Powell v. State

• Decision Date: 31 May 1923
• Docket Number: No. 24127.,24127.
• Citation: 139 N.E. 670,193 Ind. 258
• Parties: POWELL v. STATE.
• Court: Indiana Supreme Court

193 Ind. 258

139 N.E. 670

POWELL

v.STATE.

No. 24127.

Supreme Court of Indiana.

May 31, 1923.

Appeal from Superior Court, St. Joseph County; Arthur N. Hildebrand, Judge.

Louis Powell was convicted of possessing intoxicating liquor, and he appeals. Reversed, with instructions.

Shively, Gilmer, Arnold & Doran and Dudley M. Shively, all of South Bend, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

MYERS, J.

Appellant, in the court below, was charged by affidavit, tried and convicted of having intoxicating liquor in his possession. Section 1, Acts 1921, p. 736, amending section 4, Acts 1917, p. 15.

The affidavit was in two counts. The first charged unlawful possession of intoxicating liquor, and the second the unlawful receiving of intoxicating liquor from a carrier. The second count was withdrawn from the jury.

Appellant's motion in arrest, on the ground that the affidavit did not state facts sufficient to constitute a public offense, was overruled. This ruling, and the overruling of his motion for a new trial, are assigned as errors.

The legality of appellant's conviction is made to depend upon whether or not an indictment or affidavit charging the mere possession alone of intoxicating liquors states a public offense. Appellant has duly presented this question both by his motion in arrest and by his motion for a new trial, wherein he assigned as causes therefor certain instructions by him tendered and by the court refused.

Section 1, supra, contains the word “possess,” thereby adding an offense not intended to be created by the act amended. On behalf of appellant it is asserted that the new offense is not a matter within the title of the act thus amended, and as the title of the latter act was not amended to include the new offense, the amendment in the particular mentioned was therefore unconstitutional and void under article 4, § 19, Constitution of Indiana. On the part of the state it is insisted that while the word “possess” was not included in the title of the old act, yet, as the prohibition of the possession of liquor was a reasonable incident to the enforcement of the other provisions of the same law, it was therefore within the purview of the subject of the original act.

[1][2][3] This precise question was presented, fully considered and decided against the contention of the state, in case No. 24126, Crabbs v. State, 139 N. E. 180, this term. However, the Attorney General seems to have the impression that the statute in question is governed by some exceptional constitutional principle not applicable to statutes generally. As we are advised by the decided cases and by text-writers on constitutional law, constitutional declarations, regardless of the subject-matter, are imperative on legislative action unless they obviously and unmistakably, appear to be merely directory.

The particular constitutional provision involved in the instant case is explicit, admits of no doubt, and is mandatory; hence, the question whether or not the title of the amended act in question is broad enough to let in the amendment is a judicial one to be decided by the court, like all other questions involving important consequences. However, it may be noted that legislative action is presumed to be constitutional, and it will be so declared unless its invalidity is clearly shown. With these elementary principles in mind, and assuming that all are familiar with the constitutional provision (section 19, art. 4), we submit these additional observations.

The difficulty in most cases where the title to a statute is involved is in determining with legal precision the subject of the act, as well as the matter properly connected with that subject. In the case at bar, let it be conceded that the subject of the 1917 act, supra, is “intoxicating liquor.” If it be granted that this subject is sufficiently comprehensive to admit the word “possess” as a matter properly connected therewith, nevertheless the Legislature, as it had the power to do, clearly and undoubtedly intended to restrict the matters connected with the subject of the act to those therein specifically stated. It will not do to say that the matters thus positively, limited to the subject may be, by construction, enlarged to let in a matter plainly never contemplated by the framers of the title. The failure of the Attorney General to notice the restrictions placed upon the matters intended to be considered properly connected with the subject of this particular legislation, defeats his contention which rests entirely upon what the Legislature might have done under the general subject of the act, rather than what it did actually do. Cooley, Const. Lim. (7th Ed.) 212.

Our attention has been called to the following decisions of this court: State v. Adamson, 14 Ind. 296;Thomasson v. State, 15 Ind. 449;Hingle v. State, 24 Ind. 28;Williams v. State, 48 Ind. 306;State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313. All of these cases, save one, originated through an alleged violation in one form or another of the liquor laws of this state, wherein the title of the act defining the offense charged was attacked. In each of these cases, whether for the giving of intoxicating liquor to a minor, selling on Sunday, giving to a person in the habit of becoming intoxicated, for failure to provide a separate room for the sale of intoxicating liquor, or the conferring of jurisdiction on both the common pleas and circuit courts to try liquor violations, the titles of the several acts thus questioned invariably were “An act to regulate and license,” or “An act to better regulate and restrict,” but none of these titles evinced a purpose or intention of the Legislature to expressly restrict the matters connected with the subject; hence, the cases thus relied on by the state may be readily distinguished from the case at bar.

Reference has been made to other decisions of this court, on other subjects involving questions similar to the one now before us, but, after a careful examination of each of these decisions, we are convinced that they have no controlling influence on the present controverted question.

Among the cases cited by the Attorney General from other jurisdictions, it seems that he has selected and especially relies on the case of In re Crane, 27 Idaho, 671, 151 Pac. 1006, L. R. A. 1918A, 942. Crane was arrested upon a charge of having intoxicating liquor in his possession in Latah county, Idaho, which, under the law of that state, was a prohibition district. Crane sought a writ of habeas corpus to procure his release from custody. He challenged the validity of that law upon several grounds, one of which was that the alleged offense of possession of intoxicating liquor defined by the act was not expressed in its title, and hence the possession clause was unconstitutional and void because in violation of section 16, art. 3, of the Idaho Constitution. The Idaho Constitution, in the particular mentioned, is practically the same as the Constitution of this state. The title of the Idaho Act (Laws 1915, c. 11) is as follows:

“Defining prohibition districts and regulating and prohibiting the manufacture, sale, keeping for sale *** or gift, and traffic in intoxicating liquors and prohibiting drinking and drunkenness in public places in such prohibition districts, and fixing fines and penalties, and repealing chapter 27 and chapter 99 of the Session Laws of 1913.”

The court, in denying the writ, said:

“The act under consideration treats of but one general subject, namely, to limit the use of intoxicating liquors. There is nothing contained in the act that is not germane to the general subject or purpose expressed in the title.”

We have no fault to find with this ruling. In fact, it is in line with the decisions of this court under like facts and circumstances. In preparing the matters properly connected with the subject of the act, the word “regulating” was used in its broad sense. The language with which it is connected at once suggests power and authority to enact laws essential and germane to the subject expressed in the title. The marked difference in the legal effect of the title to the Idaho act and the one before us, namely, “An act prohibiting the manufacture, sale, gift, advertisement or transportation of intoxicating liquor except for certain purposes and under certain conditions,” precludes every reasonable effort to harmonize them into one common acceptation.

The case of Crane v. Campbell, Sheriff, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304, is cited by the state. This is the Idaho case in the Supreme Court of the United States, where the sole question presented and decided was: Did the Idaho law contravene section 1 of the Fourteenth Amendment to the federal Constitution? It was answered in the negative. The power of a state to enact laws tending to suppress traffic in intoxicating liquors was reaffirmed. We have no such question in the instant case.

The state also relies on the case of Street v. Lincoln (D. C.) 267 Fed. 706. The complainant in that case was the lessee of certain rooms in a storage warehouse operated by the defendant company, in which rooms he had a quantity of lawfully acquired liquors. It was alleged that the revenue officers were asserting and claiming that the continued possession of such liquors would subject both the complainant and the company to the penalties of the act; that the...