State v. Becker

• Decision Date: 05 April 1892
• Citation: 3 S.D. 29,51 N.W. 1018
• Parties: STATE OF SOUTH DAKOTA, Plaintiff in error, v. BECKER, Defendant in error.
• Court: South Dakota Supreme Court

3 S.D. 29

51 N.W. 1018

STATE OF SOUTH DAKOTA, Plaintiff in error,

v.

BECKER, Defendant in error. South Dakota Supreme Court Error to County Court, Yankton County, SD Hon. Edwin White, Judge Reversed. Robert Dollard, Attorney General L. B. French, State’s Attorney V. Y. Barnes, B. W. Burleigh and S. A. Boyles Attorneys for plaintiff in error. Hugh J. Campbell, Phil. K. Faulk Attorneys for defendant in error. Opinion filed April 5, 1892

KELLAM, P. J.

This case comes to this court on a writ of error to the county court of Yankton county. In the court below the defendant in error was charged by information with the offense of keeping and maintaining a common nuisance in the city and county of Yankton; the information setting out the specific facts relied upon to constitute the offense under section 13, c. 101, Laws 1890. To this information defendant in error demurred on the following grounds: (1) “That said complaint or information is not brought or presented in behalf of or by the authority of the state of South Dakota, or in the name of said state, but that the person who signs said information or complaint, and who prosecutes this action, never had, nor now has, any authority of law to inquire into the offense charged therein, or to make or sign this information, or to bring or prosecute this action; and that the court for this cause has no jurisdiction of the same.” (2) “That said information or complaint does not substantially conform to the requirements of the Code of Criminal Procedure and the laws of this state.” (3) “That more than one offense is charged in the said information or complaint.” (4) “That the facts stated in said information or complaint do not constitute a public offense against any law.” The court sustained the demurrer, and discharged defendant in error. The state brings the record to this court for review.

Under the first proposition named as a ground of demurrer it is contended that this proceeding “is not prosecuted by any person known to the law, or having the authority to prosecute it in the name of the state.” The information is presented by V. V. Barnes, an attorney of this court. One of its verified statements is that he was duly appointed by the attorney general to do any act that the state’s attorney might do under said chapter 101, Laws 1890. Section 12 of that law authorizes the attorney general, in certain contingencies, to appoint such reputable attorney as he shall see fit, who “shall be authorized to sign, verify, and file all such … informations … and papers as the state’s attorney is authorized to sign, verify, and file, and to perform any act that the state’s attorney might lawfully do or perform.” The contention of defendant in error is that the legislature could not lawfully empower the attorney general to make this appointment; that it was the creation of a new office; and, while the legislature might do this, it could not authorize the attorney general to do so. This position cannot be maintained. The office of the attorney general is a constitutional office, but his duties “shall be as prescribed by law,” (section 13, art. 4, Const.;) and so with the office of state’s attorney. “The legislature shall have power to provide for state’s attorneys, and to prescribe their duties.” Section 24, art. 5, Const. It is thus left with the legislature to define the powers and duties of each of these officers. The attorney general is in the same department of service as the state’s attorney, but having a larger jurisdiction, and is in a sense a superior and supervising officer. We have no doubt but that it would be competent for the legislature to authorize the attorney general to appoint an assistant for himself, or an assistant or deputy state’s attorney in any county, naming the conditions under which such appointment might be made. This would not be delegating to the attorney general the legislative power to create a new office, any more than a law authorizing a sheriff or register of deeds to appoint a deputy whenever a proper discharge of his official duties required it. It is no objection that a statutory law authorizes the appointment of a deputy to a constitutional officer, and such a law may empower such deputy to discharge official duties in his own name. Touchard v. Crow, 29 Cal. 150; Calendar v. Olcott, 1 Mich. 344; Ross v. Newman, 26 Tex. 134. Very nearly this same question was raised and decided in Re Gilson, 34 Kan. 611, 9 Pac. 763, where a provision of their prohibitory law (of which the one under consideration is nearly a copy) was sustained; and it was further held that it could not be collaterally questioned that the appointment was duly made, and for sufficient reasons. Again, it is urged by defendant in error that, even if it were competent for the legislature to authorise, and for the attorney general to appoint, still it was necessary that the fact of such appointment should be made to appear by official evidence; and that the averment of the information was not sufficient to show the appointee’s authority to prosecute. Defendant in error cannot raise that question of fact upon this law issue. His demurrer to the information admits all the facts alleged, and the appointment in question is one of them. The effect of a demurrer is the same in criminal actions as in civil. Wharton, Crim. Pl. & Pr. § 403.

