State v. Schultz

• Decision Date: 29 July 1919
• Citation: 174 N.W. 81,44 N.D. 269
• Court: North Dakota Supreme Court

174 N.W. 81

44 N.D. 269

STATE OF NORTH DAKOTA, Respondent, v. JOHN SCHULTZ, Appellant

Supreme Court of North Dakota

July 29, 1919

Appeal from the District Court of Ramsey County, Buttz, J.

Defendant appeals from the judgment of conviction, and from and order denying a new trial.

Reversed.

Judgment reversed, and action dismissed.

Cuthbert & Smythe, for appellant.

The title of the act must properly define the subject. Garrigan v. Kennedy, 19 S.D. 11, 101 N.W. 1081; State v. Becker, 51 N.W. 1018; State v Morgan, 2 S.D. 32, 48 N.W. 314; Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; State v Bryan, 39 So. 929; State v. Davis, 2 Iowa 280; People v. McHaney, 13 Mich. 481; Louisiana v Pillsbury, 105 U.S. 278; Norfolk Beet Sugar Co. v. State, 73 N.W. 69; Oxnard Beet Sugar Co. v. State, 102 N.D. 80; Pioneer Irrig. Dist. v. Bradley, 68 P. 295; Shrevport v. Tidwell, 36 So. 312.

The court erred in not requiring the state to elect upon which charge it would try the defendant. State v. Dean, 126 N.W. 692; State v. Lofthus, 104 N.W. 906; State v. Norris, 97 N.W. 999; State v. Higgins, 95 N.W. 244; State v. King, 91 N.W. 768; State v. Brown, 12 N.W. 318; People v. Simon, 131 P. 102; People v. Bartnett, 113 P. 879; People v. Hatch, 109 P. 1097; Goodhue v. People, 94 Ill. 37; State v. Lancaster, 78 P. 1081.

It is a fundamental that every material allegation in a criminal information must be proved by competent evidence beyond a reasonable doubt. 8 R. C. L. 218, from which we quote as follows: "That courts universally disapprove of misleading arguments, and it is reversible error to allow same." Fox v. People, 95 Ill. 71; State v. Hogan, 88 N.W. 774; Brown v. State, 60 Ga. 210; State v. Thompson, 106 La. 362; Com. v. Baldwin, 129 Mass. 481; People v. Aikin, 33 N.W. 321; Long v. State, 81 Miss. 448; Roberson v. State, 26 So. 645; People v. Smith, 59 P. 295; People v. Mitchell, 62 Cal. 411.

Wm. Langer, Attorney General, George K. Foster, Assistant Attorney General, and Rollo F. Hunt, State's Attorney, for respondent.

Where the act is enrolled in the manner provided by law, and is duly certified by the proper official of the legislature, approved by the governor, and deposited with the secretary of state, and certified by him as one of the laws of this state, these facts are conclusive as to the regularity of its passage in accordance with the constitutional requirements. Case note in 40 L.R.A.(N.S.) p. 1; 20 Ann. Cas. p. 350; 44 L.R.A.(N.S.) 468; L.R.A.1915A, 1210; L.R.A.1915D, 119; L.R.A.1916E, 1251.

"Unless the Constitution declares that the journals shall show the concurrence of one branch of the legislature in an amendment to a bill made by the other branch, the silence of the journals as to such concurrence in an amendment that appears in an enrolled bill is not sufficient to defeat it." Burks v. Jefferson County, 40 Ark. 200.

The act is not in violation of § 217 of the Constitution of North Dakota, prohibiting the manufacture, sale, or gift of intoxicating liquors. Re Crane, 27 Idaho 671, 151 P. 1006; Crane v. Campbell, 245 U.S. 304.

The title of the act properly defines the subject of the act. State ex rel. Gaulke v. Turner, 37 N.D. 635, 164 N.W. 924; Great Northern R. Co. v. Turner, N.D. , N.W. , decided June 3, 1919, but not yet reported.

Only one offense is charged in the information. Comp. Laws 1913, § 10,688; Moffit v. People, 59 Colo. 406, 149 P. 104; Anderson v. Van Buren Circuit Judge, 130 Mich. 697, 90 N.W. 692; Sturgeon v. State, 17 Ariz. 513, 154 P. 1050; The People v. McDonald, 193 Ill.App. 553; Estes v. United States, 141 C. C. A. 102, 225 F. 980.

CHRISTIANSON, Ch. J. ROBINSON, J., concurs, BIRDZELL, J., BRONSON, J., GRACE, J., (concurring specially).

OPINION

CHRISTIANSON, Ch. J.

