State v. Sheldon, A-11668

Decision Date03 September 1952
Docket NumberNo. A-11668,A-11668
Citation247 P.2d 975,96 Okla.Crim. 38
PartiesSTATE v. SHELDON.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court.

1. Statutes which refer to other statutes and make them applicable to the subject of legislation are called 'reference statutes' and are a familiar and valid mode of legislation.

2. In the absence of anything in the adopting statute and the circumstances surrounding its enactment to indicate a different legislative intent, the rule of construction is that a statute adopting and referring to another statute or to some of its provisions adopts and incorporates the provisions of the other statute as they existed at the time of the adoption, and no subsequent modification or repeal of the statute adopted will enlarge, limit, or otherwise affect the adopting statute.

3. Where one section of a statute adopts the particular provisions of another section of a statute by a specific and descriptive reference to the section of the statute adopted, the effect is the same as though the section of the statute which is adopted had been incorporated bodily into the adopting statute, and the subsequent repeal of the section of the statute referred to and adopted does not affect the adopting statute, in the absence of a clearly expressed legislative intention to the contrary.

4. In 1923 the legislature enacted a law prohibiting the driving of an automobile on the highways of Oklahoma while under the influence of intoxicating liquor, Tit. 47, O.S.1941 § 93, and referred to and adopted the definition of highways as set forth in Sec. 1 of that act, now known as Tit. 47 O.S.1941 § 91. The Motor Vehicle Act of 1949 repealed Tit. 47 O.S.1941 § 91, which was the statute defining highways. Such repeal did not affect Tit. 47 O.S.1941 § 93, and such act is a valid and existing statute under which a prosecution for driving an automobile on the state highway while under the influence of intoxicating liquor on March 25, 1950 could be maintained.

5. Section 57, Article 5 of the Constitution of Oklahoma providing that 'No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, or conferred shall be reenacted and published at length' does not prohibit the legislature in an act original in form from adopting in one section of the act a definition which is set forth in another paragraph of the same act by reference to the definitive section of such act, and it was not necessary for the legislature in the adopting statute to again copy the definition set forth in the definitive section of the statute in the adopting statute.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't Atty. Gen., Lowell Doggett, County Atty. Kay County, Newkirk, for plaintiff in error.

Stevens & Grantham, R. O. Wilson, Ponca City, Bruce B. Potter, Blackwell, for defendant in error.

JONES, Judge.

The state of Oklahoma commenced this prosecution in the County Court of Kay County by filing an information against Edward Joseph Sheldon, charging that on or about March 25, 1950 the accused did drive an automobile on a public highway while under the influence of intoxicating liquor. A demurrer to the information was interposed on behalf of the defendant, which demurrer was sustained and the case was dismissed. The state saved its exception to each of the actions of the court and has brought this appeal to the Criminal Court of Appeals.

The trial court sustained the demurrer interposed by the accused on the theory that for the period from May 27, 1949 through May 15, 1951 the state of Oklahoma had no effective law prohibiting the driving of an automobile upon a highway in the state of Oklahoma while the driver was under the influence of intoxicating liquor, for the reason that Tit. 47, O.S.1941 § 91 had been repealed by the 1949 legislature and that Tit. 47, O.S.1941 § 93, did not define 'highway' and did not set forth a place or places where the driving of an automobile under the influence of intoxicating liquor was prohibited.

This identical issue was presented to the court by habeas corpus in the case of Ex Parte McMahan, Okl.Cr.App., 237 P.2d 462, 463, where this court established the law of the case as follows:

'Statutes which refer to other statutes and make them applicable to the subject of legislation are called 'reference statutes' and are a familiar and valid mode of legislation.

'In the absence of anything in the adopting statute and the circumstances surrounding its enactment to indicate a different legislative intent, the rule of construction is that a statute adopting and referring to another statute or to some of its provisions adopts and incorporates the provisions of the other statute as they existed at the time of the adoption, and no subsequent modification or repeal of the statute adopted will enlarge, limit, or otherwise affect the adopting statute.

'Where one section of a statute adopts the particular provisions of another section of a statute by a specific and descriptive reference to the section of the statute adopted, the effect is the same as though the section of the statute which is adopted had been incorporated bodily into the adopting statute, and the subsequent repeal of the section of the statute referred to and adopted does not affect the adopting statute, in the absence of a clearly expressed legislative intention to the contrary.

