State v. Phenline

• Decision Date: 29 February 1888
• Citation: 16 Or. 107,17 P. 572
• Parties: STATE v. PHENLINE.
• Court: Oregon Supreme Court

17 P. 572

16 Or. 107

STATE v. PHENLINE.

Supreme Court of Oregon

February 29, 1888

Appeal from circuit court, Washington county.

Handley & Huston, for appellant.

T.A McBride, Dist. Atty., for respondent.

THAYER J.

Appeal from a judgment of conviction obtained in the circuit court for the county of Washington. The appellant, John Phenline was indicted and convicted in the said circuit court for disposing of intoxicating liquor to a minor, contrary to the act of the legislative assembly of this state entitled "An act to amend an act to amend section 14 of title 1 of chapter 28, General Laws of Oregon, being section 686, chapter 8, Criminal Code published in 1874, by authority of the legislative assembly of the state of Oregon, as amended October 17, 1876," approved February 16, 1887. The appellant claimed in the circuit court that said act, under which he was indicted, was unconstitutional and void, and made that one of the grounds of his defense to the indictment. The circuit court held that the act was valid; and upon that question the case is brought to this court. The appellant's counsel contend that the title to an amendatory act, which merely refers to the law to be amended by number of section, does not express the subject of the act as required by the constitution of the state. They contend, also, that the title of the original act does not express the object of the amendatory act.

The constitution of this state provides that "every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." Article 4, § 20, State Const. The title of the original act is, "An act to prohibit the selling or giving of intoxicating liquors to minors without the written consent of parents or guardians." It was passed in 1864 took effect, by operation of the constitution, January 20 1865, and is included in the General Laws of Oregon, as published in 1864, as section 14 of title 1 of chapter 28 thereof. The amendment of 1876 is entitled "An act to amend section 14 of title 1 of chapter 28, General Laws of Oregon, being section 686, chapter 8, Criminal Code, published in 1874, by authority of the legislative assembly of the state of Oregon," which amendment was approved October 17, 1876. The amendment of 1887, under which the appellant was indicted, has already been set out above. The provision of the constitution referred to was not designed to prevent the legislature from including different subjects in the same act so much on account of the objection to an act embracing more than one subject, as to prevent the smuggling into a bill provisions of a pernicious character, and foreign to the object indicated in its title, or with freighting it with matter which has no merit. It was to avoid loading onto a wholesome measure subjects which otherwise would not receive legislative sanction that led to the adoption of the restriction. Requiring the subject of the act to be expressed in its title tends to thwart such practices in legislative affairs; as it renders them nugatory if it is not observed. All of the departments of the state government, under our system, are only so many agencies; and the acts of those who administer them, like the acts of other agents, have no power or efficacy when done outside of the scope of their authority. The constitution has wisely set a limit to the power of all the functionaries of the state. It has circumscribed it by a paling of privileges and restrictions which marks the boundary; and if they overstep it, although acting under color of office, their acts are no more binding than though they had never been clothed with authority. Whenever an alleged right is claimed, under such a usurpation, and is sought to be enforced in a court of justice, it cannot legally be maintained. If a legislative body, in this country, attempts to enact a statute in violation of any of the provisions of the constitution, and a right is attempted to be upheld under it in a court of justice, it is the duty of such court to declare such pretended statute null and void. All legitimate deductions drawn from rational logic sustain this conclusion. But courts will not pass upon so important a question hastily nor pronounce a statute unconstitutional, unless in a clear case, admitting of no reasonable doubt, and will give every just intendment in its favor; but when, in the opinion of the court, there is an irreconcilable conflict between the statute and the constitution, the latter must necessarily prevail. The principal question in this case is whether the said provision of the constitution is applicable to a statute which is amendatory of a section of an original one. Said provision must be construed with reference to other provisions of that instrument relating to the same matter. Section 22 of said article 4 provides that "no act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length." This provision of the constitution relates specially to amendatory statutes; while the former one is general in its terms, and would seem to apply more particularly to original acts,--acts to which the title expressing their object is prefixed at the time of their adoption. Amending a section of an existing act requires no new title. The same title applies as much to the act as amended as it did to the original one; and the title expresses the subject of it, unless there has been a clear departure, and complete change of substance, from the original. Is, therefore, the subject of such an amendatory statute anything more than the changing of the substance of a section in an...