamine has a stimulating effect upon the nervous system, whereas a barbiturate has a hypnotic, or somnifacient, effect upon the central nervous system; that there is no connection whatsoever between the two drugs, and by reason of the fact that the word 'amphetamine' was not used in the title of the act the same violates the constitutional provisions of the Oklahoma Constitution, to wit: Article 5, § 57.

The Attorney General in each case has filed a response to rule to show cause issued by this court, which are in the form of general denials, stating that the material allegations of the petitions are not sufficient to form the basis for the relief sought.

The question of the jurisdiction of this court to determine the constitutionality of a law in habeas corpus proceedings has had the attention of this court many times. In Ex parte Strauch, 80 Okl.Cr. 89, 157 P.2d 201, 202, we said:

'While the Criminal Court of Appeals does not look with favor upon the testing of the constitutionality of a statute by habeas corpus, nevertheless it has the authority to pass upon the constitutionality of a statute in such a proceeding, and will exercise that Authority where necessity exists and the public good demands.

'Criminal Court of Appeals is proper court to determine constitutionality of penal statute.'

See also Tilghman v. Burns, 91 Okl.Cr. 359, 219 P.2d 263; Ex parte Olden, 88 Okl.Cr. 56, 199 P.2d 228.

The first question presented by the pleadings is whether amphetamine is a barbiturate.

James Radley, a licensed pharmacist, testified on motion to suppress in the county court, that the drug amphetamine was not a barbiturate. He was asked: 'Would you state the difference between the two?' And answered: 'Amphetamine is a central nervous system stimulant. A barbiturate would be exactly the opposite, or depressing. Amphetamine will keep a person awake, and a barbiturate, in reverse, would put a person to sleep, or sedate him, depending on the amount administered.'

There was received in evidence an affidavit from Roy E. Waggoner, M.D., in which he said:

'I am familiar with the properties and uses of barbiturates and their derivatives and amphetamines and their derivatives, including the salts and compounds of each drug. I have used both drugs during the entire time I have practiced medicine and there is no connection or relationship between barbiturates and amphetamines. A barbiturate is used as a sedative to the central nervous system, whereas amphetamine is used as a stimulant to the central nervous system.'

We have also consulted Blakiston's New Gould Medical Dictionary, 1949 edition, and find that amphetamine, after statement as to chemical formula, is thus defined: 'A colorless, volatile, mobile liquid. Inhalation of its vapors causes shrinking of the nasal mucosa in head colds, sinusitis, and hay fever.' It is also stated that benzedrine is a trade mark for amphetamine.

Concerning barbiturates, it is said: 'Barbiturates are used in medicine as hypnotic and sedative drugs, but are not analgesics unless administered in relative large doses. Modification in their structure influence the power and rapidity of their effects. The therapeutic effect of these drugs are extended upon the higher centers of the brain, and they do not usually cause injury to the heart, circulation or kidneys. They are common allergens.'

While it would appear that both barbiturates and amphetamine have the common property of effecting the central nervous system, we must, from the evidence before us, conclude that as contended by petitioners, the effects of the two drugs is entirely different; and that amphetamine is an entirely different drug from a barbiturate. There remains, then, the question of the sufficiency of the title to the amended (1949) act and the amendatory (1953) act.

In commencing our consideration of the issue, we must agree with certain general principles heretofore adhered to by this court, and called to our attention by the Attorney General, and being, as said in Ex parte Houston, 93 Okl.Cr. 26, 224 P.2d 281, 283, that 'Where the jurisdiction of this court is invoked by habeas corpus to declare void a statute or ordinance, every presumption is indulged in favor of the validity of the statute or ordinance. This court will not declare such to be void if it can reasonably be sustained.'

Also, as said in Reeves v....