State v. Armstrong.

• Decision Date: 31 December 1924
• Docket Number: No. 2947.,2947.
• Citation: 243 P. 333,31 N.M. 220
• Parties: STATEv.ARMSTRONG.
• Court: New Mexico Supreme Court

31 N.M. 220

243 P. 333

STATE

v.ARMSTRONG.

No. 2947.

Supreme Court of New Mexico.

Dec. 31, 1924.

Syllabus by the Court.

The following portion of the title to chapter 118 of the Laws of 1923, to wit, “An act to enforce the provisions of article 18, of the amendments to the Constitution of the United States, prohibiting all acts or omissions prohibited by the National Prohibition Act, imposing duties on courts, prosecuting attorneys, sheriffs and other officers and extending their jurisdiction,” expresses the subject of that enactment with sufficient clearness to comply with the requirements of section 19 of article 4 of the Constitution of New Mexico, which provides that the subject of every bill shall be clearly expressed in its title.

In the absence of a constitutional provision so forbidding, one statute may adopt specific provisions of another by a descriptive and specific reference thereto; the effect being as if so much of the adopted act as is so referred to and adopted had been copied therein.

Chapter 118, Laws 1923, is a “reference statute,” and the declaratory portion thereof is sufficient to meet the requirements of section 15, art. 4, of the Constitution of New Mexico, which provides that “no law shall be passed except by a bill.”

Chapter 118 of the Laws of 1923 does not, in adopting certain provisions from the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.) by reference only, without setting them out in full, purport to extend, enlarge, or otherwise change the National Prohibition Act, and is not in conflict with section 18 of article 4 of the Constitution of New Mexico, which provides that “no law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.”

This constitutional provision applies to a previous law whose provisions are sought to be extended, and not to the provisions of the law being enacted.

Laws in this state become effective at fixed dates after the Legislature adjourns, or after their passage, whether published or not, and the publication of any law is not a condition precedent to its effective operation.

The requirement in section 12 of article 20 that laws be published in both English and Spanish relates to the publication of such laws in the form of their enactment.

Where a law in the form as enacted by the Legislature is enrolled and engrossed, and read publicly in full in each house, and deposited with the secretary of state, the constitutional requirements of sections 20 and 22 of article 4 of the Constitution, relative thereto, are fully met.

On Rehearing.

Syllabus by the Court.

Sections 1 and 2, c. 118, Laws 1923, attempting to adopt by reference the penal provisions of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), as the law of this state, violate article 4, § 18 of the Constitution, in that they attempt to extend the provisions of that act by reference to its title only without setting the same out in full.

Additional Syllabus by Editorial Staff.

Eighteenth Amendment does not require state, in exercise of its concurrent power, to adopt same legislative policy as Congress, or to legislate at all.

Appeal from District Court, Quay County.

Carl Armstrong was convicted under Laws 1923, c. 118, §§ 1, 2, and he appeals. Reversed and remanded, with directions, on rehearing.

O. O. Askren, of East Las Vegas, for appellant.Milton J. Helmick, Atty. Gen., and John W. Armstrong, Asst. Atty. Gen., for the State.

FORT, J.

The appellant, Carl Armstrong, was charged by indictment with the possession of a still in violation of the provisions of title 2 of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/2 et seq.) and of chapter 118 of the Laws of New Mexico 1923 (hereinafter referred to as chapter 118). Upon arraignment he filed a motion to quash the indictment on the grounds that chapter 118 was unconstitutional and void in failing to define any crime or prescribe any punishment therefor. This motion was overruled, and upon the trial the defendant was convicted. The only errors alleged in the appeal from this conviction are in overruling the motion to quash the indictment.

In order to clearly understand the questions involved, it will be helpful to set out the title to chapter 118, and certain sections from the body of the act, as follows:

“ An act to enforce the provisions of article 18, of the amendments to the Constitution of the United States; prohibiting all acts or omissions prohibited by the National Prohibition Act, imposing duties on courts, prosecuting attorneys, sheriffs and other officers and extending their jurisdiction; authorizing the seizure of intoxicating liquor and vehicles used for the transportation or possession thereof in violation of law and providing for the disposition of such vehicle pending trial and for the sale of such vehicle and disposition of the proceeds thereof and protecting bona fide lien claimants thereto and providing for bringing into court the owners of property used for the illegal possession or transportation of intoxicating liquor other than defendants charged with such offenses and providing for the disposition of fines and forfeitures. * * * (Italics ours.)

