State v. Brooken.
| Decision Date | 18 September 1914 |
| Docket Number | No. 1703.,1703. |
| Citation | 19 N.M. 404,143 P. 479 |
| Court | New Mexico Supreme Court |
| Parties | STATEv.BROOKEN. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
An indictment, charging a violation of section 1, c. 23, S. L. 1901, which, after alleging that defendant held under herd, in a certain pasture, calves unaccompanied by their mothers, proceeds, “The said calves being then and there under the age of seven months,” is not subject to attack on the ground that the calves are not directly and positively alleged to be under seven months of age.
A part of a law may be unconstitutional and the remainder of it valid, where the objectionable part may be properly separated from the other, without impairing the force and effect of the section which remains, and where the legislative purpose as expressed in such section can be accomplished and given effect, independently of the void section, and when the entire act is taken into consideration it cannot be said that the Legislature would not have passed the section retained, had it been known that the void section must fail. Held, that section 1 of chapter 23, S. L. 1901, is valid and enforceable, even though section 5 of the same act is unconstitutional, under the above rule.
The Legislature, under the police power, may provide reasonable regulations for the use and enjoyment of property, where the same are necessary for the common good and the protection of others. Held, that a statute which prevents the holding under herd, or in any inclosure, unaccompanied by their mothers, of any calves of neat cattle under seven months of age is not violative of any constitutional provision, and is sustainable under the police power, where such regulation appears reasonably necessary to prevent the larceny of young animals.
Appeal from District Court, Eddy County; E. A. Medler, Judge.
Clarence Brooken was indicted for unlawfully holding under herd calves of neat cattle, under seven months of age and not accompanied by their mothers, and, from the sustaining of a motion to quash, the State appeals. Reversed and remanded with directions to overrule motion to quash.
Laws 1901, c. 23, § 1, making it unlawful to keep under herd calves of neat cattle under the age of seven months unaccompanied by their mothers, held valid, though section 5 is unconstitutional.
Ira L. Crimshaw, Asst. Atty. Gen., for the State.
Armstrong & Botts, of Carlsbad, for appellee.
On the 5th day of September, 1913, the grand jury of Eddy county returned an indictment against Clarence Brooken, the appellee, charging him with having unlawfully held under herd 12 calves of neat cattle of the value of $10 each, then and thereby interfering with the freedom of said calves; said calves being then and there under the age of seven months, and not being young animals accompanied by their mothers, nor calves of milch cows actually used to furnish milk for household purposes or for carrying on a dairy. The indictment was predicated upon section 1, c. 23, S. L. 1901, which reads as follows:
Appellee filed a motion to quash the indictment, upon the following grounds:
“(1) The indictment is void in that it states no offense known to or denounced by the laws of New Mexico.
(2) The indictment is void in that the act upon which it is based attempts to authorize an officer to search premises and seize property without a search warrant describing the place to be searched and the person or thing to be seized, upon a written showing of probable cause supported by oath or affirmation.
(3) The indictment is void in that the statute upon which it is based attempts to declare a forfeiture of liberty and property without due process of law.
(4) The indictment is void in that the statute upon which it is based attempts to delegate judicial powers to executive and administrative officers.
(5) The indictment is void in that the statute upon which it is based violates the right to acquiring, possessing, and protecting property, and violates the constitutional prohibition against class legislation.
(6) The statute upon which the indictment is based is not a valid exercise of police power.”
The motion to quash was sustained generally, and the state has appealed. We are therefore required to notice each ground of the motion to quash, for, if any one be well taken, the action of the trial court must be sustained.
[1] The first ground is based upon the manner in which the age of the calves is alleged. The statute only applies to the herding of calves under the age of seven months; hence it is necessary to allege in the indictment that the calves were under that age. The allegations of the indictment, in so far as pertinent, are:
“That Clarence Brooken * * * 12 calves of neat cattle * * * did unlawfully hold under herd in a certain pasture; * * * the said calves being then and there under the age of seven months. * * *”
It is appellee's contention that the age of the calves is not directly and positively alleged; that the mere recital that “the said calves being then and there under the age of seven months” is not an allegation that the said calves were then and there under the age of seven months, and without such allegation the indictment charged no offense known to or denounced by the laws of the state. There is no merit in this ground of the motion, as the age was directly and positively averred. In Bishop's New Criminal Procedure, § 557, the author says:
“Under 4 & 5 Phil. & M. c. 8, which made it punishable for one ‘above the age of 14’ to steal an heiress, the age, which was one of the two pillars of the offense, was held to be sufficiently set out by charging that the defendant, ‘being above the age of 14 years,’ did the act.”
[2] The second ground of the motion is predicated upon section 5 of the act, which authorizes any inspector, appointed by the cattle sanitary board of New Mexico, who shall receive notice of the violation of the law, to seize such live stock and sell the same, if ownership be not proven within ten days, and this he is authorized to do without obtaining a search warrant, regardless of the fact that, in order to make such seizure, it may be necessary for him to enter upon a citizen's premises and break into buildings and inclosures. This section of the act may be clearly unconstitutional, yet if it be a distinct section or provision, which can be literally and physically separated from section 1 of the act, without impairing the force and effect of the first section, and if the legislative purpose, as expressed in said section 1, can be accomplished or given effect, independently of section 5, and, when the entire act is taken into consideration, it cannot be said that the Legislature would not have passed section 1, had it been known that section 5 must fail, the first section must be upheld. Lewis' Sutherland, Statutory Cons. (2d Ed.) § 297. The first section of the act denounced as a crime the holding under herd or confining in any pasture, building, corral, or other inclosure, or picketing out, tying together, or in any manner interfering with the freedom of calves of...
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