Gherna v. State

• Decision Date: 13 February 1915
• Docket Number: Criminal 373
• Citation: 16 Ariz. 344,146 P. 494
• Parties: LOUIS GHERNA, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

146 P. 494

16 Ariz. 344

LOUIS GHERNA, Appellant, v. STATE, Respondent

Criminal No. 373

Supreme Court of Arizona

February 13, 1915

APPEAL from a judgment of the Superior Court of the County of Pima. W. F. Cooper, Judge. Affirmed.

The facts are stated in the opinion.

Mr John B. Wright and Mr. Eugene S. Ives, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. Leslie C. Hardy and Mr George W. Harben, Assistants to the Attorney General, and Messrs. Baker & Baker, for Respondent.

Mr John H. Campbell and Mr. Samuel L. Kingan, of Counsel for Respondent.

OPINION

PER CURIAM.

The appellant, Louis Gherna, appeals from a judgment of conviction of selling intoxicating liquor, to wit, a bottle of whisky, on January 1, 1915, in violation of the prohibition amendment to the state Constitution. The initiative petition by the qualified electors of the state for the proposed amendment was filed with the Secretary of State on July 2, 1914. It was adopted by the electorate of the state at the 1914 November election and became law and a part of the Constitution on December 15, 1914, by proclamation of the Governor. It appeared in the Publicity Pamphlet, which was mailed to the voters of the state, as follows:

"Proposed Amendment of the Constitution of the State of Arizona.

"Prohibiting the introduction into, the manufacture of, and the giving, exchanging, bartering, selling or disposing of ardent spirits, ale, beer, wine or intoxicating liquors in the state of Arizona and prescribing a penalty for the violation thereof.

"Be it enacted by the people of the state of Arizona:

"That the Constitution of the state of Arizona be and is hereby amended by adding thereto another article the same to be numbered XXIII and to read as follows, to wit:

"Section 1. Ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall not be manufactured in or introduced into the state of Arizona under any pretense. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind to any person in the state of Arizona, or who manufactures, or introduces into, or attempts to introduce into, the state of Arizona any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind, shall be guilty of a misdemeanor and upon conviction shall be imprisoned for not less than ten days nor more that two years and fined not less than twenty-five dollars and costs nor more than three hundred dollars and costs for each offense: Provided, that nothing in this amendment contained shall apply to the manufacture or sale of denatured alcohol.

"Sec. 2. The legislature shall by appropriate legislation provide for the carrying into effect of this amendment.

"Sec. 3. This amendment shall take effect on and be in force on and after the first day of January, 1915."

It is the contention of appellant that this amendment (1) is not self-executing; (2) that if it is self-executing, it is confiscatory; and (3) that it violates the interstate commerce clause of the Constitution of the United States.

We are of the opinion that, by the terms of the amendment, it is self-executing. It denounces certain things and prescribes a penalty for doing them, or any of them. It is as complete and full as most criminal statutes that define crimes and prescribe penalties for their commission. But, upon the hypothesis that it is self-executing, it seems to be the contention of appellant that its self-executing feature is suspended or postponed, by virtue of section 2 thereof, until a time when "the legislature shall by appropriate legislation provide for the carrying into effect of this amendment." This construction nullifies section 3, which should not be permitted, if possible. By it, it is provided that the "amendment shall take effect on, and be in force on and after the first day of January, 1915." Neither section 2 nor section 3 should be cast aside as so much "dead wood." It may be admitted that the language used in these sections, if literally interpreted, is apparently subject to the criticism of contradicting itself. But the framer, and the people who adopted the amendment, must have inserted both sections with a clear vision of their separate purpose. The object sought was to stop the traffic in intoxicating beverages. The qualified voters were clothed with the power to accomplish that object. They could have announced, in the amendment, the principle of prohibition and stopped there, as many of the states have done, and left to the law-making bodies (themselves or the legislature) the duty of enacting laws defining the offense and fixing the penalties. But they did not do that. They not only announced the principle of prohibition, but entered the domain of legislation defining the offense and prescribing punishment, and fixed a date when it should be in force and effect, to wit, January 1, 1915. The purpose, then, of inserting in the amendment section 3, is evident. It cannot be mistaken. It means, if words are really the vehicle by which thoughts and ideas are conveyed, just what it says; i.e., that the amendment is in force on and after January 1, 1915. While the enacting clause printed at the head of the amendment was not necessary and is no part thereof, we think it permissible and proper to look to it to aid us in ascertaining the intention of the electors in adopting the amendment. It conveys the idea of a self-operating law. It connotes prohibition of the things mentioned and punishment for violation thereof. The context amplifies and elaborates the title into positive, prohibitive, and penal law. While section 2 is a part of the amendment, we do not think it an essential part of it. Before discussing section 2, however, let us examine the amendment with it eliminated. With section 2 laid aside for the moment, the amendment in substance and effect would read:

