State v. Candelaria.

• Decision Date: 05 May 1923
• Docket Number: No. 2841A.,2841A.
• Citation: 215 P. 816,28 N.M. 573
• Parties: STATEv.CANDELARIA.
• Court: New Mexico Supreme Court

28 N.M. 573

215 P. 816

STATE

v.CANDELARIA.

No. 2841A.

Supreme Court of New Mexico.

May 5, 1923.

Syllabus by the Court.

Where an intention to amend a specific section of a former act is announced in the title of an act, the amendatory act must be germane to the subject-matter of the original section sought to be amended.

Where both the title and the body of an act make misreference to a section in a former act which is sought to be amended, the misreference may not be disregarded in the construction of the later act.

A provision in an act entirely without the scope of the title is void.

Where it must be clearly seen that the Legislature would not have repealed former sections of the law, unless they were effectually providing a new system in lieu of the old, for which there was pressing and continuing necessity, then the whole act is to be declared void, and the former regulations on the subject remain in full force.

Appeal from District Court, Santa Fé County; Holloman, Judge.

J. S. Candelaria was indicted for buying, receiving, and aiding in the concealment of stolen goods. From an order overruling a demurrer to a plea in abatement and quashing the indictment, the State appeals. Affirmed.

Where it must be clearly seen that the Legislature would not have repealed former sections of the law, unless they were effectually providing a new system in lieu of the old, for which there was pressing and continuing necessity, then the whole act is to be declared void, and the former regulations on the subject remain in full force.

Milton J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.

J. O. Seth, C. J. Roberts, and C. H. Gilbert, all of Santa Fé, for appellee.

PARKER, C. J.

The appellee was indicted by a grand jury on April 4, 1923, for buying, receiving, and aiding in the concealment of certain stolen goods. He interposed a plea in abatement to the indictment upon the ground that the act, House Bill No. 239, Session Laws of 1923, c. 131, under the provisions of which the grand jury finding the indictment had been selected and impaneled, was unconstitutional. A demurrer was interposed to the plea and was overruled and the indictment quashed, and the state has brought the case here by appeal.

The ground upon which the claim that the act is unconstitutional is founded is that it violates the provisions of section 16 of article 4 of the Constitution, which is as follows:

“The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed except general appropriation bills and bills for the codification or revision of the laws; but if any subject is embraced in any act which is not expressed in its title, only so much of the act as is not so expressed shall be void.”

The provision of the Constitution above quoted, prohibiting laws embracing more than one subject, is not involved in this consideration. The act in question is devoted wholly to the subject of the selection of jurors. The sole proposition presented is one which involves the question as to whether the title of the act clearly expresses the subject of the act in accordance with the above requirement of the constitutional provision. The title of the act is as follows:

“An act to amend section 3 of chapter 3, Session Laws of 1921; section 4 of chapter 93, Session Laws of 1917; section 25 of chapter 93, Session Laws of 1917, and to repeal sections 2 and 3 of chapter 3, Session Laws of 1921; sections 6, 7, 8, 9, 10, 11, 19 and 29 of chapter 93, Session Laws of 1917, and providing that the names of all male voters shall be placed in the jury box within thirty days after each general election.”

The first provision of the title announced the intention to amend section 3, of chapter 3, Session Laws of 1921. An examination of that section of that act discloses that it is nothing more than a validating section, and provides that all proceedings theretofore had in the preparation of the list of names by a jury commission, in making up the list of jurors, filling the jury box or wheel, and drawing the names therefrom, shall be valid, if the number of names selected for jury service comprised at least 10 per cent. of the voting population of the county. It undertakes to make no provision for making up the list, selection of names, filling the jury box or wheel, and drawing the names therefrom, but provides that all such things theretofore done should be valid, if the names comprised at least 10 per cent. of the voting population. Section 1 of the act now in question, however, purports to amend section 3 of the act of 1921 “so as to read as follows.” The section then provides that within 30 days after the passage of the act, the clerk of the district court is to prepare a complete list of all male voters who voted at the last election in his county from the pollbooks used at such election, and thereafter within 30 days after each general election to prepare a like list. This section makes provisions clearly inconsistent with section 3 of chapter 3 of the Laws of 1921, and which are in no sense germane to the objects and purposes of the earlier section.

The second provision of the title of the present act gives notice of the intention to amend section 4 of chapter 93 of the Session Laws of 1917. Section 4 of the 1917 act required that the district court provide itself with a wheel or box, while section 2 of the present act required the district court to provide itself with two wheels or boxes. We see no objection to this section 2 of the present act, in so far as the title of the act is concerned.

The next provision of the title of the present act provides for the amendment of section 25 of chapter 93 of the Session Laws of 1917. That section provides for the right to inspect the jury book (a book required to be kept and to contain the names of all persons whose names had been placed in the jury box), and for the comparison by any person interested of the list of names in the jury book with the names found to be in the jury box, and for the correction of any discrepancy between the list in the jury book and the names in the jury box. Section 7 of the present act is practically in the same language as section 25 of chapter 93, Session Laws of 1917, above mentioned, and we see no objection to the same so far as the title of the present act is concerned.

The fourth provision of the title of the present act gives notice of the repeal of certain specified sections of the two prior acts, heretofore mentioned, and in section 8 of the present act they are repealed by number. We see no objection to this section in so far as the title is concerned.

The last provision of the title of the present act gives notice of provisions that the names of all male voters shall be placed in the jury box within 30 days after each general election. Section 3 of the present act makes provision for the preparation of the jury list by the clerk, the preparation by the clerk of slips of uniform size containing said names, the placing by the clerk of said slips in the jury box, and the filing of his original list in his office, subject to public inspection. It provides that the names in the jury box must at all times correspond with the names on such list, and that the slips in the jury box must at all times show that they are carbon copies from such certified list. It further provides that the clerk shall fold said slips in a uniform way in such manner that no part of the name written upon any of said slips can be seen without unfolding the same, and that he shall in the presence of the district judge and sheriff, and in the presence of such other citizens as many desire to be present, or in cases of the absence of the district judge, in the presence of the sheriff and at least two other citizens as may desire to be present, after showing that such box is empty, to insert the slips in the original jury box provided by the act, and to seal and lock said box, and deliver or transmit the key thereof to the judge of the district. We see no objection to this section as not being within the scope of the title of the act.

Section 4 of the present act, however, provides that said clerk shall so prepare said list and so place said names in said jury box within 30 days after the approval of this act, and, thereafter, shall do likewise within 30 days after every general election. It further provides that no new names thereafter shall be placed in said box and none taken out, except as otherwise therein provided, until after the next general election, and that the names so placed in such jury box shall furnish the only available means of obtaining jurors for service in the district courts until after the next general election. This section is clearly without the scope of the title. The title gives notice that the names of all male voters are to be placed in the jury box within 30 days after each general election. The body of the act in section 4 provides that they shall be placed in the jury box within 30 days after the approval of the act. This same provision occurs in section 1 of the act, as before pointed out; but the provision in section 1 will require different treatment later in the opinion.

Section 5 of the present act provides the procedure for refilling the boxes with the names of qualified jurors after the next general election. We see no objection to this section so far as the title of the act is concerned.

Section 6 of the act provides the procedure of transferring the slips containing the names of qualified voters from one box to the other, for the labeling of the box from which names are to be drawn, forbids the drawing of names from the unlabeled box, and provides for the transfer of the slips from the unlabeled box back into the labeled box, if the latter shall have become exhausted, and other minor provisions. We see no objection to this section so far as the title is concerned.

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