State v. Bernheim

• Citation: 49 P. 441,19 Mont. 512
• Parties: STATE v. BERNHEIM.
• Decision Date: 17 May 1897
• Court: United States State Supreme Court of Montana

49 P. 441

19 Mont. 512

STATE v. BERNHEIM.

Supreme Court of Montana

May 17, 1897

Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.

J Bernheim was convicted of the unlawful sale of a railroad ticket, and appeals. Affirmed.

The defendant was informed against for having sold a railroad ticket in violation of the law. He was tried and convicted and appeals from the judgment of conviction. The law under which the defendant was convicted is entitled "An act to regulate the sale and redemption of transportation tickets of common carriers." Sess. Laws 1893, p. 150; also sections 978 to 984, inclusive, of the Civil Code of Montana. Section 1 of the original law provided that the owner of any railroad or steamboat shall provide each agent who is authorized to sell tickets with a certificate setting forth the authority of such agent. If the owner should be a corporation, then such certificate must be under the corporate seal. It is the duty of the agent to keep the certificate conspicuously posted for the information of travelers. He must also, within 10 days thereafter, exhibit the same to the secretary of state, and, upon payment of a license fee of one dollar, the secretary of state issues to such agent a license under the seal of the state of Montana, which authorizes persons so receiving the same to engage in the business of selling tickets of the common carrier from whom he holds his appointment. This license is also required to be kept conspicuously posted. Section 2 makes it unlawful for any person who has not thus been appointed to sell tickets. Section 3 provides a penalty for the violation of the second section of this act. Section 4 makes it the duty of every agent so authorized to sell tickets to exhibit his authority to any officer of the law who may request him so to do. Section 5 provides for the redemption of the unused portion of any ticket, and prohibits the sale by any person of such ticket, or of the unused portion of such ticket, otherwise than by presentation for redemption under the terms of this act. A violation of the provisions of this act subjects the party offending to a specified penalty. Section 6 provides a penalty for the unreasonable refusal of a railroad company or other common carrier to redeem its tickets, as required by section 5. Section 7 makes it unlawful for any ticket-selling agent or common carrier to dispose of tickets at a greater or less price than the regular rate for the same.

Henry C. Smith and Thompson Campbell, for appellant.

C. B. Nolan, Atty. Gen., for the State.

HUNT J. (after stating the facts).

The appellant assails the validity of the act of the legislature under which the defendant was convicted. He does not, however, ask the court to declare it in violation of article 3 of section 27 of the constitution of the state, and the fifth amendment of the constitution of the United States, which provide that "no person shall be deprived of life, liberty or property without due process of law," but relies entirely upon these two propositions: First. Because the bill was one for raising revenue for the state of Montana, and, it being conceded that it originated in the senate, he argues that it violates the provisions of article 5 of section 32 of the constitution of the state, which reads as follows: "All bills for raising revenue shall originate in the house of representatives, but the senate may propose amendments as in the case of other bills." Secondly. Because the constitutional provision (section 23 of article 5 of the constitution of the state) requiring the subject of every bill to be clearly expressed in its title was violated at least to the extent of rendering the penalty clauses of the law void by the omission to include expressed sufficient references to those clauses of the bill which imposed a punishment for violation of the law.

The argument of counsel that the law under consideration is a revenue law is based upon the fact that a license fee of one dollar must be paid to the secretary of state for the license provided for in section 1 of the act. This fee must be paid by the agent of the railroad company, who is authorized to sell tickets to the secretary of state, who in turn issues the license to the person authorized to engage in the business of selling tickets of the common carrier, from whom he holds his appointment as agent. It is contended that because this license may become a source of revenue to the state, the law providing for this revenue is a revenue law, within the meaning of the section of the constitution referred to. The first clause of section 32 of article 5 of the constitution of Montana, in its requirement that "all bills for raising revenue shall originate in the house of representatives," is identical with the language of section 7 of article 1 of the constitution of the United States, while the remaining clause, permitting amendments by the senate, is substantially similar to a like clause of the federal constitution. This exclusive right of the house of representatives to originate bills for raising revenue having been obviously borrowed from the federal constitution, into which, Judge Story says, it found its way originally from similar privileges exercised by the British house of commons, we naturally turn to the construction of similar words by the federal courts, in order to...