"Ardent spirits, ale, beer, wine or intoxicating liquor or liquors of whatever kind shall not be manufactured in or introduced into the state of Arizona under any pretense. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine or intoxicating liquors of any kind to any person in the state of Arizona, or who manufactures, or introduces into, or attempts to introduce into the state of Arizona, any ardent spirits, ale, beer, wine or intoxicating liquor of any kind, on or after January first, 1915, shall be guilty of a misdemeanor, and upon conviction," etc.

Having here suggested in concrete form what we conceive to be the meaning of the amendment as intended by the electorate when voting for it, we will now reinsert section 2 giving it number "3." The transposition of sentences and sections in an enactment, in order to aid in construction, is no new or novel thing. As was said In re Bull's Estate, 153 Cal. 715, 96 P. 366:

"The numbering of sections in statutes is a purely artificial and unessential arrangement, resorted to for purposes of convenience only, and can never be allowed to hinder a correct construction of the entire act."

The changing of the position of section 2 from 2 to 3 does not change its meaning in the least, nor does it change the meaning of the whole amendment in the least. It does, however, aid in searching out the meaning of its authors. It makes plain that the amendment was a living, vital thing with a sting in it, on and after January 1, 1915. We have found, beyond a doubt, what sections 1 and 3 mean with section 2 eliminated for the moment. Do sections 1, 2, and 3 mean the same thing that sections 1 and 3 mean? Our answer is, "Yes." Note the language of section 2:

"The legislature shall by appropriate legislation provide for the carrying into effect of this amendment."

The last section of the state Constitution (section 21, article 22), while not in the exact language of section 2, conveys the same idea and was doubtless inserted in the Constitution for the same purpose. The section of the Constitution reads:

"The legislature shall enact all necessary laws to carry into effect the provisions of this Constitution."

There are some provisions of the Constitution that are self-operating, expressly made so, and there are many just as plainly self-operating by implication. There are some that contain mandates to the legislature to enact supplemental legislation, and there are some sections that indicate a policy or principle, and no more. Surely, no one would contend that, because of the existence of section 21, article 22, of the Constitution, the provisions thereof expressly self-executing or clearly impliedly so, are to be suspended or postponed until the legislature shall speak; nor do we think section 21, article 22, superadds any power in the legislature not already possessed by it to "enact all necessary laws to carry into effect" all of the provisions of the Constitution, whether those provisions be self-executing or merely indicate a line of policy or principles. The declaration of a policy or principle in the fundamental law, in and of itself, imposes a duty on the legislature to provide the method and means of effectually carrying out the policy or principle. A mandate to the legislature to do its duty cannot make the obligation any more binding. The duty exists just the same without the mandate. So we say that section 21, article 22, might just as well have been omitted from the Constitution, as it granted no power to the law-making body not already possessed, and for the same reason section 2 of the prohibition amendment fills no office, except it be given the effect of a request to the legislature to do what was already its duty to do. The request, then, to the legislature was that it pass "appropriate legisla...