State v. Bowers

• Decision Date: 31 May 1860
• Parties: The State v. Bowers
• Court: Indiana Supreme Court

14 Ind. 159

The State v. Bowers

Supreme Court of Indiana

May 31, 1860

From the Marion Court of Common Pleas.

The judgment is affirmed with costs.

D McDonald and A. G. Porter, for the State.

OPINION

Worden, J.

Information against the appellee for exhibiting a concert for pay without having obtained a license, &c. On the defendant's motion, the information was quashed on the ground that there was not "any law, valid under the constitution, authorizing or requiring a license to exhibit for pay, any concert, within the state of Indiana."

The act of 1857 (Acts of 1857, p. 89), which was in force at the time of the alleged exhibition, expressly requires a license to exhibit for pay any concert. The question arises whether this act, so far as it relates to any concert, was enacted in accordance with the requirement of the constitution that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title."

The title of the act of 1857 is as follows, viz.: "An act to amend the first section of an act entitled 'An act concerning licenses to vend foreign merchandise, to exhibit any caravan, menagerie, circus, rope and wire dancing, puppet show, and legerdemain,' approved June 15, 1852, and for the encouragement of agriculture, and concerning the licensing of stock and exchange brokers."

Is there anything in the title of the original act (thus set forth in the title to the amendatory act), or in the title to the amendatory act itself, that would authorize the enactment of the clause requiring a license to exhibit a concert for pay?

We will inquire, first, whether the title to the original act is sufficient in this respect. The subject of the original act is licenses. This is the general subject of the act, applied and limited to the matters enumerated. If the license upon each kind of business or exhibition should be considered a subject distinct and separate from the license on the others named, then, perhaps, the act would be void as embracing some seven different subjects. But, as before remarked, the subject of the act is licenses, and it seems to us that the legislature may, without violating the constitutional provision mentioned, in the same act, require a license to be paid for carrying on different kinds of business, or for making different kinds of exhibitions. Hence the act is not void as embracing more than one subject. But although the general subject of the act is licenses, and although the legislature may, in the same act, require a license for different kinds of business or exhibitions, still the title in question limits the application of the general subject to the particulars enumerated. Had the title been an act to require the payment of licenses in certain cases, a different question would have been presented. In such case, the subject would not have been limited to enumerated particulars as is done in the title in question. The specification in the title, of the cases in which licenses are to be required, entirely negatives the idea that the act itself extends beyond the cases enumerated. Now had the clause requiring a license to be paid for exhibiting a concert for pay, been contained in the original act, it would have been void; because the title specified the particulars in which a license was to be required, and a "concert" is not amongst them. This point is illustrated by the case of The State v. Wilson, 7 Ind. 516. There it was held that the title "an act to revise, simplify, and abridge the rules of practice, pleadings, and forms, in civil cases, in the Courts of this state," did not authorize the enactment of forms in criminal cases, because the title did not express the subject of those forms. There the subject of the enactment was limited in the title to civil cases, and it was held that an enactment on the same subject, in reference to criminal cases was void. So here the subject of the statute, as expressed in the title, is licenses in particular, specified cases; and an enactment requiring a license in other cases than those specified, would,...