State v. Hamm.

• Decision Date: 31 July 1933
• Docket Number: NO. 3901.,3901.
• Parties: STATEv.HAMM.
• Court: New Mexico Supreme Court

37 N.M. 437

24 P.2d 282

STATE

v.HAMM.

NO. 3901.

Supreme Court of New Mexico.

July 31, 1933.

Appeal from District Court, Bernalillo County; Milton J. Helmick, Judge.

E. E. Hamm was charged with the sale, and possession for sale, of intoxicating liquor. Defendant's motion to quash the information was sustained, and the State appeals.

Reversed and remanded for further appropriate proceedings.

That sale of beer containing not more than 3.2 per cent. alcohol is permissible under federal statute does not absolve defendant admitting sale of criminal liability under state Constitution and statutes. 27 U.S.C.A. § 64a et seq.; Laws 1927, c. 89; Laws 1929, c. 37; Const. art. 23, §§ 1, 2.

Frank H. Patton, Asst. Atty. Gen., and T. J. Mabry, Dist. Atty., of Albuquerque, for the State.

George R. Craig, of Albuquerque, for appellee.

HUDSPETH, Justice.

An information was filed against the defendant, E. E. Hamm, charging him with the sale and possession for sale of intoxicating liquor, to wit, beer containing more than one-half of 1 per cent. of alcohol by volume. Defendant filed a motion to quash the information. The cause was heard upon the motion to quash and upon a stipulation admitting the sale and possession for sale of beer containing more than one-half of 1 per cent., but not more than 3.2 per cent. of alcohol. The motion was sustained, this appeal granted, and the defendant recognized to await the decision of this court.

Appellee maintains that the Laws of New Mexico 1927, c. 89, and Laws of 1929, c. 37, are unconstitutional in so far as they attempt to regulate the sale of beer containing not more than 3.2 per centum of alcohol, because the titles of said acts refer to “intoxicating liquors,” and not to nonintoxicating beverages.

For purposes of discussion of this contention, let us assume that beer of the alcoholic content of 3.2 per centum by volume is not in fact intoxicating.

Section 16 of article 4 of the New Mexico Constitution provides: “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.”

This section of our Constitution has been under consideration many times. State v. Ingalls, 18 N. M. 211, 135 P. 1177; Burch et al. v. Ortiz, 31 N. M. 429, 246 P. 908; State v. Miller, 33 N. M. 200, 263 P. 510, 511; State ex rel. Taylor v. Mirabal, 33 N. M. 553, 273 P. 928; State v. Grissom, 35 N. M. 323, 298 P. 666; State v. Gomez, 34 N. M. 250, 280 P. 251. In State v. Gomez, supra, Mr. Justice Simms said: “To the legislative branch of our government is committed the draft of statutes. Courts should be slow to interfere by pronouncing the work of the Legislature insufficient. It often happens that one person would entitle the same act in a different way from another. To some minds, the title of an act should be so definite and nice in its definitions and distinctions as to be an index of the act itself; to others, this is unnecessary, and a more general and sweeping treatment of the subject is all that is required. We can all agree, however, on the soundness of the constitutional inhibition against surprises, concealed or ‘joker’ provisions in bills which might deceive both the lawmakers and the general public.”

If our Constitution required that the title be an index of the statute, the titles of these acts should have read “intoxicating liquors and beverages containing alcohol but non-intoxicating in fact.” Such particularity is not, however, demanded by the Constitution. All the provisions of the acts here in question are germane to one general subject, i. e., beverages containing alcohol, and no one is deceived by the titles. We therefore hold that the statutes attacked do not violate section 16 of article 4 of the New Mexico Constitution.

We come now to the question of the power of the Legislature to prohibit the sale of beer containing not more than 3.2 per cent. of alcohol.

In commenting upon the constitutional and statutory provisions relative to the question of alcoholic beverages, the trial court said: “The state constitutional provision is, of course, not to be taken literally but as forbidding the sale of intoxicating liquors. The Legislature of New Mexico has defined ‘intoxicating liquor’ as a beverage containing more than one-half of one per cent. of alcohol The president of the United States and the Congress of the United States have determined that beer like that sold by this defendant is not in fact intoxicating, and this court concurs in that view. But it is contended by the State the defendant must nevertheless be convicted of the offense of selling intoxicating liquor because the Legislature has defined the term ‘intoxicating liquor’ to cover the beer he sold. This Legislative definition, it is claimed, is binding upon the Court and must be accepted by the Court whether it is true or not.”

The constitutional provision referred to, article 23, reads as follows: “Section 1. From and after the first day of October, A. D. nineteen hundred and eighteen, no person, association or corporation, shall, within this state, manufacture for sale, barter or gift, any ardent spirits, ale, beer, alcohol, wine or liquor of any kind whatsoever containing alcohol; and no person, association, or corporation shall import into this state any of such liquors or beverages for sale, barter or gift; and no person, association or corporation,...