State v. Harold

• Decision Date: 16 July 1952
• Docket Number: No. 1032,1032
• Citation: State v. Harold, 74 Ariz. 210, 246 P.2d 178 (Ariz. 1952)
• Parties: STATE v. HAROLD.
• Court: Arizona Supreme Court

Page 178

246 P.2d 178

74 Ariz. 210

STATE v. HAROLD.

No. 1032.

Supreme Court of Arizona.

July 16, 1952.

Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., Joseph A. Crowe, Asst. Atty. Gen., Warren McCarthy, Maricopa Co. Atty., Fred Bockmon, Asst. County Atty., for the State.

George M. Sterling, of Phoenix, for defendant.

Whitney, Ironside & Whitney, of Phoenix, amici curiae.

PHELPS, Justice.

The above-entitled cause was certified to this court under the provisions of section 44-2401, A.C.A.1939, to have determined the constitutionality of chapter 66, A.C.A.1939 as amended, and in particular sections 66-156 and 66-157 thereof.

The first count of the information charged defendant with the operation of a motor vehicle on or about October 22, 1951, while under the influence of intoxicating liquor and with having been theretofore, on July 8, 1950, convicted of a similar offense. The second count charged defendant with having, on the same date, wilfully, unlawfully and recklessly operated a motor vehicle in wilful and wanton disregard for the safety for persons or property and also a prior conviction.

It is claimed by defendant that the trial court was without jurisdiction in the matter (1) for the reason that the law under which the defendant is charged is unconstitutional, null and void upon the ground that chapter 3, House Bill No. 5 (chapter 66, A.C.A.1939, as amended) violates the provisions of article 4, part 2, section 13 of the Arizona Constitution; (2) that the information fails to state a public offense upon the ground that the law under which the defendant is sought to be charged is unconstitutional, null and void for the reason that it violates sections 3, 4, 8, 10 and 15 of article 2 of the state constitution; (3) that the law under which defendant is sought to be charged is unconstitutional, null and void upon the ground that it is an unwarranted, arbitrary, capricious, unlawful, illegal and an unconstitutional exercise of the police powers of the state. A motion to quash was presented to the court upon the above grounds and it was at this stage of the proceedings that the cause was certified to this court for the determination of the pertinent issues involved.

We will dispose of the questions in the order in which they appear to us to logically fall.

First, does the title of the act conform with the requirements of article 4, part 2, section 13 of the state constitution? This section provides that:

'Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.'

The title to the Act in question reads as follows:

'An Act.

'Regulating traffic on highways; defining certain crimes and fixing penalties in the use and operation of vehicles; providing for traffic signs and signals; defining the power of local authorities to enact or enforce ordinances, rules, or regulations in regard to matters embraced within the provisions of this act; providing for the enforcement of this act; making uniform the law relating to the subject matter of this act; and repealing article 1 of chapter 66, and all of sections 59-208, 66-203, 66-402, 66-403 and 66-405, Arizona Code Annotated, 1939, as amended.'

It is not claimed and, of course, could not logically be claimed that the entire act is vitiated even if it be true that the act contains matters unrelated to the subject embraced in the title. The constitutional provision itself provides that only so much of tha act shall be void as shall not be embraced in the title. This leads then to the question whether the provisions of sections 66-156 and 66-157 of the act upon which these charges are based, are properly connected with the subject embraced in this title. If they are not they are unconstitutional and void.

Section 66-156 provides, insofar as here material, that:

'(a) It is unlawful and punishable as provided in paragraph (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.'

And section 66-157 provides that:

'Any person who drives any vehicle in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.'

