State v. Social Hygiene, Inc.

• Decision Date: 06 February 1968
• Docket Number: No. 52715,52715
• Citation: 156 N.W.2d 288,261 Iowa 914
• Parties: STATE of Iowa, Appellant, v. SOCIAL HYGIENE, INC., Appellee.
• Court: Iowa Supreme Court

Page 288

156 N.W.2d 288

261 Iowa 914

STATE of Iowa, Appellant, v. SOCIAL HYGIENE, INC., Appellee.

No. 52715.

Supreme Court of Iowa.

Feb. 6, 1968.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., Roger F. Peterson, County Atty., for appellant.

Reed, Merner, Sindlinger, Baker & Sabbath, Cedar Falls, for appellee.

SNELL, Justice.

The State has appealed from the judgment of the municipal court of Cedar Falls sustaining defendant's demurrer and motion to quash an information charging violation of section 725.5, Code of Iowa by 'offering for sale by vending machine articles or things designed or intended to prevent conception.'

Neither the wisdom of the statute nor the authority of the legislature to proscribe by constitutionally enacted legislation is involved. The challenge is to the method of original enactment and the form of the statute.

Section 725.5 of our Code provides:

'Obscene literature--articles for immoral use. Whoever sells, or offers for sale, or gives away, or has in his possession with intent to sell, loan, or give away any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, paper, drawing, lithograph, engraving, picture, photograph, writing, card, postal card, model, cast, or any instrument or article of indecent or immoral use, or any medicine, article, or thing designed or intended for procuring abortion or preventing conception, or advertises the same for sale, or writes or prints any letter, circular, handbill, card, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, when, where, how, or by what means any of the articles or things hereinbefore mentioned can be purchased, or otherwise obtained or made, shall be guilty of a misdemeanor and be fined not more than one thousand nor less than fifty dollars, or be imprisoned in the county jail not more than one year, or both.'

Defendant's attack and the trial court's ruling were limited to the constitutional question under Article III, section 29, Constitution of Iowa. This section provides:

'Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.'

The trial court sustained defendant's demurrer and motion to quash on three grounds. They will be separately considered.

I. The statute now under attack was originally enacted in 1886 and appears in chapter 177, Laws of the Twenty-first General Assembly.

The title to the original Act is as follows:

'AN ACT to Suppress the circulation, advertising, and vending of Obscene and Immoral Literature and articles of Indecent and Immoral use, and to confiscate such property.'

The several sections of the original Act have been divided by the code editor pursuant to section 14.13, Code of Iowa, and have been amended by subsequent legislatures but the substance of what is material to this case appears in all Codes since the original enactment including the enacted Code of 1897.

With this historical background it would appear obvious that the statute is a legislative enactment of public policy. It could hardly be argued with any plausibility that the statute as it appears is the result of any legislative log-rolling or surprise.

'In passing upon the constitutionality of acts of the legislature such acts are given the benefit of a presumption in favor of constitutionality. An act of the legislature will be declared unconstitutional by the courts only when it is clearly, plainly and palpably so, and it is the duty of the courts to give such a construction to an act, if possible, as will avoid this necessity and uphold the law. (Citations)' State v. Talerico, 227 Iowa 1315, 1322, 290 N.W. 660, 663.

This has been the rule since as early as 1856, see State ex rel. Weir v. The County Judge, 2 Iowa 280, 282, and remains the law. See Graham v. Worthington, 259 Iowa 845, 146 N.W.2d 626.

II. The trial court held and appellee argues that the original act was not enacted pursuant to the constitution in that it was duplicitous and embodied more than one subject matter. We do not agree.

Our court, as well as courts in other jurisdictions, has considered this problem many times.

