State v. Courtney

Decision Date21 January 1903
Citation27 Mont. 378
PartiesSTATE v. COURTNEY.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action by the state of Montana against Dennis C. Courtney, as administrator of the estate of Thomas F. Courtney, deceased. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

McHatton & Cotter (Geo. H. Shelton, of counsel), for appellant.

Jas. Donovan, Atty. Gen., for the State.

MILBURN, J.

This is an appeal from the judgment of the district court against the administrator, substituted for the intestate, against whom suit was commenced in his lifetime. The cause, after the overruling of a demurrer to the complaint, was tried and determined upon the facts set forth in a statement agreed to by the parties. During all of the time mentioned in the complaint, said Thomas F. Courtney did business in Butte as a merchant, having a fixed place of business, selling divers kinds of merchandise, including spirituous, malt, vinous, and fermented liquors and wines in quantities not less than one quart; the sale of such wines and the like being a small part of his general business. He had a license duly issued under the provisions of section 4064 of the Political Code, the amount paid for the license being that required by subdivision 7 of the section. He did not at any time have a license such as is mentioned in section 4063 of the Political Code, as amended by house bill 162 of the Fifth session of the legislative assembly of 1897, which was in force during all the time mentioned in the complaint. The county treasurer demanded that he take out a wholesale liquor license under said section 4063, but he refused to do so, claiming that he had all the license which the law required, in that he had a license to conduct the business of a general merchant, including the privilege of selling his stock of general merchandise,—wines and the like being part thereof; and he relied upon section 4064, supra. The court adjudged that the defendant pay a liquor license fee of $450, the sum of $3 for issuance of the license, and the penalty of $15,—total, $468,—with interest and costs as prayed.

The alleged errors are: (1) Overruling the demurrer; and (2) rendering judgment for the plaintiff.

House bill 162 is entitled “An act to amend sections 4063, 4064, 4065, 4068 and 4083 of the Political Code of Montana, and to add to article II, chapter XII, title X, part III, of the Political Code, a section to be numbered4084 regarding licenses.” Laws 1897, p. 198. It is contended by appellant that the act is null and void under section 23, art. 5, of the constitution of the state, which is as follows: “No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

The points made by the appellant under the two assignments are that the complaint does not state a cause of action, “that the title of said act does not clearly express the subject thereof, that there are subjects embraced in said act which are not expressed in the title thereof, and that the said act contains numerous subjects which are not germane to each other, or to the section of the Code which they purport to amend.”

This act amends section 4063 of the Political Code. Section 4064 of that Code is as follows: “Every person who at a fixed place of business sells any goods, wares or merchandise, wines or distilled liquors, drugs or medicines, jewelry or wares of precious metals, whether on commission or otherwise, and all butchers, must obtain from the county treasurer in which the business is transacted, and for each branch of such business, license, and pay quarterly therefor an amount of money to be determined by the class in which such person is placed by the county treasurer; such business to be classified and regulated by the amount of the monthly average sales made, or hiring done, and at the rate following: Those who are estimated to make average monthly sales to the amount: *** (7) Of ten thousand dollars, and less than twenty thousand dollars, constitute the seventh class, and must pay twelve dollars per month. *** Although mentioned in the title of the act of 1897 amending the license laws, section 4064 is not expressly referred to in the body of the bill by number or otherwise. Appellant is of the opinion that therefore section 4064 is not amended, but stands as enacted in the Political Code of 1895. The position of the appellant is that the act comes within the inhibition of the constitution, and is altogether void, but, if it be sustained in any part, such part of it as is sustained will not support the judgment.