The subject embraced in the title is 'regulating traffic on highways'. Counsel for defense asserts this to be the subject of the title. He also agrees that any matters contained in the act properly connected with the subject embraced in the title are constitutional. It is claimed by defendant, however, that the attempt by the legislature to regulate the driving or control of automobiles otherwise than upon the highways is not embraced within the title of the act or connected therewith and therefore contravenes the provisions of the constitution heretofore quoted. Notwithstanding counsel's statement that it is his contention that the subject of the act is 'The regulation of traffic on the highways' (Emphasis supplied.) He subsequently argues that the title contains two subjects. We believe the latter position is an unwarranted construction of the title and we will consider it only from the standpoint that the subject of the title is an first contended by counsel for the defense.

This court has held in a number of cases that the provisions of the constitution here involved must be given a liberal construction. Hancock v. State, 31 Ariz. 389, 254 P. 225; State ex rel. Conway v. Versluis, 58 Ariz. 368, 120 P.2d 410; In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229. In the latter case this court held that the title to the State Bar Act reading:

'An Act

'Relating to the state bar, and creating a public corporation to be known as 'The State Bar of Arizona." Laws 1933, c. 66.

was sufficiently broad to justify the inclusion in the act, provisions relating to the admission to practice law in the state and to the discipline and disbarment of those who may be guilty of the violation of the ethics of the profession or other offenses, and that it was proper for the legislature to set up necessary legal machinery for its enforcement.

The rule is well established, not only in this state, but in the majority of jurisdictions that the title to an act need not be a complete index to its contents. Taylor v. Frohmiller, 52 Ariz. 211, 79 P.2d 961, and that a provision in the act which directly or indirectly relates to the subject of the title and having a natural connection therewith is properly included in the body of the act. Ellery v. State, 42 Ariz. 79, 22 P.2d 838, or if it is germane to the subject expressed in the title, it is constitutional. In re Lewkowitz, supra. It is also a cardinal rule of statutory construction that an act of the legislature will not be declared unconstitutional unless the court is convince beyond a reasonable doubt that the act contravenes some provision of the constitution. Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139.

The advent of millions of automobiles upon the highways of the state and nation in recent years and the rapidly increasing death toll that is being taken as a result of their operations thereon has made it mandatory that regulatory measures be taken to remove insofar as possible the causes contributing to this useless waste of human life and property. It appears to us to be even more important for the legislature to prevent operators of cars who are under the influence of intoxicating liquors or who are at the time driving recklessly and in wilful and wanton disregard for the safety of persons or property, from entering upon the highways and into the stream of traffic than to permit them to enter thereon and after a tragic accident has happened to punish them for maining or causing the death of those who are lawfully in the use of such highways. It is frequently the entry upon the highway by reckless or intoxicated drivers that causes the death and destruction this law seeks to prevent. Even upon private property an intoxicated or reckless driver of an automobile is just as much a menace to himself or to anyone who may be lawfully thereon as he would be to those on a public highway. The only difference is in the degree.

We are not entirely clear as to what point counsel seeks to raise on the question of penalties provided for in the act. If in his reference to the imposition of such penalties provided for therein he contends that the title of the act gives no notice that such provision would be incorporated therein and that the act is therefore unconstitutional, the answer is first, that such inclusion is not necessary, Dennis v. Jordan, 71 Ariz. 430, 229 P.2d 692; and second, that the title expressly provides for such penalties. If he intends to say merely that the act in providing penalties fails to make exceptions in the case of juvenile offenders, the position is untenable and unworthy of consideration. The disposition of juvenile offenders is provided for under the law relating to juveniles.

Defendant next argues that in attempting to regulate the operation of automobiles at places other than on a public highway the legislature is exercising a power it does not possess. We held in Weston v. State, 49 Ariz. 183, 65 P.2d 652, that the drunk driving statute in existence at that time was a police regulation. Its effect was to regulate drunk driving upon public highways. The police power of a state is an attribute of sovereignty and inherent in every state independent of statute. It is founded upon the duty of the state to protect the lives, health, safety, morals and general welfare of society. We believe it to be the universal rule of the courts that so long as the legislature enacts laws reasonably necessary for the preservation of the public health, safety, morals or general welfare of the...