'In 1923 the legislature enacted a law prohibiting the driving of an automobile on the highways of Oklahoma while under the influence of intoxicating liquor, Tit. 47, O.S.1941 § 93, and referred to and adopted the definition of highways as set forth in Sec. 1 of that act, now known as Tit. 47 O.S.1941 § 91. The Motor Vehicle Act of 1949 repealed Tit. 47 O.S.1941 § 91, which was the statute defining highways. Such repeal did not affect Tit. 47 O.S.1941 § 93, and such act is a valid and existing statute under which a prosecution for driving an automobile on the state highway while under the influence of intoxicating liquor on April 10, 1951 could be maintained.'

Thereafter this court had occasion in two other cases to again consider the question which was presented and decided the same adversely to the contentions of the petitioner herein. Overton v. State, Okl.Cr.App., 243 P.2d 363; Larkey v. State, Okl.Cr.App., 245 P.2d 751.

It is the contention of counsel for the accused that in none of the opinions heretofore rendered has this court given consideration to Section 57 of Article 5 of the Constitution of Oklahoma, which under their contention prohibits the adoption of the definition of highway as set forth in Section 1 of the 1923 act by Section 3 of said act unless Section 1 was copied at length into Section 3.

This constitutional provision is similar to one which exists in several other states, and the effect of this provision has been considered in many opinions rendered in this state and in the other states having such provision, and provides:

'Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length'. Constitution of Oklahoma, Article 5, Section 57.

The cases cited by counsel for the accused as authority to sustain their proposition involve statutes which attempted to adopt by reference to the title only the provisions of an existing law. Rider v. State, 132 Ark. 27, 200 S.W. 275; State v. Armstrong, 31 N.M. 220, 243 P. 333.

No decision of any court was referred to in the brief of defendant which might have a bearing upon the question presented, as to whether in an original act of the legislature the constitutional provision relied upon by the accused would effectively bar the adoption of a definition set forth in one paragraph of the act involved in another paragraph of the same act by reference to the section number of the definitive paragraph.

The construction of this constitutional provision by the Supreme Court of Oklahoma is best set forth in the case of State ex rel. Breene v. Howard, 67 Okl. 289, 171 P. 30, 33, wherein it was stated:

'The legislation is assailed as being unconstitutional on the ground and for the reason that it is in conflict with, and in direct violation of, article 5, § 57, Williams' Constitution, which provides:

"* * * And no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length.'

'The act is said to be in conflict with this provision of the Constitution because the amendatory provisions of chapter 96, Session Laws 1915 [52 O.S.1951 §§ 321, 324, 331, 337], which relator says are amended by it, are not re-enacted and published at length as provided in said clause of the Constitution. Said chapter 207, Session Laws 1917 [17 O.S.1951 § 51 et seq.] does not purport to amend any other chapter or section, but on its face purports to be a complete act in itself providing for the creation of an oil and gas department under the jurisdiction of the Corporation Commission for the appointment of a chief oil and gas conservation agent, conferring exclusive jurisdiction on the Corporation Commission in reference to the conservation of oil and gas and the inspection of gasoline and oil, the product of crude petroleum, and repeals all acts or parts of acts in conflict therewith and declares an emergency.

'The provision of the Constitution relied upon was intended to prevent the mischief which arose by the enactment of amendatory statutes so...

To continue reading

Request your trial
3 cases
  • Jones v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 14 November 1975
    ...and is recognized as a familiar and valid mode of legislation where not otherwise constitutionally objectionable. See, State v. Sheldon, 96 Okl.Cr. 38, 247 P.2d 975 (1952). In discussing this aspect of our State constitution in the case of In re Lee, 64 Okl. 310, 168 P. 53, 57 (1917), the S......
  • Glover v. State, F--76--278
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 30 November 1976
    ...858 (1937); State v. Howard, 67 Okl.Cr. 289, 171 P. 30 (1918); Ex parte McMahan, 94 Okl.Cr. 419, 237 P.2d 462 (1951); State v. Sheldon, 96 Okl.Cr. 38, 247 P.2d 975 (1952); and, IA Sutherland Statutory Construction, § 22.25 (4th ed. The defendant also contends that the statute should be decl......
  • Fulbright v. State, A-11607
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 17 September 1952

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