Robertson v. People, 3,341.

• Decision Date: 29 October 1894
• Docket Number: 3,341.
• Citation: 20 Colo. 279,38 P. 326
• Court: Colorado Supreme Court
• Parties: ROBERTSON v. PEOPLE.

38 P. 326

20 Colo. 279

ROBERTSON v. PEOPLE.

No. 3,341.

Supreme Court of Colorado

October 29, 1894

Error to district court, Fremont county.

William E. Robertson was convicted of receiving a deposit in the Chaffee County Bank, of which he was manager, from James Taggert, knowing at the time he received it that the bank was insolvent, and brings error. Affirmed.

The plaintiff in error was convicted for receiving a deposit of $254.70 from one James Taggert, in the Chaffee County Bank of which he was at the time the owner and manager, knowing at the time that said bank was insolvent. The prosecution was had under the act entitled 'An act to provide for the punishment of a person receiving deposits in, or creating indebtedness by, any bank or banking institution with knowledge of the insolvency of such bank or banking institution,' approved April 7, 1885, and found on page 50 of the Session Laws of 1885. The information upon which the prosecution was based, omitting the formal parts, was as follows: 'That William E. Robertson, late of the county of Chaffee and state aforesaid, on, to wit, the 30th day of June in the year of our Lord one thousand eight hundred and ninety-three, then and there being a banker and manager and cashier of a certain bank and banking institution doing banking business under the name and style of the Chaffee County Bank, in the county of Chaffee and state of Colorado he, the said William E. Robertson, being the only person known to the district attorney operating and owning the said bank and banking institution, did then and there fraudulently, knowingly, and feloniously receive and assent to the reception of a certain deposit of money, to wit, the sum of two hundred and fifty-four dollars and seventy cents in money, of the value of two hundred and fifty-four dollars and seventy cents, of the personal property and moneys of one James Taggert, by said banker, and in said bank and banking institution, the said banker, bank, and banking institution then and there being, and for a long time prior thereto insolvent, and that he, the said William E. Robertson, at the time and before the reception of the deposit, had full knowledge of the fact that the said banker, bank, and banking institution were insolvent; and so, in manner and form and by the means aforesaid, he, the said William E. Robertson, did then and there feloniously steal, take, and carry away the said two hundred and fifty-four dollars and seventy cents in money, of the value of two hundred and fifty-four dollars and seventy cents, of the personal property and moneys of the said James Taggert, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Colorado.' The sufficiency of the information, in matter of form, is not questioned, but a motion to quash was interposed upon the following grounds: 'That the facts alleged in said information do not constitute any criminal offense at common law, or under the statutes of the state of Colorado. That the statute upon which said information is based is unconstitutional and void in this, to wit: (1) Said statute undertakes to make larceny an act which the legislature had no power to make larceny, as defined and limited by the common law and the statute of the state of Colorado. (2) Said statute is special and class legislation, and violates subdivision twenty-four of section 25 of article 5 of the constitution of the state of Colorado, which reads, 'In all other cases where a general law can be made applicable no special law shall be enacted.' (3) Said statute is in violation of section 3 of the bill of rights of the constitution of the state of Colorado, which reads, 'That all persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness.' (4) Said statute is in violation of section 12 of said bill of rights, which reads, 'No person shall be imprisoned for debt unless * * * where there is a strong presumption of fraud.' (5) Said statute is in violation of section 25 of said bill of rights, which reads, 'That no person shall be deprived of life, liberty or property, without due process of law.' (6) Said statute is in violation of article 14 of amendments to the constitution of the United States, which declares (section 1): 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.' (7) Said statute is unconstitutional and void because, in its present form, or in the form in which it was signed by the executive, it never had a third reading in the house of representatives of the state of Colorado, and in said form was never placed upon a third reading and final passage in the house of representatives, as appears by the journal of said house of representatives for the year A. D. 1885.' This motion was overruled, and the same questions were again presented upon an objection to the introduction of any evidence under the information upon the trial, and again by a motion for new trial and in arrest of judgment. Trial resulted in conviction, and the plaintiff in error was sentenced to confinement in the penitentiary for the term of one year. To reverse this sentence and judgment, plaintiff in error brings the case here upon error.

Waldo & Dawson and Theodore Martin, for plaintiff in error.

Eugene Engley, Atty. Gen., and H. T. Sale, Asst. Atty. Gen., for the People.

GODDARD J. (after stating the facts).

It is urged upon this review that the court below erred in overruling the motion to quash the information and the motion in arrest of judgment, for the reasons therein assigned, to wit, that the act in question was never enacted in accordance with the requirements of the constitution of this state; and, second, that if constitutionally enacted it is void by reason of conflict with the constitutional provisions set forth. In the determination of the first of these objections, we agree with counsel for plaintiff in error that resort may be had to the journals of the two houses to ascertain the steps that were taken by each of these bodies in the passage of the act, and thereby determine whether it was passed in conformity to the constitutional requirements. This doctrine was announced as the law in this state in Re Roberts, 5 Colo. 525, and again recognized in the case of Nesbit v. People, 19 Colo. 441, 36 P. 221. An examination of the journals of the 5th general assembly discloses that the bill for the act was introduced in the senate, and regularly passed, and while pending in the house the same was amended by adding the following section: 'It shall be the duty of each and every bank, banking association, firm and individual doing business as bankers in this state, by whom deposits of money, or its equivalent, are or shall be received to publish in a newspaper having a general circulation in the county in which such business is or shall be done, on the first days of January, April, July and October of each and every year, a full statement of the assets and liabilities of such bank, banking association, firm or individual, showing the amount of capital invested, the amount of deposits, and all other items that will tend to show the true condition of such banking business. The correctness of such statement shall be attested by the chief managing officer of the business of such bank or banker,'--and with this amendment was regularly passed by the house; the ayes and nays being called, and entered upon the journal. Upon its return to the senate the senate refused to concur in the house amendment, and thereupon a committee of conference was appointed by the two houses. This committee recommended that the house recede from its amendment. Upon consideration of this report by the house, the question being, 'Shall the house recede from the amendment, and adopt the report of the committee?' the ayes and nays were had, and entered upon the journal, and, a constitutional majority voting in the affirmative, the report was adopted.

It is insisted by counsel for plaintiff in error that although the house passed the bill, as amended, by a constitutional majority, and afterwards receded from its amendment by a like vote, by its failure thereafter to repass the bill there was a noncompliance with section 22, art. 5, of the constitution which provides, inter alia, that 'no bill shall become a law except by vote of a majority of all the members elected to each house; nor unless on its final passage the vote be taken by ayes and nays, and the names of those voting be entered on the journal.' The primary purpose of this provision is to secure the approval of a bill by a majority of the members elected to each house, as a condition to its becoming a law; and when the procedure had in the respective houses has accomplished that purpose, and a bill has so received such approval, the requirements of the provision have been complied with. As shown by its journal, the house passed the bill as it came from the senate, with a section added, in strict conformity to the constitutional requirement, by a vote thereon taken by ayes and nays, and entered on the journal, thereby approving the bill, including the amendment. Thereafter, by an aye and nay vote...