Simpkins v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: EDWARDS, J. EDWARDS, J.
• Citation: Simpkins v. State, 249 P. 168, 35 Okla. Crim. 143 (Okla. Crim. App. 1926)
• Decision Date: 22 April 1926
• Docket Number: A-5883.
• Parties: SIMPKINS v. STATE.

249 P. 168

35 Okla.Crim. 143

SIMPKINS v. STATE.

No. A-5883.

Court of Criminal Appeals of Oklahoma

April 22, 1926

On Rehearing September 18, 1926.

Syllabus by the Court.

The primary rule of construction of statutes, where their validity is attacked on the ground of constitutionality, is to uphold where possible the validity of such statute.

That part of section 3, chapter 16, Session Laws 1923, defining the offense of operating or driving a motor vehicle on the highways of the state by a person under the influence of intoxicating liquor, is not in violation of section 57 article 5, of the Constitution.

While the word "regulate" (regulating), used in the title of chapter 16, Session Laws 1923, does not confer the right to prohibit, yet in exercising the power to regulate there may be incidental prohibition or forbidding, and the exercise of such right is not beyond the scope of the title as to render it unconstitutional.

In criminal cases, the Legislature may by law enact that the proof of certain facts shall be prima facie evidence of the existence of some other fact, but the fact or facts upon which such presumption is to rest must fairly relate to, and have a natural connection with, the presumption. The fact presumed from the fact proven must be natural, reasonable and not arbitrary.

That part of section 3, chapter 16, Laws 1923, which provides that the having intoxicating liquor on or about the person or in his vehicle by the driver of an automobile is prima facie evidence of a violation of said act, is an arbitrary and unreasonable presumption, and one beyond the power of the Legislature to establish.

That part of section 3, chapter 16, Session Laws 1923, making the possession of intoxicating liquor on the person or in his vehicle by the driver of an automobile prima facie evidence of intoxication, does not affect and render unconstitutional the remainder of said act; the fact of intoxication may be proven by any competent evidence.

Additional Syllabus by Editorial Staff.

"Regulate," as ordinarily used, means to subject to rules or restrictions, to adjust by rule or method, to govern, and is not synonymous with prohibit.

"Prohibit" means to forbid by law, to prevent, and is not synonymous with "regulate."

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Ed Simpkins was convicted of driving an automobile while intoxicated, and appeals. Modified and affirmed on rehearing.

Holcombe & Lohman, of Pawhuska, for plaintiff in error.

Geo. F Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on an information charging him with driving an automobile while intoxicated, and sentenced to pay a fine of $1,000, and to serve a term of 30 days in the state penitentiary.

The evidence is not extensive, and, briefly stated, is that, on the 22d day of March, 1925, the defendant drove an automobile on the streets of Pawhuska and along the state highway, some two miles and a half outside the city, where he was arrested. In the course of the driving he threw a bottle or part of a bottle of whisky from his car, and broke it on the pavement, and, when apprehended, had another bottle in the car. In driving the car he went at a high rate of speed, and from one side of the road to the other, almost overturned, narrowly missed colliding with other cars, and, when arrested. had turned his car crosswise in the road. The evidence is that he was intoxicated, voluble, and pugnacious.

Counsel for defendant have filed an able brief advancing and exhaustively presenting the following assignments of error: First, that section 3, chapter 16, Session Laws 1923, the act under which the prosecution was instituted, is unconstitutional as violative of section 57, article 5, of the Constitution; second, that said section 3 is void as being a legislative attempt to establish a rule of evidence.

Chapter 16 of the Session Laws of 1923 contains three sections; the first being a section of definition, the second providing the punishment for violation of certain of its provisions, the third making unlawful the driving by one under the influence of intoxicating liquor or by a drug addict, as follows:

"Section 3. It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one's person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1 of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment * * * and fine."

The title of the act reads:

"An act regulating the driving and operating of motor vehicles, providing punishment therefor, and repealing all laws in conflict therewith, and declaring an emergency."

Section 57, article 5, of the Constitution, in part requires that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. This section has been many times considered by the courts of this state. In re Fuller (Okl. Cr. App.) 238 P. 512; State ex rel., etc., v. Bonner, etc., 208 P. 825, 86 Okl. 280; Holcomb v. C., R.I. & P. Ry., 112 P. 1023, 27 Okl, 667; City of Pond Creek v. Haskell et al., 97 P. 338, 21 Okl. 711; Johnson v. Grady County, 150 P. 497, 50 Okl. 188; State v. Johnson, 215 P. 945, 90 Okl. 21.

Summing up the holding of these various authorities, it may be said that the intent of the provision of the Constitution referred to, section 57, art. 5, is to prevent the union in the same act of incongruous matters, and of objects having no connection or relation; to prevent surprise in legislation by having matters of one nature embraced where the title expresses another, or, as it is sometimes expressed, to prevent "hodge podge" or "log rolling" legislation; to prevent surprise or fraud upon the Legislature by means of provisions in bills where the title gives no intimation, and which might therefore be overlooked, or carelessly or unintentionally adopted, and to apprise, through such publications of legislative proceedings as is usually made, of the objects of legislation that are being considered, in order that the people may have opportunity to be heard thereon by petition or protest. It is held that the title of an act may be very general, and need not specify every clause in it if they are all referable and cognate to the subject expressed. The title is sufficient if it fairly indicates the general purpose of the act.

A primary rule of construction of statutes, where their validity is attacked upon constitutional ground, requires that the court shall guard against possible usurpation of power by holding an act valid, unless clearly a violation of the constitutional inhibition.

Having in mind the importance of making safe the use of the public highways, particularly those parts that are paved or otherwise hard surfaced, the necessity of proper regulatory enactments to minimize accidents from motor vehicles is apparent. That persons who are habitual users of narcotics and are not capable of discerning and avoiding danger, or persons whose reason and action may be dulled by alcoholic or narcotic indulgence, should be forbidden to drive motor vehicles upon a congested highway requires no argument. The safety of travelers and the rights of the public require regulation. Still, if the section in question clearly violates section 57, art. 5, as contended, the fact that the legislation is necessary and beneficial should not influence the court to hold it constitutional.

It is contended that section 3, supra, is not embraced in the title, since it "prohibits" driving by the class of persons designated, while the title confers only the power of "regulating" driving; that the words "regulate" and "prohibit" are in no sense synonymous, and the one does not embrace the other, citing: Titsworth v. State, 101 P. 288, 2 Okl. Cr. 268; Overton v. State, 114 P. 1132, 123 P. 175, 7 Okl. Cr. 203; Gastineau v. State, 124 P. 464, 7 Okl. Cr. 512; City of Emporia v. Volmer, 12 Kan. 622; Id., 12 Kan. 633; Bronson v. Oberlin, 41 Ohio St. 476, 52 Am. Rep. 90; People ex rel., etc., v. Busse, 88 N.E. 831, 240 Ill. 338; State ex rel., etc., v. Mc.Monies, 106 N.W. 454, 75 Neb. 443; City of Butte v. Paltrovich, 75 P. 521, 30 Mont. 18, 104 Am. St. Rep. 698; Johnson v. Philadelphia, 47 So. 526, 94 Miss. 34, 19 L. R. A. (N. S.) 637, 19 Ann. Cas. 103.

An examination of these authorities discloses that they do not sustain the contention made. Most of them turn upon the authority of a municipality to suppress or prohibit, under a grant of authority to regulate, some legitimate business...