State v. Kallas
| Decision Date | 04 October 1939 |
| Docket Number | 6044 |
| Citation | 97 Utah 492,94 P.2d 414 |
| Court | Utah Supreme Court |
| Parties | STATE v. KALLAS et al |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from District Court, Third District, Salt Lake County Herbert M. Schiller, Judge.
Sam Kallas and others were convicted of maintaining a common nuisance in violation of the Liquor Control Act, and they appeal.
Affirmed.
E. A. Rogers and Harley W. Gustin, both of Salt Lake City, for appellants.
Joseph Chez, Atty. Gen., Zelph S. Calder, Asst. Atty. Gen., and Parnell Black, of Salt Lake City, for the State.
WOLFE, J., being disqualified, did not participate.
Appellants were convicted of maintaining a common nuisance in violation of Section 195, Chapter 49, Laws of Utah 1937, in the District Court of Salt Lake County, before a jury.
Each appellant, except Pete Cayias, was sentenced by the Court to pay a fine of $ 200, or, in default of payment of such fine, to serve a term of sixty days in the Salt Lake County jail. The appellant Pete Cayias, was sentenced under the name of P. C. Cayias to pay a fine of $ 500, and also to serve 180 days in the Salt Lake County jail. Each appellant appeals from the judgment of conviction and sentence imposed upon him, and all appellants appeal from the order of the court denying their joint motion for a new trial.
Appellants have jointly and severally assigned fifty-two errors claimed to have occurred in the trial. They admit the same legal propositions are involved in a number of instances. They have condensed their argument within the limits of six broad grounds set forth in their brief.
The court will consider and dispose of all the errors claimed under classifications which the opinion will reflect.
Sufficiency of Title of Amendatory Statute Amending Existing Session Laws under the Constitution of Utah.
Section 195 of Chapter 49, Laws of Utah 1937, is an act amendatory of Section 195, Chapter 43, Laws of Utah 1935, which, unless otherwise indicated, we will hereafter refer to under an abbreviated designation as the Liquor Control Act of 1935 as amended in 1937, or as Section 195, or as the Liquor Control Act, etc.
The only difference in Section 195 in the 1935 and in the 1937 Laws is, namely: The 1937 Law omits the words "any other" as shown on the second line of the 1935 Act, and the 1937 Law omits the phrase "contrary to the provisions of this act" as shown on the sixth and seventh lines of the 1935 Act.
This court is committed to the rule laid down in the case of Edler v. Edwards, 34 Utah 13, 95 P. 367. In that case the court held the whole title was contained in an amendatory act in the following quoted words:
In that case it was held:
The foregoing quotations are from the syllabi of the case of Edler v. Edwards , 34 Utah 13, 95 P. 367, and reflect the law announced in the opinion.
Expression in Title of Subject of Act.
Section 23 of Article VI of the Constitution of Utah provides:
"Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title." (Italics added.)
Appellants claim Section 195, Chapter 49, Laws of Utah 1937, is unconstitutional. Their attack suggests two questions each of which is as follows:
(a) Whether title to Section 195 of the 1937 amendatory act is sufficient to sustain the said Act as against an attack as to its constitutionality.
(b) Whether, appellants have any standing here to question the constitutionality of the entire act if Section 195 is constitutional:
We concede appellants' right to question the constitutionality of Section 195, Chapter 49, Laws of Utah 1937, as the first suggested question presents.
The title of Chapter 43, Laws of Utah 1935, provided for penalties for violations thereof. This is particularly true of Section 195 of said act. The same penalty is provided for the violation of the amendatory act, as was provided in the original act. There was no amendment affecting the penalty. But, if the penalty had been amended, such penalty, being a subject matter incorporated in the original act, under the original title of the existing law, was a matter appropriate to be included in the amendatory act.
The title of an act amendatory of a law, in force and effect at the time of the enactment of the amendatory act, giving the number of the section of the original law designated to be amended, is sufficient notice to the legislature and to the public as reasonably to lead to an inquiry into the body of the bill to ascertain what changes are proposed in the original or existing law; and anything germane to the general subject, expressed in the title of the original existing law, or that could have been included in the original and existing law under its general title may be included in any subsequent act amendatory of the then existing law.
The constitutional provision is for a practical purpose and it is not a technical restriction on the legislature. That practical purpose is to inform the legislature and the public what legislation is proposed, and a title is sufficient that will lead to an inquiry into the body of the act to ascertain changes proposed in the original and existing law.
The relevant part of the title to Chapter 49, Laws of Utah 1937, as the same affects Section 195, gave notice as follows:
"An Act amending Sections * * * 195 * * * Chapter 43, Laws of Utah, 1935."
This is sufficient. Under this title Section 195 may be amended to cover any provision germane to the 1935 Act under its title.
The question of the penalty was a matter germane to the original and amendatory act.
Therefore, the contention that Section 195, Chapter 43, Laws of Utah 1935, Chapter 49, Laws of Utah 1937, violates Article VI, Section 23 of the Constitution of Utah; we decide adversely to the appellants.
Constitutionality of Entire 1937 Amendatory Act.
Appellants erroneously base their contention on our second suggested question on the holding of this court in the case of Riggins v. District Court, 89 Utah 183, 51 P.2d 645. We held in that case the 1935 Liquor Control Act as a whole is constitutional. We again affirm our holding in that case insofar as it pertains to the act as a whole.
An entire statute will not be declared invalid at the instance of persons convicted under Section 195 of the Liquor Control Act of 1935 as amended in 1937, when such persons attacking said law are not prejudiced or concerned by the enforcement or operation of the other provisions of the act. This, of course, would affect the parts of the law in which they have an interest.
The appellants have found consolation in this language used by the court in the Riggins case: We quote from pages 11 and 12 of Appellants' brief:
But the appellants were not prosecuted under or convicted on any provision of the amendatory act, except the provisions of Section 195 which we, under the first suggested question, hold, in this opinion, is not vulnerable to their attack, and their rights are not affected by the other provisions of said act.
In the case of Riggins v. District Court, 89 Utah 183, 51 P.2d 645, the act known as the "Liquor Control Act of 1935" (Chap. 43, Laws of Utah 1935) was construed and found by this court to be constitutional. The "1937 Act" is amendatory of the "1935 Act."
After our decision in the Riggins case, an attack was made on Section 189 in the Lyte case, Lyte v. District Court of Salt Lake County, 90 Utah 369, 61 P.2d 1259, which section was held unconstitutional in that case. That holding appears to be the basis for this attack. Our reason for holding Section 189 unconstitutional in the Lyte case is not present in Section 195 of either the amended or amendatory act. Even if other sections of the amendatory act of 1937 are unconstitutional, the question of the constitutionality of other sections would not invalidate Section 195 in view of our holding the act constitutional as a whole in the Riggins case, and our specific holding in this case that Section 195 of the 1937 amendatory act is constitutional.
Therefore appellants' contention of the invalidity of the entire 1937 amendatory act of the Liquor Control Act of 1935 must fail. And we will not consider the constitutionality of other sections of the "1937 Act" in which the appellants are not injuriously affected, because the court will not listen to an objection made as to the constitutionality of an act by parties whose rights are not...
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