Section 4063 of the Political Code of 1895 was the liquor license law, governing sales of quantities less than one quart. It said nothing about sales in quantities of one quart or more. In the act of 1897 this section 4063 was amended, and sellers of all kinds of wines and the like were in the section put, respectively, into two classes, A and B,—to wit, those who sell in quantities less than one quart, and those who sell in quantities not less than one quart. Clearly, under the Code of 1895 (section 4064), a merchant's license, graduated according to the amount of monthly sales, was all that could be required of one who sold “wines or distilled liquors” in quantities not less than one quart,—using the words of the section,—whether or not he sold groceries or any other merchandise at the same “fixed place of business.” But under the act of 1897, at the time mentioned in the complaint section 4064 had been amended. As we have said, although mentioned by its number in the title, it is not so referred to in the act. But section 4065 in the Code of 1895 refers expressly to the preceding section, 4064, and declares that the wines and distilled liquors alluded to shall not be sold in quantities less than one quart; thus clearly making an ordinary merchant's license the proper and only one to be had for such sellers. The act of 1897 (section 4065, amended) leaves out all reference to section 4064, and those who sell wines and liquors under the provisions of the latter section. Considering these facts, and the further one above stated,—that class B of section 4063, as amended in the act, treats only of such liquor sellers as were formerly included in the provisions of section 4064,—it is clear that at the time mentioned in the complaint the last utterance of the will of the people, through the legislature, was that all sellers of wines, liquors, and the like, whether grocers or others, should pay a liquor seller's license. Section 4064 is clearly amended, so far as the sellers of wines and distilled liquors are concerned, by necessary and very strong implication; the conflict clearly appearing in the then last utterance of the legislature in the act of 1897, although said section is not mentioned or expressly alluded to by its number in the act.

Appellant relies upon section 5165 of the Political Code, which reads: “If conflicting provisions are found in different sections of the same chapter or article, the provisions of the section last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.” Why does the section last in numerical order prevail? Because, if not inconsistent with the meaning of the chapter or article, it is the last utterance on the subject. If the legislature in the act of 1897 had not amended section 4063 to include wholesale liquor dealers, formerly included in section 4064 of the Code of 1895, then the rule expressed in section 5165 might apply, as contended for; but the legislature, with section 4064 before it, evidently considered it when it so amended sections 4063 and 4065, although it bunglingly failed, in express terms, to amend section 4064 by striking out the words “wines and distilled liquors.”

This being our view of the law respecting the amendment of section 4063, if the act be valid under the constitution, we hold that the complaint states a cause of action. Is the act valid, or is it, as appellant believes, void, as falling under the inhibition of said section 23 of article 5 of the constitution? Does the title of the act, above stated, clearly express the subject of the act?

The Minnesota constitution (article 4, § 27) provides that “no law shall embrace more than one subject, which shall be expressed in its title.” In Kelly v. City of Minneapolis, 59 N. W. 306, 26 L. R. A. 97, 47 Am. St. Rep. 605, the supreme court, in a long opinion, covering several points, summarily disposed of the point that the act under consideration was void, in the following language: Appellants claim that said chapter 5, Sp. Laws 1885, is unconstitutional, because the subject of the act is not expressed in the title. The title to the act is ‘An act amending section 2 of chapter 8 of the charter of the city of Minneapolis.’ ...

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  • Achenbach v. Kincaid
    • United States
    • Idaho Supreme Court
    • February 25, 1914
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    • Idaho Supreme Court
    • December 10, 1907
    ... ... Shaw, 22 Or ... 287, 29 P. 1028; O'Keefe v. Webber, 14 Or. 55, ... 12 P. 74; Bowman v. Cockerill, 6 Kan. 311; ... Howland Coal Co. v. Brown, 13 Bush (Ky.), 681; ... Montgomery etc. Assn. v. Robinson, 69 Ala. 413; ... State v. County Judge, 2 Iowa 280; State v ... Courtney, 27 Mont. 378, 71 P. 308.) ... There ... can no longer be any doubt but that Sunday closing laws are ... constitutional and valid as a legitimate and proper exercise ... of the police power of the state. Nearly all the states in ... the Union have passed such laws, and they have been ... ...
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    • Idaho Supreme Court
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