We recently reviewed the problem in depth in Long v. Board of Supervisors, 258 Iowa 1278, 142 N.W.2d 378. We said:

'It has been uniformly held that section 29, Article III, of the Iowa Constitution, should be liberally construed so one Act may embrace all matters reasonably connected with the subject expressed in the title and not utterly incongruous thereto. * * * to constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any legitimate connection with or relation to each other. All that is necessary is that the act should embrace some one general subject, and by that is meant, merely, that all matters treated therein shall fall under some one general idea and be so connected with or related to each other, either logically or in popular understanding, as to be part of or germane to one general subject.' (loc. cit. 1282 and 1283, 142 N.W.2d, loc. cit. 381)

We referred to the landmark case of State v. Talerico, supra, noting that 'this constitutional provision was designed to prevent surprise in legislation, to prevent the union in one bill of matters having no fair relation to each other.' In the Talerico case this appears:

'However, the title need not be an index or epitome of the act or its details. The subject of the bill need not be specifically and exactly expressed in the title. It is sufficient if all the provisions relate to the one subject indicated in the title and are parts of it or incidental to it or reasonably connected with it or in some reasonable sense auxiliary to the subject of the statute. It is unnecessary that each thought or step toward the accomplishment of an end or object should be embodied in a separate act. Nor is it important that a law contain matters which might be and usually are contained in separate acts or would be more logically classified as belonging to different subjects provided only they are germane to the general subject of the act in which they are put.' (227 Iowa loc. cit. 1322, 290 N.W. loc. cit. 663)

The title to the Act now under attack referred to the circulation, advertising, and vending of obscene and immoral literature and articles of indecent and immoral use. The Act then set forth what the legislature intended to include within the proscription of the statute including any article or thing designed or intended for prevention of conception. When the legislature thus set forth what was within the purview of its act we cannot say that the acts so set forth were so unrelated as to contravene the provisions of the constitution. They were reasonably connected with the title and 'not utterly incongruous thereto.'

An interesting article appears in 42 Minn. Law Review 389 cited by appellant.

A one-subject rule for laws has found its way, in one form or another, into the constitutions of forty-one of our states. This provision is frequently invoked by litigants to question the validity of a statute.

'The primary and universally recognized purpose of the one subject rule is to prevent log-rolling in enactment of laws. The practice of several minorities combining their several proposals as different provisions of a single bill and this consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately.

'Another stated purpose for the provision is to prevent 'riders' from being attached to bills that are popular and so certain of adoption that the rider will secure adoption not on its own merits, but on the merits of the measure to which it is attached. * * *

'Another purpose served by the one-subject rule is to facilitate orderly legislative procedure. * * *

'The constitutional provision embodying the one-subject rule also contains an independent requirement that each bill contain a title and that the title express the subject or object of the bill. * * * The primary purpose of the title requirement is to prevent surprise and fraud upon the people and the legislature.'

III. The trial court held and appellee argues that the title of the Act creating what is now section 725.5 of the Code contains no expression of the subject matter, i.e. articles designed or intended for preventing conception and thus contravenes the constitution. We do not agree.

Much that we have said in preceding divisions is applicable here and need not be repeated.

In Doyle v. Kahl, 242 Iowa 153, 46 N.W.2d 52 there was a constitutional attack on the Motor Vehicle Responsibility Act. On page 157 of 242 Iowa, on page 54 of 46 N.W.2d this appears:

'* * * an examination of the entire Act shows that all matters embraced therein are germane to the general subject as set forth in the title. An Act need not in its title, be an abstract, analysis, synopsis, catalogue, summary or index of the Act itself. It may embrace all matters reasonably connected with the subject expressed in the title and not incongruous thereto. Carlton v. Grimes, 237 Iowa 912, 23 N.W.2d 883; Knorr v. Beardsley, 240 Iowa 828, 38 N.W.2d 236. In determining this question a liberal construction should be given to Article III, section 29, of the Constitution. * * *'

See also Independent School District of Cedar Rapids, et al. v. Iowa Employment

Security Commission, et al., 237 Iowa 1301, 1312, 1313, 25 N.W.2d 491, and cases cited therein, and 82 C.J.S. Statutes § 219.

Neither the authority of the legislature to enact statutes relating to 'acts that are indecent and...