State v. Becker
| Decision Date | 05 April 1892 |
| Citation | 51 N.W. 1018,3 S.D. 29 |
| Parties | State v. Becker. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Section 12, c. 101, Laws 1890, which provides that under certain conditions, therein named, the attorney general shall appoint some reputable attorney for the purpose of enforcing said law, and that such appointee shall have authority to sign, verify, and file all such complaints, informations indictments, petitions, and papers as the state's attorney is authorized to sign, etc., and to do any act that such state's attorney might lawfully do, is not invalid in that it attempts to confer upon the attorney general the power to create a new office.
2. The fact that the prosecutor in this case had been so appointed being properly alleged in the information, defendant in error could not, in an issue made by demurrer to the information raise the question that his authority should be made to appear by evidence other than the averment of the information. The fact of the appointment was admitted by demurring.
3. An information in a criminal proceeding in the county court under said chapter 101 may be made by the attorney general or a state's attorney on his information and belief.
4. It is only when the collision between the legislative and the constitutional law is certain and inevitable that the courts feel justified in declaring a law void on that account.
5. The object of section 21, art. 3, of the constitution, providing that "no law shall embrace more than one subject, which shall be expressed in the title," is to prevent bringing together into one act measures diverse and foreign to each other, with a view of combining the friends of each, and thus to accomplish the passage in one law of the several measures which could not have passed on their individual merits, and also to prevent the insertion into bills of matter or measures of which the title gave no notice, and thus to deceive and mislead individual legislators and the public generally.
6. The disposition of the courts is general to construe this constitutional provision liberally, rather than to embarrass or defeat legislation by a construction whose strictness is unnecessary to accomplish the beneficial purposes for which it was adopted.
7. The reason for the rule that duplicity in the title and in the law is fatal to the law is the inability of the court to determine which of the different subjects named the legislature intended as the subject of the law, and when the reason fails the rule fails, and so the rule applies only where such inability actually exists.
8. As to said chapter 101 there is no such inability, for its title expressly declares that it is intended to enforce "the provisions of article 24 of the constitution," and the provisions of that article cover only the manufacture, sale and keeping for sale of intoxicating liquors, and not the use of such liquors; so that if it were, for any reason, incompetent for the legislature, in that law, to legislate against the use of such liquors, the subject of the use might be dropped from both the title and the law, if, such subject being rejected, that which remains is a complete and sensible law, and capable of being executed in accordance with the apparent legislative intent.
9. It is not necessary, in order to make such rejection allowable, that the obnoxious subject or matters be contained in independent provisions. The test is whether they are essentially and inseparably connected in substance.
10. Whether any portion or provision of a law is invalid because it violates the constitutional rights of the citizen, or because it violates a constitutional rule of legislation, its relation to the balance of the law is the same, and may be rejected from the law under the same conditions.
11. The subject of the use of intoxicating liquors may be dropped from the title and from the provisions of the law without affecting the balance of the law.
12. The punishment imposed by section 13, c. 101, Laws 1890, for the first offense of keeping and maintaining a common nuisance is not a "cruel punishment," within the meaning of section 23, art. 6, of the constitution, and such provision is not unconstitutional on that account.
13. Article 24 of the constitution declares a policy single in its ultimate purpose and object, but a law for its enforcement must necessarily, and therefore may legally, include the employment of many measures and the attainment of many ends, not as independent objects or subjects of legislation, but as auxiliary to the final purpose sought.
14. It is a well established and wholesome rule of law that no one can take advantage of the unconstitutionality of an independent provision of a law, who has no interest in and is not affected by such provision.
Error to Yankton county court; EDWIN T. WHITE, Judge.
Information against John Becker for keeping and maintaining a common nuisance. Judgment for defendant on demurrer to the information. Plaintiff brings error. Reversed.
Robert Dollard, Atty. Gen., L. B. French, State's Atty., V. V. Barnes, B. W. Burleigh, and S. A. Boyles, for the State. Hugh J. Campbell andPhil K. Faulk, for defendant in error.
This case comes to this court on 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, 20 Cal. 150; Calender 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. 641, 9 P. 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 authorize, 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...
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