Payne v. Graham

• Decision Date: 10 September 1919
• Citation: 107 A. 709
• Parties: PAYNE v. GRAHAM.
• Court: Maine Supreme Court

107 A. 709

PAYNE

v. GRAHAM.

Supreme Judicial Court of Maine.

Sept. 10, 1919.

Exceptions from Supreme Judicial Court, Cumberland County.

Petition of Vera Payne against King F. Graham for writ of habeas corpus. Writ granted.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

John J. Devine and Samuel L. Bates, both of Portland, for petitioner.

Carroll L. Beedy and Clement F. Robinson, both of Portland, for respondent.

DEASY, J. In May, 1919, Vera Payne was indicted and convicted in the superior court, Cumberland county, for violation of chapter 112 of the Public Laws of 1919, which act, approved March 27, 1919, makes more stringent the provisions of statute for the prevention and punishment of sexual crimes.

She presents her petition for writ of habeas corpus, upon the ground that at the time of her indictment and conviction chapter 112 had not become effective as law.

Section 7 of the act is as follows:

"In view of the emergency cited in the preamble this act shall take effect when approved."

But the petitioner says that chapter 112, notwithstanding this legislative pronouncement, is not an emergency act, and that it did not take effect until 90 days after the recess of the Legislature, which period expired after her conviction.

The amended Constitution of Maine, article 4, part third, section 16, is as follows:

"No act or joint resolution of the Legislature, except such orders or resolutions as pertain solely to facilitating the performance of the business of the Legislature, of either branch, or of any committee or officer thereof, or appropriate money therefor or for the payment of salaries fixed by law, shall take effect until ninety days after the recess of the Legislature passing it, unless in case of emergency (which with the facts constituting the emergency shall be expressed in the preamble of the act), the Legislature shall, by a vote of two-thirds of all the members elected to each house, otherwise direct. An emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety; and shall not include (1) an infringement of the right of home rule for municipalities, (2) a franchise or a license to a corporation or an individual to extend longer than one year, or (3) provision for the sale or purchase or renting for more than five years of real estate."

The petitioner contends that the act in question is not immediately necessary for the preservation of the public peace, health, or safety, and that the court should so declare.

But the state maintains that the question presented is one for final legislative determination.

The leading case touching this matter is Kadderly v. City of Portland, 44 Or. 120, 74 Pac. 721, 75 Pac. 222. The opinion in this case sustains the state's contention. See, also, to same effect Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392; Oklahoma City v. Shields, 22 Okl. 265, 100 Pac. 559; In re Menefee, 22 Okl. 365, 97 Pac. 1014; In re Senate Resolutions, 54 Colo. 269, 130 Pac. 336; Bennett Trust Co. v. Sengstacken, 58 Or. 333,113 Pac. 863.

But in the case of State v. Meath, 84 Wash. 302, 147 Pac. 11, the doctrine of the Oregon court is by a majority opinion denied, and its conclusions rejected. Other cases also hold that the question is one for court review. State v. Whisman, 36 S. D. 260, 154 N. W. 711, L. R. A. 1917B, 1; Miami County v. City of Dayton, 92 Ohio St. 215, 110 N. E. 728; Attorney General v. Lindsay, 178 Mich. 542, 145 N. W. 98.

Obviously the test is the extent to which legislative power is limited by the Constitution. Constitutional limitations are subjects of judicial interpretation and effectuation. Questions of public policy, such as the justice, expediency, necessity, or urgency (immediate necessity) of laws are for fina. legislative determination. But the contrcl the Legislature of even these questions may be qualified by express constitutional limitation.

The only Maine case touching the subject is Lemaire v. Crockett, 116 Me. 267, 101 Atl. 302. This case is not directly in point, because it involves one of the express limitations of the Constitution. Though it may deem an act which is an "infringement of the right of home rule for municipalities" to be immediately necessary, the Legislature is forbidden by the positive mandate of the Constitution to give it immmediate effect. Whether a given act is such an infringement is a judicial question. The case of Lemaire v. Crockett does not reach the question concerning which courts differ so radically; i. e., whether the words, "An emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety," or other similar language, creates a limitation upon legislative power which the courts have jurisdiction to interpret and give effect to.

We are mindful of the long-established rule that questions of constitutional law should not be passed upon, unless strictly necessary to a decision of the cause under consideration. We therefore defer expressing a final opinion upon the question concerning which, as appears above, courts are at variance, because, for another reason not touched upon in any of the above-cited cases, we hold that chapter 112 did not take immediate effect as an emergency act.

Of the states that have provided for giving emergency acts immediate effect,...