State v. Davey

• Decision Date: 24 January 1925
• Docket Number: Criminal 590
• Citation: State v. Davey, 27 Ariz. 254, 232 P. 884 (Ariz. 1925)
• Parties: STATE, Appellant, v. JACK DAVEY, Respondent
• Court: Arizona Supreme Court

232 P. 884

27 Ariz. 254

STATE, Appellant, v. JACK DAVEY, Respondent

Criminal No. 590

Supreme Court of Arizona

January 24, 1925

APPEAL from a judgment of the Superior Court of the County of Pinal. Stephen H. Abbey, Judge. Judgment reversed and cause remanded.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

Mr George P. Stovall, for Appellee.

OPINION

LOCKWOOD, J.

On the twenty-sixth day of September, 1923, an information was filed against appellee, which read, omitting the formal parts, as follows:

"In the name and by the authority of the state of Arizona, Jack Davey is accused by the county attorney of Pinal county, state of Arizona, by this information of the crime of employing an alien on public works, a misdemeanor committed as follows: 'the said Jack Davey on or about the 4th day of September, 1923, and before the filing of this information, at and in the county of Pinal, state of Arizona, did then and there willfully, knowingly, and unlawfully, having then and there a contract for the erection of a school building for school district No. 15, Pinal county, Arizona, employ upon said school building in the construction and erection of the same Y. N. Comancho, a person not a citizen or ward of the United States, and who has not declared his intentions to become a citizen, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Arizona.'"

Appellee demurred to the information on the ground, first, that it did not conform to the requirements of sections 934, 935 and 936 of the Penal Code of 1913; second, that the facts stated did not constitute a public offense; third, that the information contained matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the prosecution; fourth, that paragraph 3105 of the Arizona Civil Code of 1913, under which the information was admittedly drawn, was unconstitutional. The demurrer was sustained by the lower court on the twenty-fourth day of October, 1923, and the state appeals from the order sustaining the demurrer, assigning as error the ruling of the lower court of the four points of the demurrer set forth above. In considering these points I shall take them up in inverse order.

The only ground on which appellee claims the statute is unconstitutional is that the subject of the act was not embraced in the title, contrary to the provisions of section 13, part 2 of article 4, of the Constitution, which reads as follows:

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title."

Appellee contended successfully in the lower court that the prohibition of the employment of alien labor in paragraph 3105 of the Civil Code of 1913, was not reasonably contained within the act, and that therefore, so far as that particular part was concerned, it must fall. That reads as follows:

"No person not a citizen or ward of the United States, or who has not declared his intention to become a citizen shall be employed upon, or in connection with, any state, county, or municipal works or employment; provided, that nothing herein shall be construed to prevent the working of prisoners by the state, or by any . . . municipality thereof, on street or road work, or other public work."

This provision is a part of title 14 of the Code of 1913, originally enacted as a separate act in 1912, and then re-enacted as part of the Code. In its original form in 1912 the title contained the words, among other things, "prescribing certain regulations concerning the qualifications and employment of laborers." When re-enacted in 1913, the title was changed and some ten different subsections were placed therein. The only two which could on any theory be considered applicable in the present case are as follows: "1. To prescribe the relative rights and duties of employer and employee"; and "2. To establish rules governing the relation of employer and employee."

This provision of the Constitution has been considered by us in the following cases: Laney v. State, 20 Ariz. 416, 181 P. 186; Coggins v. Ely, 23 Ariz. 155, 202 P. 391; State Board v. Buckstegge, 18 Ariz. 277, 158 P. 837; Skaggs v. State, 24 Ariz. 191, 207 P. 877; Black & White Taxi Cab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139. It has also been considered by the Supreme Court of the United States in Van Dyke v. Geary, 244 U.S. 39, 61 L.Ed. 973, 37 S.Ct. 483 (see, also, Rose's U.S. Notes).

We have repeatedly said, following the almost universal practice of the courts, that we would not declare an act of the legislature unconstitutional unless satisfied thereof beyond reasonable doubt. The burden therefore is upon the appellee in this case to convince us that the subject of the act is not reasonably embraced in the title thereof, by as great a weight of evidence and reasoning as would be required to be...