State v. Pugh

Citation252 P. 1018,31 Ariz. 317
Decision Date07 February 1927
Docket NumberCriminal 612
PartiesSTATE, Appellant, v. D. L. PUGH, Respondent
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Affirmed.

Mr John W. Murphy, Attorney General, Mr. Earl Anderson Assistant Attorney General, Mr. Frank Harrison, County Attorney, and Mr. Will E. Ryan, Special Counsel, for the State.

Mr. C B. Wilson, for Respondent.

OPINION

ROSS, C. J.

D L. Pugh, a nonresident of Arizona, was informed against by the county attorney of Coconino county, Arizona, for violating the provisions of chapter 28, Special Session Laws of 1922, by driving or bringing certain sheep into Arizona from the state of Utah, to be pastured and ranged on the ranges of this state, and for failure within ten days after such entry to notify the sheriff of Coconino county of the presence of said sheep in said county and state.

To this information a demurrer was interposed upon the grounds: (1) That the facts stated do not constitute a public offense; or (2) violate any valid law of the state; (3) that chapter 28 violates the Constitution of the state and also of the United States.

The demurrer was sustained, the case dismissed, and the defendant ordered discharged. The state has appealed.

Chapter 28 is, as its title indicates:

"An act in relation to the regulation of livestock industry; defining migratory livestock; providing for the inspection and suppression of disease among same; affixing an inspection fee and providing a penalty for the violation of this act, and declaring an emergency."

We think the information states an offense under chapter 28, providing it is a law. If, however, the legislature had no power to pass it, then the doing of the things it denounces would constitute no offense.

The Attorney General insists that the constitutionality of the act was not properly raised. In this connection, he contends that it was the duty of the defendant distinctly to point out the particular provision of the Constitution it violated, and, since the demurrer failed to do that, the court erred in sustaining it. This, we believe, is the general rule in both civil and criminal cases. 12 C.J. 784, §§215-217. But where for any constitutional reason the law under which a party is being prosecuted is void, the question need not be formally raised, as when that fact is discovered by the court, even on appeal, it will be considered.

In State v. Diamond, 27 N.M. 477, 488, 20 A.L.R. 1527, 202 P. 988, 993, the validity of the law was first raised on appeal, and the court said of it:

"Here the question of the constitutionality of the act involved determines whether a crime has been committed. If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of the cause. It is a proceeding to punish a man where there is no law authorizing the same. In such a case it would seem that the question is jurisdictional and may be raised for the first time on appeal, and we so hold. See, in this connection, Schwartz v. People, 47 Colo. 483. 104 P. 92; State v. Gibson, 189 Iowa 1212, 174 N.W.34; and State v. Winehill & Rosenthal, 147 La. 781, 86 So. 181."

Chapter 28 was passed during a special session of the fifth legislature, convened upon the call of the Governor, in the exercise of his constitutional right as set forth in section 3, part 2, article 4, as follows:

"The Governor may call a special session, whenever in his judgment it is advisable. In calling such special session, the Governor shall specify the subjects to be considered at such session, and at such session no laws shall be enacted except such as relate to the subjects mentioned in such call."

This provision, like all others of our Constitution, is mandatory no express words otherwise declaring (section 32, art. 2), and unless a law passed at a special session is related to some subject named in the Governor's call, the legislature is without power to pass it. If the legislation is fairly germane to any of the subjects mentioned in the call, it will be sustained, but if foreign it is void. McClintock v. City of Phoenix, 24 Ariz. 155, 207 P. 611; Long v. State, 58 Tex. Cr. 209, 21 Ann. Cas. 405, and note at 409, 127 S.W....

To continue reading

Request your trial
7 cases
  • Commonwealth ex rel. Schnader v. Liveright, Secretary of Welfare
    • United States
    • Pennsylvania Supreme Court
    • April 7, 1932
    ...designated, it may accomplish the purpose set forth in the particularization of the general subject designated in the call: State v. Pugh, 31 Ariz. 317, 252 P. 1018. preamble to the proclamation is an expression of the motive which impelled the governor to act, and recites that "the first d......
  • Geo. B. Wallace, Inc. v. Pfost
    • United States
    • Idaho Supreme Court
    • January 18, 1937
    ... ... EMMITT PFOST, as Commissioner of Law Enforcement of the State of Idaho, Appellant, and R. M. LOGSDON, Doing Business Under the Firm Name and Style of SUNSET MOTOR COMPANY, Intervenor and Respondent No. 6367 ... 9, Const.; Richmond v. Lay, 261 Ky ... 138, 87 S.W.2d 134; In re Opinion of the Justices, ... 94 Colo. 215, 29 P.2d 705; State v. Pugh, 31 Ariz. 317, 252 ... P. 1018.) ... The act ... is void because the actual subject is not ... "caravaning" nor the regulation thereof ... ...
  • State v. Cassius
    • United States
    • Arizona Court of Appeals
    • November 8, 1973
    ...rights, solely to prevent a miscarriage of justice. State v. Gilreath, 107 Ariz. 318, 487 P.2d 385 (1971). As stated in State v. Pugh, 31 Ariz. 317, 252 P. 1018 (1927): 'But where for any constitutional reason the law under which a party is being prosecuted is void, the question need not be......
  • State ex rel. Fatzer v. Anderson
    • United States
    • Kansas Supreme Court
    • June 30, 1956
    ...of the house.' 64 Tex.Cr.R. at page 251, 144 S.W. at page 538. See, also, Annenberg v. Roberts, 333 Pa. 203, 2 A.2d 612 and State v. Pugh, 31 Ariz. 317, 252 P. 1018. Not the least of the considerations we must weigh in deciding this question is the fact House Joint Resolution No. 1 was fina......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT