Garrey v. Schnider, 9871

• Citation: 105 N.W.2d 860,78 S.D. 596
• Decision Date: 09 November 1960
• Docket Number: No. 9871,9871
• Parties: Ronald T. GARREY, Plaintiff and Respondent, v. Jesse L. SCHNIDER, Commissioner, Department of Motor Vehicles of the State of South Dakota, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 860

105 N.W.2d 860

78 S.D. 596

Ronald T. GARREY, Plaintiff and Respondent, v. Jesse L. SCHNIDER, Commissioner, Department of Motor

Vehicles of the State of South Dakota, Defendant

and Appellant.

No. 9871.

Supreme Court of South Dakota.

Nov. 9, 1960.

Parnell J. Donohue, Atty. Gen., Charles Poches, Jr., Asst. Atty. Gen., for defendant and appellant.

Theodore M. Bailey, Sioux Falls, for plaintiff and respondent.

SMITH, Judge.

Whether the title of Chapter 264, Laws 1959, expresses the subject of that act as required by Section 21, Article III of the Constitution of South Dakota is the question presented by this appeal. The cited act is carried as SDC 1960 Supp. 44.0302-2.

Plaintiff was arrested in Sioux Falls, South Dakota, and charged with violation of a traffic ordinance of that city. The officer making the arrest had reasonable grounds to believe that plaintiff was then driving a motor vehicle while under the influence of alcoholic liquor. Thereupon, because of the refusal of the plaintiff to submit to the chemical analysis described in Ch. 264, Laws 1959, such steps were taken and proceedings had in compliance with the provisions of that act as resulted in the revocation of plaintiff's driver's permit, and his permit was surrendered to the defendant commissioner.

Predicated upon the theory that the cited act is void because its title does not satisfy the requirements of Section 21, Article III of the constitution, plaintiff brought this action seeking a decree requiring the defendant commissioner to reinstate and surrender plaintiff's driver's permit. The learned trial court held the act unconstitutional and entered judgment in accordance with the prayer of plaintiff's complaint. The defendant has appealed.

Before turning to the merits, we notice plaintiff's motion for a dismissal of the appeal made on the ground that the assignments of error are insufficient to present a question for review. An assignment of error need follow no stated form but must briefly and plainly point out the error alleged to exist. SDC 1960 Supp. 33.0735. While defendant's assignments are not models of clarity, from the entire instrument entitled 'Assignments of Error' court and counsel are informed defendant is complaining that the trial court erred in concluding as a matter of law that Ch. 264, Laws 1959, is unconstitutional because it violates Section 21, Article III of the constitution. We deem that sufficient in the circumstances and therefore deny the motion.

By Ch. 264, Laws 1959, it is provided that any person who operates any vehicle in this state shall be deemed to have given his consent to a described chemical test to determine the amount of alcohol in his blood, which test, in case of a person charged with a traffic violation, is to be given under the direction of a police officer having reasonable grounds to believe such person to have been driving under the influence of alcoholic liquor. The act includes other provisions for revocation by the commissioner of motor vehicles of a defendant's permit to drive for one year if, after explanation of the provisions of the act, he refuses to submit to the described test, for a trial de novo in the circuit court to determine whether such revocation was warranted, for the qualification of those authorized to withdraw blood from a defendant in making the test, for a simultaneous like test by a qualified person of defendant's choice, and for exemption from liability to defendant of a physician or technician, acting with due care, in making the test at the request of a law enforcement officer.

The assailed title of the act reads 'An Act Entitled, An Act relating to regulation as to use of motor vehicles upon the highways of this state and exempting from liability the party administering such chemical tests.'

Section 21, Article III of the constitution provides that 'No law shall embrace more than one subject, which shall be expressed in its title.'

No question is raised as to the unity of the subject matter of the act; it is not asserted that more than a single subject is embraced therein. The attack is directed at the title. The plaintiff advances two contentions in support of the ruling of the trial court which we propose to separately state and consider.

The first contention of plaintiff is that the portion of the title reading 'An Act relating to regulation as to use of motor vehicles upon the highways of this state' is too general to express the subject of the act and, therefore, is misleading and deceptive.

In our many decisions dealing with this constitutional provision the court has steadfastly adhered to its pronouncements in State v. Morgan, 2 S.D. 32, 48 N.W. 314, and State v. Becker, 3 S.D. 29, 51 N.W. 1018. In Morgan, 2 S.D. at page 42, 48 N.W. at page 317, it was declared,

'The constitutional requirement in our constitution is addressed to the subject. This subject must be single. The provisions of the act must all relate directly to the same subject, have a natural connection, and not be foreign to the subject as stated in the title. The title must state the subject of the act for the information, not only of the legislature, but of the public generally. When the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will or may facilitate the accomplishment of the purpose so stated, are germane to its title. There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act.'

And in Becker, 3 S.D. at page 37, 51 N.W. at page 1021,

'* * * and it is not difficult to see that the mischief which the provision was intended to prevent was that of putting into the law what was not indicated in the title, and not that of making the title broader than the law.'

In Chapman v. South Dakota Rural Credits Board, 46 S.D. 72, at page 73, 190 N.W. 884,

'Certain general propositions relating to titles of acts are firmly established by the decisions of the courts of this and other jurisdictions. The best title is one that is comprehensive, one that does not purport to be an index.'

And in Metropolitan Casualty Insurance Co. of New York v. Basford, 31 S.D. 149, at page 167, 139 N.W. 795, at page 799, this court quoted with approval from Fidelity Insurance, Trust & Safe Deposit Co. v. Shenandoah Valley R. Co., 86 Va. 1, 9 S.E. 759, 19 Am.St.Rep. 858,

'When the title is general, as it may be, all persons interested are put upon inquiry as to anything in the body of the act which is germane to the subject expressed; but when the title is restrictive, and confined to a special feature of a particular subject, the natural inference is that other features of the same general subject are excluded. * * *'

What is the subject of the act? The trial court wrote:

'This is an Act implying consent to a chemical analysis for determining the amount of alcohol in the blood by the operators of motor vehicles on the highways of the State of South Dakota. That is its purpose as set out in the body of the Act, and any other provisions in the Act would only appear to cover the means of accomplishing that purpose, and matters fairly and reasonably connected with such purpose.'

And we understand that counsel entertains the view that such an implied consent is the subject of this act. It seems manifest to us that it was because of a mounting public concern induced by the increasing use of motor vehicles on our highways by persons under the influence of alcoholic liquor, and the pressing need for strengthening the arm of the officer seeking to curb such use, that the legislature was moved to write these provisions into our statutes. This act was a means to an end, not an end in itself.

Speaking in terms of Section 21, Article III, the 'subject' of an act is the matter of public concern for which the law is enacted. State v. Morgan, supra. It was the public concern about this described use of motor vehicles on our highways which was the subject of this act. The words we are considering, viz., 'An Act relating to regulation as to use of motor vehicles upon the highways of...