In re Breene

• Decision Date: 09 May 1890
• Citation: 24 P. 3,14 Colo. 401
• Parties: In re BREENE.
• Court: Colorado Supreme Court

24 P. 3

14 Colo. 401

In re BREENE.

Supreme Court of Colorado

May 9, 1890

Petition by Peter W. Breene for a writ of habeas corpus.

S.D. Walling and C. S. Thomas for petitioner.

Sam. W. Jones, L. S. Dixon, and Wells, McNeal &amp Taylor, for respondents.

HELM C.J.

The right to inquire by habeas corpus into the matters presented in this case is not seriously challenged by respondents. Therefore, though counsel for petitioner consider the question at length, jurisdiction in the premises will be assumed without discussion. The indictment under which petitioner is held in custody charges him with lending public moneys for private gain while occupying the office of state treasurer. He is not accused of otherwise misappropriating or misusing state funds, nor is any deficit or defalcation in connection therewith averred. The accusation is based upon the alleged fact that he received for his private advantage, from the banks mentioned in the indictment, interest upon state funds deposited therein by him while, as treasurer of state, he was the constitutional custodian thereof.

The act mentioned in the indictment is not an offense at common law. The constitutional provision (section 13, art. 10) which forbids the making of profit by public officials out of public funds, and classifies the forbidden act as a felony is conceded not to be self-executing. Therefore, statutory authority must be found to support the present proceeding against petitioner. If such authority exists, it is emhodied in section 2948 of the General Statutes, which reads: 'County treasurers shall be liable to a like fine [$1,000] for loaning out, or in any manner using, for private purposes, state or county funds in their hands, and the state treasurer shall be liable to a fine of not more than ten thousand dollars for a like misdemeanor, to be prosecuted by the attorney general in the name of the state.' Several serious objections are urged against the validity of the foregoing statute. One of these objections being decisive of the case, the others will not be considered. The title of the act in which the section above quoted appears is 'An act to provide for the assessment and collection of revenue, and to repeal certain acts in relation thereto.' It is claimed that the subject-matter of the section is not clearly expressed in this title, and therefore that the statute is in conflict with the following section of the constitution: 'No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' Section 21, art. 5. Regarding this constitutional provision, we observe-- First, that it is mandatory. Such is the view expressly declared by this court, and, with but two or three exceptions, adopted elsewhere. Railroad Co. v. People, 5 Colo. 40; Wall v. Garrison, 11 Colo. 515, 19 P. 469. Second, that it should be liberally and reasonably interpreted, so as to avert the evils against which it is aimed, and at the same time avoid unnecessarily obstructing legislation. Clare v. People, 9 Colo. 122, 10 P. 799; Dallas v. Redman, 10 Colo. 297, 15 P. 397. Third, that it embraces two mandates, viz.: one forbidding the union in the same legislative bill of separate and distinct subjects, and the other commanding that the subject treated in the body of the bill shall be clearly expressed in its title. Each of these mandates is designed to obviate flagrant evils connected with the adoption of laws. The former prevents joining in the same act disconnected and incongruous matters. The purpose of the latter is thus tersely and forcibly stated in Dorsey's Appeal, 72 Pa. St. 192: 'Another purpose was to give information to the members, or others interested, by the title of the bill, of the contemplated legislation; and thereby to prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the bill.' The provision undoubtedly deals with legislative procedure; but obedience thereto directly results in advising the people of the contents of bills that have become laws. It is quite as important to the official or the private citizen that he have the highest facilities for knowing the existing law, as that he have opportunity to offer criticism or suggestion upon pending legislation. He should not be left to discover, 'coiled up in the folds' of an act apparently in no way concerning him, a provision affecting his most important interests. For instance, legislation seriously modifying the mechanic's lien or exemption laws should not be hidden under a title relating exclusively to railroads. This, the constitutional provision before us prevents. Therefore, while its primary purpose is to avoid surprise and fraud upon the legislators and people in the enactment of laws, a further important and beneficient end is attained. Nor is the constitution unreasonable in this respect, or difficult to comply with. When intelligently and carefully observed, it embarrasses proper legislation but little. The general assembly may, within reason, make the title of a bill as comprehensive as it chooses, and thus cover legislation, relating to many minor but associated matters. For example, an act entitled 'An act in relation to municipal corporations' may provide for the erganization, government, powers, duties, offices, and revenues of such corporations, as well as for all other matters pertaining thereto. 'The generality of a title,' says Judge COOLEY, 'is no objection to it so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.' Const. Lim. (5th Ed.) 174, 180. It is not essential that the title shall specify particularly each and every subdivision of the general subject. Such a requirement would lead to surprising and disastrous results. Many titles would not only be absurdly prolix, but the laws themselves would be endangered by virtue of the inhibition against duplicity of subjects. Edwards v. Railroad Co., 13 Colo. 59, 21 P. 1011; People v. Goddard, 8 Colo. 432, 7 P. 301. Efforts to cover specifically in the title all subordinate matters treated of in the act have already jeopardized legislation in this state, and only be the most liberal interpretation has the court been able to save the statutes. Canal Co. v. Bright, 8 Colo. 144, 6 P. 142; Clare v. People, supra. But the legislature may, on the other hand, undoubtedly contract the scope of a title to the narrowest limits. When, however, in the exercise of this discretion, it sees fit to thus restrict the title, care must be taken not to transcend, in the body of the bill, the limit thus voluntarily fixed. 'An act to amend section 78 of chapter c' must not amend sections of chapter c other than the one named. People v. Fleming, 7 Colo. 230, 3 P. 70. 'An act to provide for the payment of county and road taxes in cash,' must not authorize the purchase of outstanding warrants at the lowest price offered, and create a special fund for this purpose. People v. Hall, 8 Colo. 485, 9 P. 34. If the title of a bill be limited to a particular subdivison of a general subject, the right to embody in the bill matters pertaining to the remaining subdivisions of such subject is relinquished. To hold otherwise would be to disobey the constitutional mandate, and invite the grave evils sought to be avoided thereby.

It will not do to say that the general subject of legislation may be gathered from the body...