Section 1. New Mexico hereby recognizes the requirements of the Eighteenth Amendment to the Constitution of the United States for its concurrent enforcement by the Congress and the several states. To that end, the penal provisions of the National Prohibition Act are hereby adopted as the law of this state; and the courts of this state are hereby vested with the jurisdiction, and the duty is hereby imposed upon all prosecuting attorneys, sheriffs, grand juries, magistrates, and peace officers in the state, to enforce the same.

Sec. 2. All acts or omissions prohibited or declared unlawful by the Eighteenth Amendment to the Constitution of the United States or by the National Prohibition Act are hereby prohibited and declared unlawful and violations thereof are subject to the penalties provided in the National Prohibition Act.

Sec. 3. New Mexico hereby recognizes that its power to enforce the Eighteenth Amendment to the Constitution of the United States should at all times be exercised in full concurrence with the exercise of the like power of Congress; and to that end, whenever Congress shall amend or repeal the National Prohibition Act, or enact any other law to enforce the Eighteenth Amendment to the Constitution of the United States, then the provisions of sections one and two of this act shall apply thereto.

Sec. 4. [This section provides for the seizure of vehicles unlawfully transporting intoxicating liquor, and their confiscation and sale, and the disposition of the proceeds of the sale.]

Sec. 5. [This section is a procedural requirement in connection with the proceedings outlined in section 4.]

Sec. 6. Nothing in this act shall be construed as limiting the power of any city, town or village, to prohibit the manufacture, sale, transportation or possession of intoxicating liquors for beverage purposes; and all fines and forfeitures collected under any ordinance now or hereafter enacted in the exercise of such power shall be paid into the treasury of the city, town or village, whose ordinance is violated.

Sec. 7. The phrase ‘National Prohibition Act’ as used herein is defined as title two of the act of Congress, enacted October 28, 1919; such title two being enacted under the authority of the Eighteenth Amendment to the Constitution of the United States and providing for the enforcement thereof.

Sec. 8. Should any section or any portion of any section of this act be found unconstitutional, the remainder shall continue in full force and effect, it being expressly declared that such is the intention.

Sec. 9. [This is the usual emergency clause.]

Chapter 118 was approved March 12, 1923. The italicized portions of the title, and the sections above set out in full, were copied by our Legislature from a California statute adopted by the Legislature of that state in 1921 (St. 1921, p. 79) and afterwards approved by referendum vote, except that the words Volstead Act” are used in the California law where “National Prohibition Act” are used in chapter 118. The California law was subsequently approved by the Supreme Court of that state as a valid and constitutional enactment, in the case of Ex parte Burke, 190 Cal. 326, 212 P. 193, decided on January 9, 1923, and prior to the adoption of chapter 118 by our Legislature.

Chapter 37 of the 1923 Laws of Nevada was adopted in February, 1923, by the Legislature of that state, similar in all respects to the California law, except an added repealing section, and the title, which is as follows:

“An act to make the provisions of the national prohibition act of the United States of America the law of the state of Nevada; and to repeal an act entitled ‘An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations, making the superintendent of the Nevada state police ex officio commissioner of prohibition, and defining his duties; and providing for the enforcement of this act, and prescribing penalties for the violation thereof,’ enacted pursuant to direct vote of the people, general election, November 5, 1918; and to repeal all acts in conflict herewith; and other matters connected therewith.”

The Nevada statute was in the case of Ex parte Mantell (Nev.) 216 P. 509, declared unconstitutional, by a divided court, on July 3, 1923.

This method of defining crimes and offenses, and naming penalties by reference to a federal statute, is unique, if not unusual, and has met with serious criticism by those intrusted with the enforcement of the law, and the public generally, because of the difficulty in thus arriving...