People v. Morgan
| Decision Date | 24 May 1926 |
| Docket Number | 11353. |
| Parties | PEOPLE v. MORGAN. |
| Court | Colorado Supreme Court |
Error to Moffat County Court; F. D. Guinn, Judge.
Information was filed against Chester Morgan, charging him with driving sheep into Moffat county from the state of Wyoming without having notified the sheriff of his intention. Motion to quash the information was sustained, and the State brings error.
Judgment approved.
William L. Boatright, Atty. Gen., Jean S Breitenstein, Asst. Atty. Gen., and C. R. Monson, Dist Atty., of Steamboat Springs, for the People.
Brimmer & Brimmer, of Rawlins, Wyo., and George A. Pughe, of Craig for defendant in error.
An information was filed in the county court of Moffat county charging the defendant, Chester Morgan, with driving sheep into that county from the state of Wyoming without having notified the sheriff of Moffat county ten days before the crossing of the Colorado state line of his intention to do so. The law alleged to have been violated is what is known as the 'Migratory Stock Act' of the Colorado Legislature (Laws 1925, c. 165, pp. 489-491). Defendant filed a motion to quash the information, on the ground that the statute is in violation of the Constitution of the United States, and consequently void. The court sustained the motion, and defendant was discharged. A writ of error on behalf of the people has been sued out from this court to review the judgment, pursuant to the provisions of C. L. 1921, § 7113.
The act under scrutiny, the claimed to be void (Laws 1925, c. 165), is entitled:
'An act in relation to the regulation of the live stock industry; defining migratory live stock; providing for the suppression and inspection of disease among same; affixing an inspection fee and providing a penalty for the violation of this act and declaring an emergency.'
The salient parts of the text are as follows:
'Section 1. By the term 'migratory live stock' is meant such live stock as is temporarily kept, driven or pastured or suffered to range or graze for temporary period of not less than 10 days in this state from adjoining states.
'Section 2. Whenever any migratory live stock is driven into or pastured or suffered to range or graze in this state from an adjoining state, the owner thereof or his agent, shall ten days before crossing the state line notify the sheriff of the county into which such entry is made of such entry. It shall be the duty of the sheriff of each county to inspect or cause to be inspected any migratory live stock within the county, for the purpose of determining whether or not such live stock is affected with any infectious, contagious or communicable disease.
'Section 3. Should the sheriff or other person designated by him as inspector find such migratory live stock to be affected with any infectious, contagious or communicable disease, the state board of live stock inspection, or other state officer who may be empowered and authorized to place under quarantine any live stock so affected or infected shall be notified immediately by such officer so that any necessary action may be taken by such board or officer for the control or eradication of such disease.
'Section 4. In carrying out the provisions of this act, the sheriff or his deputy or inspector appointed by the sheriff shall collect a fee of 50 cents per head on all cattle and horses and 25 cents per head on all sheep or goats entering the state of Colorado from another state for the purpose of ranging or grazing within this state. All fees so collected shall be paid monthly by the sheriff to the county treasurer for deposit in the general fund of the county.
'Section 5. Any person, firm or corporation violating any of the provisions of this act shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $100 and not more than $1,000 or by imprisonment of a term of not to exceed 6 months, or by both such fine and imprisonment.
'Section 6. Nothing in this act shall apply to live stock grazing solely upon any body of lands intersected by or contiguous to the Colorado boundary line and which lands are in the exclusive ownership, use, or possession of the owner of such live stock, or to live stock in transit, or feeding in transit through this state by railroad or other means of public transportation, nor shall it be construed as affecting live stock owned by residents of this state which are ranged a portion of the year in adjoining states, or which are taken into adjoining states for shipment back into this state, and no railroad company shall be liable for any penalty for receiving and shipping such live stock.
Section 7. If any section, paragraph, clause, word or phrase in this act shall be declared unconstitutional the invalidity thereof shall not affect the remainder of this act.'
1. In the construction of the statute, the following well-known rules will be applied:
The statute will be sustained, if possible. Reid v. Colorado, 187 U.S. 137, 153, 23 S.Ct. 92, 47 L.Ed. 108; Smith v. Mahoney, 22 Ariz. 342, 197 P. 704.
The act will be harmonized to give effect to every clause and section, if it can be done. Campbell v. People, 78 Colo. 131, 239 P. 879.
The legislative intent will be ascertained and given effect, if possible. Board of County Commissioners of City and County of Denver v. Lunney, 46 Colo. 403, 415, 104 P. 945, and cases there cited.
If the statute be found to be partly constitutional and partly unconstitutional, and the invalid part is severable, the valid part may stand, while the invalid is rejected. Newman v. People, 23 Colo. 300, 309, 47 P. 278; Standard Lumber Co. v. Pierce, 112 Or. 314, 228 P. 812; 1 Lewis' Statutory Construction, 576, § 296.
The good faith of the Legislature will be presumed. Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455; New Mexico ex rel. McLean v. Denver & Rio Grande R. R. Co., 203 U.S. 38, 55, 27 S.Ct. 1, 51 L.Ed. 78.
Independently of any question of intent, a state enactment is void, if by its necessary operation it destroys rights granted or secured by the Constitution of the United States. Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 35 L.Ed. 862.
2. Section 6 of the above act of the Legislature provides, among other things, that it does not affect live stock owned by residents of this state which are ranged a portion of the year in adjoining states, or which are taken for shipment back into this state. By sections 1, 2, and subsequent sections, the act is made to apply to migratory live stock driven into, or suffered to range or graze in, this state from adjoining states. In other words, one rule is made for residents of Colorado and another for nonresidents. If inspection is necessary for the one, it is necessary for the other.
The above discrimination is repugnant to clause 1, § 2, art. 4, of the Constitution of the United States, which entitles the citizens of each state to all privileges and immunities of citizens in the several states. It is also contrary to that part of section 1 of the Fourteenth Amendment to the Constitution of the United States which forbids any state from making or enforcing any law abridging the privileges and immunities of the citizens of the United States.
For the above reasons, section 6 of the Migratory Live Stock Law, creating such discrimination, cannot be sustained. Leonard v. Reed, 46 Colo. 307, 104 P. 410, 133 Am.St.Rep. 77; Smith v. Farr, 46 Colo. 364, 104 P. 401; Carbon County Sheep and Cattle Co. v. County Commissioners of Routt County, 60 Colo. 224, 152 P. 903.
3. The elimination of section 6 of the act suggests the question as to whether the remaining portion of the law can be sustained, under the provisions of section 7--the effect on the remainder when a part has been declared unconstitutional.
We would give effect to the remainder if we could, if otherwise, valid, and in keeping with the intention of the Legislature. But from the standpoint of the legislative intent, it cannot be sustained. To uphold the law, it would have to be made applicable to residents of Colorado, whereas the act itself plainly declares that such is not its purpose.
In order to sustain the statute, we would have to create a valid measure out of an invalid one by inserting provisions that the act does...
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