State v. Driscoll

• Decision Date: 31 January 1936
• Docket Number: 7472.
• Parties: STATE v. DRISCOLL.
• Court: Montana Supreme Court

54 P.2d 571

101 Mont. 348

STATE v. DRISCOLL.

No. 7472.

Supreme Court of Montana

January 31, 1936

Rehearing Denied Feb. 13, 1936.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

John J Driscoll was charged by information with unlawfully exposing and keeping for sale intoxicating liquors. From a judgment of dismissal, after the defendant's demurrer to the information had been sustained, the State appeals.

Reversed and remanded, with directions.

Raymond T. Nagle, Atty. Gen., Oscar A. Provost, Asst. Atty. Gen., and H. J. Freebourn, Clarence Hanley, and N. A. Rotering, all of Butte, for the State.

George D. Toole, of Butte, and Toomey & McFarland and John W Chapman, all of Helena, for respondent.

ANDERSON Justice.

An information was filed in the district court of Silver Bow county charging the defendant with unlawfully exposing and keeping for sale intoxicating liquor. The information, other than the name of the defendant and the description of the place where the crime was alleged to have been committed, was in the language of subsection 1, of section 45, of chapter 105 of the Laws of 1933, as amended by section 1 of chapter 166 of the Laws of 1935. To this information the defendant filed a demurrer which was by the court sustained. Thereafter, a judgment of dismissal was entered. The state has appealed from this judgment.

The demurrer challenged the sufficiency of the information on the ground that it did not state a public offense, and also that the court was without jurisdiction, in that a misdemeanor was charged which was within the exclusive jurisdiction of the justice court, and that the information was uncertain and unintelligible. The court in sustaining the demurrer did not indicate the ground or grounds which formed the basis of its ruling.

By the provisions of section 2 of chapter 166, Laws 1935, original jurisdiction is conferred on the district court in all criminal actions for violations of chapter 105, Laws 1933. Prior to this amendment the justice court had exclusive jurisdiction. State v. Wiles, 98 Mont. 577, 41 P.2d 8.

In support of the contention that the information is uncertain and ambiguous, it is said it does not apprise the defendant with sufficient particularity as to the nature of the offense with which he is charged, in that it does not describe the particular kind of liquor which was in his possession and offered for sale, nor to whom he exposed it for purposes of sale.

In the case of State v. Shannon, 95 Mont. 280, 26 P.2d 360 362, we said: "The defendant contends that he was entitled to be advised as to what particular articles he unlawfully possessed, to the end that he might properly prepare his defense. Courts generally hold that an information is sufficient when it literally or substantially follows the language of the statute. 15 C.J. 367. The modern tendency of criminal procedure has been distinctly towards simplification." If the information was too general in character to advise the defendant as to what he had to meet on the trial of the case, he had a plain remedy available. State v. Shannon, supra; State v. Redmond, 73 Mont. 376, 237 P. 486.

It is argued that the information fails to state a public offense, in that it is asserted that many of the provisions of chapter 105 are violative of certain constitutional provisions which, by reason of the alleged unconstitutional provisions of the act being inseparable from the remaining portions of the act, renders the chapter in its entirety unconstitutional and void.

It is first contended that the title to the act is violative of section 23, article 5 of our Constitution, which provides 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 title of the act reads as follows: "An Act to Limit, Regulate and License the Manufacture and Sale of Any and All Liquors or Beverages That May Hereafter be Manufactured, Sold or Dispensed in the State of Montana." It is contended by counsel for the defendant that the act in question contains subjects which are not clearly expressed in its title. Part 1 of the act (section 4 et seq.) creates the Montana Liquor Control Board, which has the administration of the act. By section 8 and its subsections this board is given power to obtain, possess, and sell liquor, to lease and acquire property necessary for that purpose, to employ vendors and other necessary employees, and to grant and revoke licenses and permits as provided in the act. By section 9 the board is authorized to make regulations not inconsistent with the act for carrying out its provisions, and numerous subjects of regulation, or possible regulation, are therein enumerated.

Part 2 of the act, sections 10 to 36, inclusive, contain the provisions for the establishment of state liquor stores, their location, hours of business, establishment of prices, sales by vendors and conditions under which sales may be made, type of containers required, prohibition of consumption on the premises, closing of state stores on certain days, and the transportation of liquor to and from stores. Provision is also made for the sale and issuance to individuals of permits, the fees to be charged therefor, the places where liquor bought under permits may be kept and used, proceedings for the suspension or revocation of permits, and the means of restoring lost or suspended permits. Provision is made for the granting of beer licenses to clubs not operated for profit, and the suspension or revocation of their licenses. Also it is provided for permits to purchase liquor and dispose of the same by druggists, physicians, dentists, veterinarians, etc.

Part 3, sections 37 to 44, inclusive, relates to a local option law, and provides that upon petition of the required number of voters of the county an election must be called to determine whether intoxicating liquors shall be sold in the county. The method, time, place, and holding of the election and contests of the same are among the provisions of this part of the act.

Part 4, sections 45 to 90, inclusive, relates to prohibitions, interdictions, penalties, and procedure in prosecutions and on appeal. It enumerates certain things which are prohibited, among them the acts under which this information is drawn.

Part 5, sections 91 to 98, inclusive, relates to the ownership of property acquired by the board, financing and accounting by the board, and the application of profits.

Part 6 (sections 99-104) contains certain general provisions stating the purpose of the act, the powers of officers to administer oaths, the power of the board to incur indebtedness not exceeding $25,000, the time when the act shall go into effect, and penalty for violation of the provisions of the act.

It is contended on behalf of the defendant that the title is silent in the following particulars: (1) That it makes no reference to a liquor control board; (2) the matter of the state hiring persons to buy and sell liquor in the name of the state; (3) the leasing or establishing and operation of state liquor stores; (4) the control of any individual in his purchase or consumption of liquors by the permit system, and the provisions for interdiction; and (5) the accrual of profits from liquor sales.

In the case of State ex rel. Normile v. Cooney, 100 Mont. 391, 47 P.2d 637, 644, it is written: "The purpose of section 23, article 5, so far as it provides that the subject shall be clearly expressed in the title of an act, was stated by this court in the case of State ex rel. Cotter v. District Court, 49 Mont. 146, 140 P. 732, 734, as follows: 'The prohibition is aimed at ordinary legislation with the subject of which the members of the legislative body and the public are not supposed to be familiar. Its purpose is: "First, to prevent hodge-podge or 'log-rolling' legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire." Cooley Const. Lim., p. 205.' This statement is quoted with approval in the case of State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841."

By this constitutional provision it is intended that the act shall be germane to the subject expressed in the title. Arps v State Highway Commission, 90 Mont. 152, 300 P. 549, 557; State v. Anaconda Copper Min. Co., 23 Mont. 498, 59 P. 854, 855. "Germane" means in close relationship, appropriate, relevant, pertinent. State ex rel. Normile v. Cooney, supra; Durland v. Prickett, 98 Mont. 399, 39 P.2d 652, 656; State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P.2d 561; Hale v. Belgrade Co., 74 Mont. 308, 240 P. 371. It is not necessary that the title shall embody the exact method of application or procedure where the general object is plainly expressed. Arps v. State Highway Commission, supra; Evers v. Hudson, 36 Mont. 135, 92 P. 462. Where the degree of particularity necessary to be expressed in the title of the act is not indicated by the Constitution itself, as here, the courts should not embarrass legislation by technical interpretations based on mere form or...