State v. Sherman

• Decision Date: 12 February 1910
• Docket Number: 16,702. 16,706
• Citation: 81 Kan. 874,107 P. 33
• Parties: THE STATE OF KANSAS, Appellee, v. F. D. SHERMAN, Appellant. THE STATE OF KANSAS, Appellee, v. G. BENDA, Appellant
• Court: Kansas Supreme Court

107 P. 33

81 Kan. 874

THE STATE OF KANSAS, Appellee, v. F. D. SHERMAN, Appellant.

THE STATE OF KANSAS, Appellee, v. G. BENDA, Appellant

No. 16,702. No. 16,706

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Russell district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW--Interstate Commerce--Regulation by the State--Intoxicating Liquors. Section 5 of chapter 164 of the Laws of 1909, which prohibits the taking of orders within this state for intoxicating liquors, is not repugnant to the provisions of the federal constitution giving congress the power to regulate interstate commerce.

2. CRIMINAL LAW--Taking Orders in this State for Intoxicating Liquors--Shipment from Another State. "The owner of intoxicating liquors in another state can not, by virtue of this provision of the federal constitution come into this state or send his agent here and in defiance of the laws of this state carry on the business of soliciting orders or proposals for the purchase of such intoxicating liquors, to be shipped from such other state, without incurring the penalties of such laws." (Crigler v. Shepler, 79 Kan. 834, 101 P. 619, syllabus.)

3. CONSTITUTIONAL LAW--Title of an Act--Intoxicating Liquors. This statute is not repugnant to section 16 of article 2 of the constitution of this state.

4. CRIMINAL LAW--Information--Duplicity. "Where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all together one offense only. In such cases the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction." (The State v. Schweiter, 27 Kan. 499.)

L. B. Beardsley, for appellant F. D. Sherman.

George W. Holland, for appellant G. Benda.

Fred S. Jackson, attorney-general, John Marshall, assistant attorney-general, Charles D. Shukers, special assistant attorney-general, and M. J. Gernon, county attorney, for the appellee.

OPINION

GRAVES, J.:

These cases are appeals from the district court of Russell county. The questions involved are alike in each case, and they have been submitted together.

The defendants were arrested and convicted of a violation of section 5 of chapter 164 of the Laws of 1909, which reads:

"Any person who shall take or receive any order for intoxicating liquor from any person in this state, or any person who shall, directly or indirectly, contract for the sale of intoxicating liquor with any person in this state, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquor."

The cases were tried by the court without a jury, upon an agreed statement of facts, wherein it is admitted that each defendant committed the act alleged against him.

The first and principal objection presented is that the statute under which the defendants were prosecuted is unconstitutional as being a burden upon interstate commerce. This phase of the case has been decided by this court adversely to the contention of the defendants and the question is fully discussed by Mr. Justice Benson in the case of Crigler v. Shepler, 79 Kan. 834, 101 P. 619.

A further complaint is made that this law is unconstitutional and void as being in violation of section 16 of article 2 of the constitution of this state, which reads:

"No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed."

The title criticised reads:

"An act concerning intoxicating liquors, and amending sections 2451, 2457, 2458, 2460 and 2479 of the General Statutes of Kansas, 1901, and repealing sections 2452, 2453, 2454, 2455, 2456, 2459, 2461, 2469, 2477, 2478, 2480, 2487, 2488, 2489 and 2490 of the General Statutes of Kansas, 1901, and chapter 339 of the Session Laws of 1903, and repealing said original sections 2451, 2457, 2458, 2460 and 2479 of the General Statutes of Kansas, 1901." (Laws 1909, ch. 164.)

This court has decided that the section of the constitution under consideration must be liberally interpreted with the view of upholding the acts of the legislature. This rule of interpretation has been uniformly followed. (See Rathbone v. Hopper, 57 Kan. 240, 245, 45 P. 610, and cases there cited; The State v. Barrett, 27 Kan. 213.)

The language "An act concerning intoxicating liquors," used in this title, is clear enough and broad enough to cover the whole subject involved in the prohibitory law. Counsel concede that if these words stood alone and constituted the whole title they would be sufficient. We are unable to see that the other language used in the title adds any other subject or destroys the clearness of that which precedes it. The four sections amended relate directly to the main subject, and are specifically named and described in the title. The sections amended, and others, are specifically stated in the title as repealed. In the first four sections of the act the amended sections are given in full as amended separately, one in each section. We think the law is in substantial compliance with the requirements of the constitutional provision.

It is stated in argument that section 2479 of the General Statutes of 1901, which is amended by section 5 of chapter 164 of the Laws of 1909, was originally enacted as a part of chapter 149 of the Laws of 1885, which act, so far as such section was concerned, was void because enacted in violation of the constitutional provision under consideration. Being void, it could not be amended by the act of 1909. Assuming, without deciding, that the appellant is correct in his premises, we do not concur in his conclusions. If the section was void, as contended, then it was not an obstacle to the legislature in making further legislation upon that subject. It is very clear that the legislature enacted this section as a part of the law of 1909. Whether it be treated as an original enactment or otherwise, it must be considered...