It is further objected that the information is defective and insufficient, because made simply upon the information and belief of the prosecutor. Whether a complaint in the nature of a criminal information, verified by a private person on his information and belief, is sufficient, is not the question we have now to answer. We have already expressed an opinion that leads directly to the conclusion that this information must be treated as though made officially by the attorney general or the state’s attorney, and we feel sure that the very exemplary and eminent counsel who presented this case for defendant in error in this court would not have us hold that, while the attorney general and the state’s attorneys are charged with the enforcement of this law, in order to qualify himself for making an information under it, each must seek and possess himself of personal knowledge of its violation. When the information in a criminal proceeding is made by the attorney general or state’s attorney as such, it may be upon his information and belief, (Washburn v. People, 10 Mich. 38555; State v. Montgomery, 8 Kan. 351; State v. Druitt, (Kan.) 22 Pac. 6970 and, in the absence of statute, without any verification at all, as at common law, (1 Chit. Crim. Law, 845; State v. Dover, 9 NH 468; State v. Ransberger, 42 Mo. App. 466; Territory v. Cutinola, (NM) 14 Pac. 809).

The second and third grounds of demurrer are not argued. This brings us to the most important question in the case, to-wit, is the law itself a valid and constitutional expression of legislative authority? Before entering upon the examination of the particular question involved, it may be well, though it can hardly be necessary, to refer to the general attitude of the courts in respect to the impeachment of legislative acts on account of repugnance to the constitutional law. The subject itself is always approached reluctantly, and with great caution. Its consideration should receive the most careful attention and the most patient deliberation; and only when the collision between the legislative and the fundamental law is certain and inevitable do the courts feel justified in declaring a law void. State v. Morgan,(1891). With the purpose or policy of a law the courts have no concern. That is a legislative, not a judicial, question. It is, in general, for the legislature to determine what ends are desirable to be accomplished, and to adopt the means which seem to it the best adapted to serve such ends; and the courts may only interfere when the ends so sought, or the means or measures so adopted, are plainly forbidden by the constitution. Cooley, Const. Lim. (5th Ed.) 203, and cases cited; Suth. St. Const. §§ 235, 237, and cases cited. In the matter, however, of the manufacture, sale, and keeping for sale of intoxicating liquors as a beverage the legislature itself has no discretion, except as to the particular measures to be employed for the enforcement of the prohibition declared in the constitution. The particular provision of the constitution which it is claimed this law violates is section 21, art. 3, which reads: “No law shall embrace more than one subject, which shall be expressed in the title.” This is a very common provision in state constitutions, but to make a correct and intelligent application of any rule of law to cases not plainly and palpably within its terms, the purpose of the rule must be understood and remembered. The object of this provision was at least double. It was to prevent bringing together into one bill measures diverse and foreign to each other, and by thus combining the friends of each, accomplish the passage of the several measures in one law, when perhaps no one of them could have passed on its own, merits. It was also intended to prevent the insertion into bills of matter or measures of which the title gave no notice or intimation, and thus to deceive or mislead the individual legislators and the public generally. Neither the members of the legislature, nor the people for whom the laws are made, can know the entire contents of every bill proposed as a law, but must depend to a large extent upon their titles to indicate their subject and scope. To limit every law to one general subject would ordinarily put each law upon its own merits, to be supported only by members unselfishly friendly to its policy; and to fairly indicate its subject by the title would prevent imposition and mistake. This is the theory and purpose of the rule, and the effort of the courts is and should be to so apply it as to guard against the danger intended to be...