State v. Kelley

• Decision Date: 09 January 1909
• Parties: STATE v. KELLEY ET AL
• Court: Wyoming Supreme Court

98 P. 886

17 Wyo. 335

STATE v. KELLEY ET AL

Supreme Court of Wyoming

January 9, 1909

RESERVED QUESTIONS from the District Court of Laramie County HON. RODERICK N. MATSON, Judge.

The facts are stated in the opinion.

W. E Mullen, Attorney General, for the State, argued and contended that the court was without jurisdiction to decide the questions reserved for the reason that until the sufficiency of the allegations of the information to charge an offense under the statute is determined, which is challenged by the demurrer, the validity and constitutionality of the statute is not necessarily involved; and cited in support of the objection to jurisdiction: Stoll v. Board, 6 Wyo 231; Perkins v. Board, 7 Wyo. 161; Kelly v. Rhoads, 7 Wyo. 237; State v. Bolln, 10 Wyo. 439; Willey v. Decker, 11 Wyo. 496. Counsel also contended that the question as to the jurisdiction of the district court to try and convict a corporation for the violation of a penal statute is not a constitutional question; and that the objection to the information that it fails to state an intent does not involve a constitutional question. (The remainder of counsel's brief was devoted to a discussion of the propositions involved in the reserved questions, and it was contended that the statute under which the prosecution was brought was a valid exercise of legislative power and not obnoxious to any constitutional provision. That part of the brief is here omitted, for the reason that the court refused to consider or pass upon the reserved questions, holding that it was without jurisdiction to do so.)

Donzelman, Kinkead & Mentzer, and Marion A. Kline, for the defendants, filed separate briefs and thereby argued and contended that the statute involved in the case was unconstitutional and invalid on several grounds. An abstract thereof is here omitted for the reason that none of the questions discussed were passed upon or considered by the court, but the case was remanded without answering the reserved questions, it being held that the court was without jurisdiction in this proceeding to determine the questions reserved.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

An information was filed in the district court of Laramie County charging the defendants jointly with the commission of a misdemeanor as defined in Section 3 of Chapter 91 of the Session Laws of 1907, which chapter is amendatory of Chapter 82 of the Session Laws of 1903, commonly known as the pure food and drug laws, and of which Section 3 reads as follows: "Every person who shall sell, offer, or expose for sale for human food, any slaughtered or dressed poultry, game birds, or game animals, wild or domestic of any description, or fish, from which the entrails, crops, and other objectionable or offensive parts have not been drawn and removed immediately after the same has been killed or slaughtered for market, shall be guilty of a misdemeanor, and, upon conviction thereof shall be fined not less than fifty, nor more than two hundred dollars, and in addition, the court may in its discretion order the confiscation and destruction by the commissioner of any or all such produce sold or offered for sale."

The charging part of the information is as follows: "Comes now Clyde M. Watts, County and Prosecuting Attorney of the County of Laramie, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that A. D. Kelley, and Kelley Mercantile Company, a corporation organized under the laws of the State of Wyoming, late of the county aforesaid, on the 23rd day of December, A. D. 1907, at the County of Laramie, in the State of Wyoming, did unlawfully sell, offer and expose for sale one dressed turkey from which the entrails, crops and other objectionable and offensive parts had not been drawn and removed; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

The defendants separately demurred to the information. The defendant Kelley demurred upon the following grounds: First, that the facts stated in the information herein do not constitute an offense punishable by the laws of the State of Wyoming; Second, that no intent is alleged in said information, and that proof of intent is necessary to make out the alleged offense charged; Third, that the law passed by the Ninth State Legislature of the State of Wyoming, and approved February 20th, A. D. 1907, being Chapter 91 of the Session Laws of A. D. 1907, and Section 3 of said chapter, are unconstitutional under the constitution of the State of Wyoming, same being in conflict with Section 24 of Article Three of said Constitution; Fourth, that the law hereinbefore referred to under which the information in this case has been filed, is in excess of the powers of the State Legislature as limited by the Constitution of the State of Wyoming, and in excess of Section 20 of Article Seven of the Constitution of the State of Wyoming; Fifth, that Chapter 82 of the Laws of 1903, and said Chapter 91 of the Laws of 1907, are each in contravention of Section 6 of Article 1 of the Constitution of Wyoming, and the Fourteenth Amendment to the Constitution of the United States." The demurrer of the Kelley Mercantile Company is substantially the same and contained the further ground: "That this court has no jurisdiction of said corporation, and there is no law or statute by which said court can obtain jurisdiction of said defendant corporation under a criminal process."

The case is here pursuant to the order of the court which, omitting the caption and signature, is as follows, to-wit: "Be it remembered, That now on this 29th day of February, 1908, the same being a regular day of the December term in said year of the above entitled court, this cause came on for hearing to the court, on the information herein presented, and demurrer filed thereto by the defendant, the Honorable R. N. Matson, sole presiding judge, the plaintiff appearing by C. M. Watts, County and Prosecuting Attorney, and the defendant appearing by its attorneys, M. A. Kline, and Donzelmann, Kinkead & Mentzer, and the court having examined said information and the demurrer filed thereto as above stated, finds that there is involved in, and arises in said action by reason of the issues of law joined and formed by said demurrer, important and difficult constitutional questions, upon which the decision of the supreme court is desired, to-wit: 1. Is Chapter 82 of the Laws of 1903, being 'An act providing for pure and unadulterated foods, drugs, drinks and illuminating oils and to create the office of a State Chemist and Assistant State Chemist and defining their respective duties and powers, and establishing their salaries, and providing for the appointment of an assistant to said State Chemist of any incorporated city and authorizing said cities to appropriate funds for his compensation,' commonly known as the 'Pure Food and Drugs Act,' unconstitutional as containing more than one subject and both of which are embraced in the title thereto?

"2. Does said act contravene Section 6 of Article I of the Constitution of Wyoming, and the Fifth and Fourteenth Amendments to the Constitution of the United States, both of which guarantee that no person shall be deprived of life liberty or property without due process of law.

"3. Is said act within the police power of the legislature as authorized by the Constitution of Wyoming, and more particularly by Section 20 of Article XII thereof?

"4. Is Chapter 91 of the Laws of 1907, being 'An act to amend and re-enact Sections 2 and 8 of Article 1; Sections 1 and 5 of Article 6; Sections 1, 2 and 6 of Article 8, of Chapter 82, Session Laws of Wyoming of 1903, being "An act providing for pure and unadulterated foods, drugs, drinks and illuminating oils, and to create the office of State Chemist, and Assistant State Chemist, and defining their respective duties and powers, establishing their salaries, and providing for the appointment of an assistant to said State Chemist of any incorporated city, and authorizing said cities to appropriate funds for his compensation"; and repealing Chapter 109, Session Laws of Wyoming, 1903; also prohibiting the sale or offering for sale of poultry, game and fish under certain circumstances, and prescribing a penalty therefor; authorizing the Dairy, Food and Oil Commissioner to confiscate condemned goods; and prohibiting interference with the Dairy, Food and Oil Commissioner in the discharge of his duties,' unconstitutional for the reason that it contains more than one subject both of which are expressed in its title, in contravention of Section 24 of Article III of the Constitution of Wyoming?

"5. Does said latter act and especially Section 3 thereof contravene Section 6 of Article I of the Constitution of Wyoming, as well as the Fifth and Fourteenth...