State v. Mark

• Decision Date: 09 November 1923
• Docket Number: 5352.
• Parties: STATE v. MARK.
• Court: Montana Supreme Court

220 P. 94

69 Mont. 18

STATE v. MARK.

No. 5352.

Supreme Court of Montana

November 9, 1923

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Henry Mark was convicted of unlawful possession of morphine and cocaine, and he appeals. Reversed and remanded, with direction.

H. C Levinski, of Butte, for appellant.

W. D Rankin, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.

GALEN J.

By information filed in the district court of Silver Bow county the defendant was charged with unlawfully possessing morphine and cocaine. The defendant entered a plea of not guilty, and the case was tried to a jury, which returned a verdict of guilty, fixing punishment at imprisonment in the state's prison for not less than one nor more than two years, and a fine of $500. A motion in arrest of judgment was made and by the court denied, and judgment thereupon duly entered on the verdict. The appeal is from the judgment and from an order overruling defendant's motion for a new trial.

Several errors are specified as grounds of reversal, presenting five questions necessary to be decided in disposing of this appeal, viz.: (1) Is the subject of chapter 202, Laws of 1921 (sections 3189 to 3202, inc., Rev. Codes 1921), sufficiently expressed in its title? (2) Is the attempted amendment thereof by chapter 36, Laws of 1923, valid? (3) Is that portion of section 12 of chapter 202, Laws of 1921 (section 3200, Rev. Codes 1921), which makes the possession or control of drugs presumptive evidence of violation of the law, unconstitutional? (4) Was the admission of evidence of attempts to purchase narcotics from the defendant reversible error? (5) Is the judgment contrary to the law?

1. The title of chapter 202, Laws of 1921, reads:

"An act to regulate the production, manufacture, sale, barter, exchange, distribution, dealing in, giving away, dispensing, or the disposing in any manner of opium or coca leaves, their salts, derivatives or preparations; to define drug addiction; to provide for the reporting of drug addicts, to regulate the treatment and to provide for the committal of the habitual users of such drugs; to provide for the revocation of license of habitual users; to provide that under certain conditions the possession of said drugs shall be unlawful, to provide for the enforcement thereof; making an appropriation for carrying out the provisions of this act; providing penalties for its violation, and repealing all acts in conflict herewith."

The defendant contends that the title does not clearly express the purpose of the act to prohibit the possession of the objectionable drugs enumerated, contrary to the provisions of section 23, art. 5, of the Constitution. In support of this argument we are cited to several Montana cases, as well as cases from other jurisdictions; but they are not in point as respects the title of this act.

"But by this constitutional notice it is only intended that the subject of the bill shall be fairly expressed in the title. It is not necessary--for the Constitution has not so declared--that a title shall embody the exact limitations or qualifications contained in the bill itself which are germane to the purpose of the Legislature, if the general subject of the measure is clearly expressed in the title. Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the Constitution itself, the courts ought not to 'embarrass legislation by technical interpretations based upon mere form or phraseology.' " State v. Anaconda C. M. Co., 23 Mont. 498, 59 P. 854.

See, also, Yegen v. Board of County Commissioners, 34 Mont. 79, 85 P. 740; Evers v. Hudson, 36 Mont. 135, 92 P. 462.

The unity of title required by this constitutional provision is served notwithstanding many provisions in an act, where they are germane to the general subject expressed. Hotchkiss v. Marion, 12 Mont. 218, 29 P. 821; State v. McKinney, 29 Mont. 375, 74 P. 1095, 1 Ann. Cas. 579; In re Terrett, 34 Mont. 325, 86 P. 266. The Legislature is the judge, to a great extent at least, of the title which it will prefix to a bill; and the court has no right to hold a title void because, in its opinion, a better one might have been used. State v. McKinney, supra; section 88, Sutherland on Statutory Construction. Speaking of such constitutional limitation, Judge Cooley says:

"The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act, relating to that alone, would not only be unreasonable, but would actually render legislation impossible." Cooley, Const. Lim. (6th Ed.) 172.

The title of the act before us clearly indicates that it is one to regulate and prohibit the use of "opium or coca leaves, their salts or derivatives or preparations." Morphine is produced from opium, and cocaine from coca leaves; so that it is clear from the title that these drugs are to be regulated and the possession thereof made unlawful under certain conditions. No one can interpret the title otherwise than that the act is primarily intended to prevent drug addiction, and to regulate and prohibit the sale and dispensing of such drugs. The words "to regulate" are used in the title, and then it is plainly further stated therein that the act is to provide "that under certain conditions the possession of said drugs shall be unlawful." This last-quoted phrase indicates prohibitive provisions, and leaves the defendant's argument and authorities cited wholly without application. We hold the intent to prohibit the use of such drugs under certain conditions sufficiently expressed in the title of the act.

2. The attempted amendment of chapter 202, Laws of 1921, by chapter 36, Laws of 1923, in is our opinion a nullity and should be wholly disregarded. We hold it void for failure of its title to clearly express its subject, contrary to section 23 of article 5 of our Constitution. The title is meaningless. It reads:

"An act to amend section 3202 of chapter 202, of the Revised Codes of 1921, providing a penalty." There is no way of determining from the title whether the purpose was to amend chapter 202 of the Laws of 1921, or section 3202 of the Revised Codes of Montana, 1921. It is to provide "a penalty," but for what? Its title is silent and its reference to existing statutes so bungled as to leave uncertainty. The constitutional requirement is not satisfied unless the object of the legislation is clearly expressed in the title. State v. Mitchell, 17 Mont. 67, 42 P. 100; Western Ranches v. Custer County, 28 Mont. 278, 72 P. 659; State v. Brown, 29 Mont. 179, 74 P. 366.

3. Section 12 of chapter 202, Laws of 1921, provides:

"That it shall be unlawful for any person to have in his possession or under his control any of the drugs mentioned in this act, if such possession or control is obtained in a manner contrary to the provisions of this act."

Then certain exceptions and exemptions are enumerated, and the burden of proof placed upon the accused to show that his possession of the prohibited drugs comes within the exemption of the statute. The defendant contends that his constitutional rights were invaded by the court in giving to the jury instruction No. 11, based upon this statute. The instruction reads as follows:

"You are instructed that it is unlawful for any person to have in his possession or under his control any derivative, compound, manufacture or sale of opium known as morphine, if such possession or control was obtained in a manner contrary to the laws of Montana, and such possession or control is presumptive evidence in and of itself of a violation of the laws of Montana."

Proof that the prohibited drugs were found in the defendant's possession by the statute is not made presumptive of any evidence...