Gerding v. Board of Com'rs of Idaho County

• Citation: 90 P. 357,13 Idaho 444
• Parties: BEN GERDING, Respondent, v. THE BOARD OF COUNTY COMMISSIONERS, Appellant
• Decision Date: 21 May 1907
• Court: United States State Supreme Court of Idaho

90 P. 357

13 Idaho 444

BEN GERDING, Respondent, v. THE BOARD OF COUNTY COMMISSIONERS, Appellant

Supreme Court of Idaho

May 21, 1907

CONSTITUTIONAL LAW-TITLE TO ACT-RESTRICTIVE-BOARD AND COMPREHENSIVE-CONSTRUCTION-ENLARGEMENT OF TITLE BY-CONTRACTION OF PURVIEW BY.

1. The title to an act of the legislature approved March 4, 1903 (Laws 1903, p. 346), entitled "An act to prohibit the sale of spirituous malt or vinous liquors near public works and grading camps of canals and railroads and other kindred enterprises," held to be too narrow and restricted to include the provisions of said act providing for the sale of liquors and regulating their sale.

2. While said title indicates the absolute prohibition of all sales of liquors near grading camps, etc., the act itself does not prohibit but undertakes to regulate.

3. Said title is too restrictive to cover the provisions of said act authorizing the sale of intoxicating liquors.

4. The court has no authority to enlarge by construction the title to an act when it is too narrow to cover all of the provisions in the act.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Proceedings to test the constitutionality of an act of the legislature approved March 4, 1903. Judgment sustaining the constitutionality of said law. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

L Vineyard and E. M. Griffith, for Appellant.

The title declares for one thing--"To Prohibit"--while the act declares another--How the sale of liquor may be made within five miles of these camps. The title is not an index to the act, nor does the act in any way reflect the subject stated in the title. There is no connection between the two they must stand forever apart declaring for opposite subjects of legislation.

The title of the act is so restricted that the purpose of the act fails. The courts cannot enlarge the scope of the title. (Cooley's Constitutional Limitations, 4th ed., 181; Turner v. Coffin, 9 Idaho 338, 74 P. 962; Sutherland on Statutory Construction, sec. 87; Howland Coal & Iron Works v. Brown, 13 Bush, 681; In re Paul, 94 N.Y. 497; Matter of Sackett etc. Streets, 74 N.Y. 95; State v. Clinton, 27 La. Ann. 40.)

Provisions like section 16, article 3, in constitutions are mandatory, and therefore to be scrupulously observed and obeyed. (Cooley's Constitutional Limitations, 4th ed., 175.)

Fogg & Tannahill, for Respondent.

"The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by the title." (Cooley's Constitutional Limitations, 6th ed., 172.)

Section 16, article 3 of the constitution must be given a reasonable construction. It is sufficient if the act treats of but one general subject, and that subject expressed in the title.

The title to the said act is comprehensive enough to include all provisions necessary and convenient to regulate the sale of intoxicating liquors. (State v. Doherty, 3 Idaho 384, 29 P. 856; Pioneer Irr. Co. v. Bradbury, 8 Idaho 310, 101 Am. St. Rep. 201, 68 P. 295; Turner v. Coffin, 9 Idaho 338, 74 P. 962-966; Martin v. Blattner, 68 Iowa 286, 25 N.W. 131; Butler v. State, 89 Ga. 821, 15 S.E. 763.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This is an appeal from an order and judgment of the district court of Idaho county annulling and canceling an order of the board of county commissioners of that county made on the eighteenth day of February, 1907, granting a retail liquor license to one Haener at the town of Ferdinand of said county, within five miles of a railroad construction camp, where twenty-five or more men were at work at the time of granting the license. The facts of the case are stipulated, and there is no dispute as to them.

This appeal involves the constitutionality and construction of an act entitled, "An act to prohibit the sale of spirituous malt or vinous liquors near public works and grading camps of canals and railroads and other kindred enterprises," approved the 4th of March, 1903 (Sess. Laws 1903, p. 346). The first and second sections of said act are as follows:

"Section 1. It shall be unlawful for the board of county commissioners of any county in this State to grant a license to any person to sell, barter, or exchange or otherwise dispose of malt, spirituous or vinous liquors in less quantities than five gallons within five miles of any camp or assembly of men engaged in the construction or repair of any railroad, canal, reservoir, public work, or other kindred enterprise where twenty-five or more men are employed."

"Section 2. Any person who shall sell or offer for sale, barter, exchange or otherwise dispose of any spirituous, malt or vinous liquors in less quantities than five gallons within five miles of any camp or assembly of twenty-five or more men engaged in the construction or repair of any railroad, canal, reservoir, public work or other kindred enterprise, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in a sum not exceeding fifty dollars or imprisonment in the county jail for not exceeding thirty days, or both, in the discretion of the court; and any attempt to evade the provisions of this act, by giving away any such liquor to any person on the pretense, or for the reason that such person has purchased, or designs or is expected to purchase some other article, shall be deemed as a sale within the meaning of this act: Provided, That the provisions of this section shall not apply to sales made under a license issued by any incorporated town or city, nor to saloons or other places at which such liquors are sold or disposed of, outside of the corporate limits of cities and towns which may have been established and licensed six months prior to the beginning of said work within said five mile limit."

It is first contended that the title of said act is so at variance with the subject thereof and matters properly connected therewith that said act is unconstitutional and void, because in violation of section 16, article 3 of our state constitution, which section is as follows:

"Sec. 16. 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."

It is contended that said title without reserve declares for prohibiting the sale of spirituous and other liquors near public works and grading camps, while it appears from the body of the act that it discriminates in favor of one person to the exclusion of...