State v. Peyton

• Decision Date: 23 May 1911
• Citation: 234 Mo. 517,137 S.W. 979
• Parties: STATE v. PEYTON.
• Court: Missouri Supreme Court

137 S.W. 979

234 Mo. 517

STATE v. PEYTON.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. ELECTIONS (§ 313)—PRIMARY ELECTIONS—OFFENSES.

Under the primary election law (Laws 1907, p. 263), providing for party nominations by direct vote, and declaring, in sections 31 and 32, that any act declared an offense by the general laws concerning caucuses and elections shall be an offense in primaries, etc., Rev. St. 1909, § 4442, punishing the false impersonation of a voter, is applicable to a primary election, and defendant, attempting at a primary election to vote in the name of a qualified and registered voter, violates section 4442.

2. STATUTES (§ 125)—TITLE—SUFFICIENCY.

The title of Laws 1907, p. 263, entitled "An act to provide for party nominations by direct vote," is sufficiently broad, within Const. art. 4, § 28, providing that no bill shall contain more than one subject which shall be clearly expressed in its title, to include in the body of the act all matters necessary to make the law effective, and may by reference make statutes defining offenses at general elections applicable to primary elections.

Appeal from St. Louis Circuit Court; Chas. C. Allen, Judge.

John Peyton was convicted of crime, and he appeals. Affirmed.

The defendant attempted, at a general primary election held in St. Louis on August 4, 1908, to vote in the name of Peter B. Bysor, who was a duly qualified and registered voter. Proceedings were instituted against defendant, which resulted in his conviction of the offense of attempting to vote in a name not his own, and sentence to the penitentiary. The indictment is drawn under section 4442, R. S. 1909, which makes it a felony for one to attempt to vote in a name "not his own."

The defendant filed a motion to quash the indictment upon the following grounds: "(1) The indictment does not charge any offense against the laws of the state of Missouri. (2) The indictment charges no offense declared to be such by the general laws concerning caucuses and elections. (3) The indictment charges the alleged offense to have been committed at a primary held August 4, 1908, which primary was held under the provisions of an act entitled `An act to provide for party nominations by direct vote,' passed by the Forty-Fourth General Assembly, approved March 18, 1907. Section 31 of said act is in direct contravention of the provisions of article 4, sections 28 and 33, of the Constitution of Missouri, in so far as it attempts to describe and define offenses and prescribe penalties therefor, for the reason that the provisions of said section 31 are not clearly set forth and expressed in the title of the act. (4) The indictment charges defendant with a felony which can be committed only at an election. (5) The indictment attempts to create a felony by implication. (6) The act under which the primary was held August 4, 1908, does not in itself name or create a criminal offense of the character attempted to be charged in the indictment." This motion assails the indictment upon two grounds: (1) That section 4442 is not applicable to primary elections, and that consequently the indictment charges no offense under the law. (2) That the provisions of section 31 of the primary law of 1907 are not within the title of the act, and are therefore in violation of section 28 of article 4 of the state Constitution. The only ground for reversal urged in this court is the action of the trial court in overruling this motion to quash.

Huch C. Brady and C. Orrick Bishop, for appellant. Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

FERRISS, J. (after stating the facts as above).

Section 4442, R. S. 1909, was enacted in 1903 as section 2120k of an act entitled "An act to amend article 6 of chapter 15, Revised Statutes of Missouri of 1899, by adding thereto 16 new sections to be designated as follows: Sections 2120a, 2120b, 2120c, 2120d, 2120e, 2120f, 2120g, 2120h, 2120i, 2120j, 2120k, 2120l, 2120m, 2120n, 2120o, 2120p, and defining offenses in connection with elections, and prescribing penalties therefor." Laws 1903, p. 155. Said section 4442 is a general law applicable to elections.

The primary election involved in this case was held August 4, 1908, under the primary law of 1907. Laws 1907, p. 263. Section 31 of that act provides: "Any act declared an offense by the general laws of this state concerning caucuses and elections shall also in like case be an offense in all primaries, and shall be punished in the same form and manner as therein provided, and all the penalties and provisions of the law as to such caucuses and elections, except as herein otherwise provided, shall apply in such case with equal force and to the same extent as though fully set forth in this act." Section 32 is as follows: "The provisions of the statutes now in force in relation to the holding of elections the solicitation of voters at the polls, the challenging of voters, the manner of conducting elections, of counting the ballots and making return thereof, and all other kindred subjects, shall apply to all primaries in so far as they are consistent with this act, the intent of this act being to place the primary under the regulation and protection of the laws now in force as to elections."

Statutes of this character are called "reference statutes." Their object is to incorporate into the act of which they are a part the provisions of other statutes by reference and adoption.

It is contended by the defendant that the offense defined in section 4442 cannot be regarded as incorporated into, and a part of, the primary law of 1907 by virtue of these reference statutes, for two reasons: (a) Because the reference is to acts denounced as offenses by the general laws concerning "caucuses and elections," and the provisions of the primary law then in force (Acts 1901, p. 149, § 25) made it a misdemeanor only to impersonate another at a caucus or primary election; and (b) because a felony cannot be created by implication.

The primary law of 1901 was repealed by the primary law of 1907. The act of 1907, by the terms of sections 31 and 32, refers to general laws regarding elections, and applies all their provisions and penalties to the primary law. The reference to caucuses is superfluous so far as this case is concerned, inasmuch as there was no general law governing caucuses or primary elections other than this law of 1907, which repealed prior laws on the subject.

It is contended that the provisions of section 4442 cannot be made applicable to primary elections by the reference thereto in said sections 31 and 32 of the act of 1907. Defendant's counsel cite no authority to sustain his claim in this regard. Reference statutes are of frequent use to avoid incumbering the statute books by unnecessary repetition. Section 11,646, R. S. 1909; Quinlan v. H. & T. Ry. Co., 89 Tex., loc. cit. 371, 34 S. W. 738. "Whenever an act of the Legislature confers powers which are recited in another act, the act to which reference is made is to be considered and treated as if it were incorporated into and made a part of the act which contains the reference." Turney v. Wilton, 36 Ill., loc. cit. 393. While such statutes generally apply more particularly to modes of procedure, we can perceive no reason why they should not apply to offenses which are germane to the subject of the act. There is no reason why provisions essential to make the act effective should not be incorporated by reference to the other statutes dealing with the same general subject. This question has lately been considered by this court in State ex rel. v....