Lowdermilk v. People

• Decision Date: 07 November 1921
• Docket Number: 10160.
• Parties: LOWDERMILK v. PEOPLE.
• Court: Colorado Supreme Court

202 P. 118

70 Colo. 459

LOWDERMILK v. PEOPLE.

No. 10160.

Supreme Court of Colorado, En Banc.

November 7, 1921

Rehearing Denied Dec. 5, 1921.

Error to District Court, Adams County; Samuel W. Johnson, Judge.

W. W Lowdermilk was convicted of unlawfully disposing of mortgaged property, and brought error. On application for supersedeas.

Supersedeas denied, and judgment affirmed.

On Rehearing.

C. A. Prentice, of Denver, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the People.

Plaintiff in error, hereinafter referred to as defendant, was informed against, tried, convicted, and sentenced for unlawfully disposing of mortgaged property. To review that judgment he brings error.

The information was in two counts, the first charging that having mortgaged property to the First National Bank of Aurora, he sold the same 'without the written consent or knowledge of the mortgagee, or notice to the mortgagee,' while the lien of said mortgage was in full force and effect; the second charging that, under the same circumstances, defendant did 'transfer, conceal, take drive, and carry away and otherwise dispose of said goods and chattels so described in said chattel mortgage.' Both counts are based upon the same instrument, and both describe the same property, including '60 head of red hogs of various sizes and ages.' The only hogs mentioned in the mortgage are, '90 head stock hogs, different ages and sizes and breeds.' Verdict and sentence were upon both counts.

Chapter 43, Laws of 1917, is entitled 'An act concerning chattel mortgages.' It covers generally the whole subject. Section 15 of the act makes a mortgagor guilty of larceny if he sell or 'transfer' the property without first advising the purchaser of the lien, and the mortgagee of the intended sale and the name and residence of the purchaser. Section 16 of the act makes a mortgagor likewise guilty of larceny who 'shall transfer, conceal, take, drive, carry away, or otherwise dispose of' such property. This chapter specifically repeals certain statutes, and 'all acts or parts of acts in conflict.' It is admitted that the information herein is drawn under said sections.

The evidence is undisputed that defendant sold hogs covered by the mortgage, and removed other property included therein, all without the written consent of the mortgagee, and that such sale and removal were contrary to the terms of the mortgage. Whether these acts were done without giving the notice required by said section 15 is in dispute.

BURKE, J. (after stating the facts as above).

The principal contentions of defendant are: (1) That the act in question is unconstitutional because of a defective title; (2) that the information, the evidence, the instructions, and the finding of the jury, as to the hogs in question, are inconsistent and irreconcilable; (3) that the description of the hogs, contained in the mortgage, was insufficient to enable the mortgagee to identify them, bence as to them the mortgage was void; (4) that error was committed in the rejection of testimony concerning the bank's sale of other property covered by the mortgage. Other points raised require no consideration.

1. Section 21, art. 5, of the state Constitution, provides:

'No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.'

It is said that this court has so construed the word 'clearly' as used therein, as to make the title of the act of 1917 defective; that 'An act concerning chattel mortgages' does not 'clearly' express the subject of the illegal sale of mortgaged property.

Numerous Colorado cases are cited in the briefs, but so far as the phase of the question before us is concerned there is no conflict; and as In re Breene, 14 Colo. 401, 24 P. 3, disposes of the question, and is cited and relied upon by both plaintiff and defendant, we limit our comment to that authority. 'An act to provide for the assessment and collection of revenue' contained a clause making it a penal offense for the State Treasurer to loan public funds for private purposes, and the court held that that subject was not 'clearly' expressed in the title. The guiding principles, which are controlling here, are thus stated:

'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 organization, 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 therefore 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.' * * * It is not essential that the title shall specify particularly each and every subdivision of the general subject. * * * 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. * * * The matter covered by legislation is to be 'clearly,' not dubiously or obscurely, indicated by the title. Its relation to the subject must not rest upon a merely possible or doubtful inference. The connection must be so obvious as that ingenious reasoning aided by superior rhetoric will not be necessary to reveal it. Such connection should be within the comprehension of the ordinary intellect as well as the trained legal mind. Nothing unreasonable in this respect is required, however; and a matter is clearly indicated by the title when it is clearly germane to the subject mentioned therein. * * * Had the Legislature been content with the title 'An act in relation to revenue,' the question before us would be relieved of the present embarrassment. Any and all provisions for raising, preserving and disbursing public funds would be germane to the general subject thus expressed. The acts forbidden undoubtedly relate to these funds, and the statute under consideration would, so far as the present objection is concerned, be valid.'

Testing the title of the act before us by the foregoing, it seems unquestionable that is generality is commendable; that the illegal sale of mortgaged property has, by a 'fair intendment,' a proper connection; that it was unnecessary to particularly specify subdivisions of the subject; that its relation to the subject rests...