The defendant was convicted in the district court of Ramsey county of violating the so-called "Bone-dry" Law of this state. Laws 1917, chap. 136. And he has appealed from the judgment of conviction and the order denying a new trial.

The information charges that the defendant on July 5, 1918, within Ramsey county, committed the crime of aiding, abetting, and securing the delivery of intoxicating liquors to himself in violation of the provisions of chapter 136, Laws 1917. The defendant demurred to the information on the ground, among others, that it did not state facts sufficient to constitute a public offense. He also moved in arrest of judgment upon the same grounds as those stated in the demurrer. Defendant contends that chapter 136, Laws 1917, as a matter of fact, was never passed by the legislature, and is therefore not a law at all.

The statute under consideration was introduced on January 12, 1917, as House Bill No. 39. It was passed by the House of Representatives on January 31, 1917, as originally introduced. The first part of the act as introduced and passed by the House read as follows: "It shall be unlawful for any person, firm, or corporation to deliver, or receive or have in possession for delivery within this state any intoxicating liquor unless the package or container of such liquor shall be labeled on the outside in large clear letters showing the consignor, consignee, kind and quantity, percentage of alcohol, and place of delivery."

Upon reaching the Senate the bill was referred to the committee on temperance. This committee made a report recommending several amendments. The Senate adopted the amendments, and on March 1, 1917, passed the bill as amended. Senate Journal, pp. 1018, 1019. As passed by the Senate the above-quoted portion read as follows: "It shall be unlawful for any person, firm, or corporation to deliver, or receive or have in possession for delivery to any person, firm, or corporation within this state, more than 4 quarts of spirituous liquors, or 5 gallons of wine, or 72 quarts of beer, malt or other intoxicating liquors within any consecutive thirty days, except that delivery of intoxicating liquors may be made to registered pharmacists for disposition as provided by law, for medicinal, mechanical, scientific, and wine for sacramental purposes or any intoxicating liquor for any purpose, unless the package or container of such liquor shall be labeled on the outside in large clear letters showing the consignor, consignee, kind and quantity, percentage of alcohol, and place of delivery."

The other amendments made in the bill harmonized its provisions with the change made in the portion quoted. On March 2, 1917 (the last day of the legislative session), the bill was reported back to the House, with the statement that the Senate had amended the bill so that the portion above quoted read as follows: "It shall be unlawful for any person, firm, or corporation to deliver, or receive or have in possession for delivery within this state any intoxicating liquor for any purpose whatsoever, except that such liquors may be delivered, or received or possessed, for delivery by common carriers to registered pharmacists to be disposed of by them as provided by law; and unless the package or container of such liquor shall be labeled on the outside in large clear letters showing the consignor, consignee, kind and quantity, percentage of alcohol, and place of delivery." (The matter inserted by way of the different amendments has been italicized.) The House of Representatives concurred in the alleged amendments reported and passed the bill as so amended. The Senate Journal shows that the amendments reported to the House had been proposed in the Senate, but that the Senate at the time it passed the bill expressly rejected them, and amended the bill as heretofore mentioned. Not only is this fact affirmatively shown by the Senate Journal (Senate Journal, pp. 1018-1019); but when the legislature was convened in extra session in January, 1918, the Senate unanimously adopted the following resolution:

"Whereas, there was passed at the fifteenth session of the legislature House Bill No. 39 appearing in the Session Laws for 1917 under chap. 136, and

"Whereas, the Journal of the House of Representatives, at page 1461, erroneously contains what is purported to be an amendment to said bill and as having been passed by the Senate as so amended, and

"Whereas, the House of Representatives passed said bill with such purported amendment assuming that this Senate had so amended and passed such bill (the record of the passage of such bill as amended will be found at page 1479 of said House Journal), and

"Whereas, it is within the knowledge of the members of the Senate and each individual Senator, and it is so recorded correctly at page 1018-19 of the Senate Journal for the fifteenth legislative assembly, that House Bill No. 39 as so amended by the Senate was not voted upon or adopted by the House of Representatives, the amendment as adopted by the Senate having been reported incorrectly or changed in the House after same had been reported to said House, and

"Whereas, through such gross carelessness or fraud such bill was passed by the House different in form and meaning than same was passed in the Senate.

"Now, therefore, be it resolved, that this Senate do now severely condemn the practice by which this fraud was perpetrated upon the Senate and the people of the State of North Dakota in order that this practice may cease in the future, and in order that the people may know that the laws of the state are made by the regular constituted legislative assembly, and not by clerks or employees of such assembly."

Now, under that state of facts, is it the duty of this court to hold that chapter 136, Laws 1917, was not enacted, and that in fact it is no law at all? That is the question here.

The Constitution declares: "Each House shall keep a journal of its proceedings, and the yeas and nays on any question...