State v. Ward

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 1074,328 Mo. 658
• Parties: The State v. Foy Ward, Appellant
• Court: Missouri Supreme Court

40 S.W.2d 1074

328 Mo. 658

The State v. Foy Ward, Appellant

Supreme Court of Missouri

July 3, 1931

Appeal from Harrison Circuit Court; Hon. A. G. Knight Judge.

Affirmed.

Randall Wilson for appellant.

(1) Sec. 5596, R. S. 1919, is unconstitutional and void, for the reason that it violates sec. 28, Art. 4, of the Constitution of Missouri. State v. Hurley, 258 Mo. 275; Butler v. School District, 16 S.W.2d 44; State v. Crites, 277 Mo. 194; Southward v. Short, 8 S.W.2d 903; St. Louis v. Wortman, 213 Mo. 140; State ex rel. Niedermeyer v. Hackman, 237 S.W. 742; State ex rel. v. Miller, 100 Mo. 439; St. Louis v. Weitzel, 130 Mo. 616; State ex rel. v. County Court, 102 Mo. 539. (2) Sec. 5596, R. S. 1919, is unconstitutional and void, for the reason that it violates Sec. 54, Art. 4, Constitution of Missouri. Bridges v Mining Co., 252 Mo. 53; State ex rel. v Messerly, 198 Mo. 351; State v. Hill, 147 Mo. 63; State v. Walsh, 136 Mo. 400; Ashbrook v. Schaub, 160 Mo. 107; State v. Grandeman, 132 Mo. 326; Steele v. Railroad Co., 84 Mo. 57; State ex rel. v. Walton, 69 Mo. 556. (3) Sec. 5596, R. S. 1919, was repealed by the Legislature in 1929 and prior to the time defendant is charged with the violation of that section. "The information charges the defendant with having committed a crime under Section 5596, Revised Statutes of the State of Missouri for 1919, on the 15th day of November, 1929." The defendant contends that when the Legislature repealed Sec. 5596, R. S. 1919, the purported closed season on quail under the purported election held in 1928 ceased and at the time of the purported violation of Section 5596, R. S. 1919, no closed season existed and no such crime could be committed.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) Sec. 5596, R. S. 1919, now Sec. 8246, R. S. 1929, is not unconstitutional and void, in part or whole, in that it violates Sec. 28, Art. 4, of the Constitution of Missouri. The general statute relating to the regulation and preservation of game and fish, with which we are here concerned, was put on our books in 1909. This act contained no provisions permitting or authorizing the various counties to adopt by local option laws providing closed seasons on the killing and taking of quail. Laws 1909, pp. 519 to 536; Also Secs. 6508 to 6591, R. S. 1909. The General Assembly for the year 1919 repealed Sec. 6522, R. S. 1909, and re-enacted in lieu thereof a new section to be known as Section 6522. This new section authorized the various counties to adopt by election local option laws on the question of closed season for quail. Laws 1919, p. 342. The Revision Session of 1919 carried Sec. 6522 over as Sec. 5596, R. S. 1919. Sec. 5596, R. S. 1919, was amended in 1929, but the provisions relating to the local option feature were not disturbed and remain today as the law was first enacted. Laws 1919, p. 342; Sec. 5596, R. S. 1919; Laws 1929, p. 217; Sec. 8246, R. S. 1929. The repeal and reenactment of Sec. 6522, R. S. 1909, in 1919, in legal effect could be nothing more than an amendment of Sec. 6522, R. S. 1909. Now, if the addition of the local option feature in the re-enactment or amendment comes fairly within the purview of the title to the game and fish act of the Laws of 1909, p. 519, then the appellant's first contention must fall. When all the provisions of a statute fairly relate to the same subject, have a natural connection with it and the incidents are means of accomplishing it, then the subject is single and if it is sufficiently expressed in the title, the statute is valid. Southard v. Short, 320 Mo. 932; State ex rel. v. Hedrick, 294 Mo. 21; Forgrave v. County, 282 Mo. 599; State ex rel. v. Gordon, 261 Mo. 631; Elting v. Hickman, 172 Mo. 237. The constitutional provision requires the title to contain the general object of the act, but need not descend to details. State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122; State v. Distilling Co., 236 Mo. 219. It is sufficient if the title of a statute does not mislead as to the chief topic of the act and that the main features of it have a reasonable and material connection with the subject named in the title. State v. Doerring, 194 Mo. 398; O'Connor v. Transit Co., 198 Mo. 622. The generality of the title of the act is no objection so long as it is not made to cover legislation incongruous in itself and which by no fair intendment can be considered as having a necessary or proper connection. State ex rel. v. Hackmann, 305 Mo. 685; State ex rel. v. Buckner, 308 Mo. 390; State ex rel. v. Daneuser, 319 Mo. 799. Title to naturae ferrae is in the State, and the Legislature may prohibit the taking of game entirely, or permit it as a privilege, under such regulations and restrictions as it sees fit to impose. Sec. 5581, R. S. 1919; State v. Weber, 205 Mo. 44; State v. Heger, 194 Mo. 707; Greer v. Connecticut, 161 U.S. 19, 40 L.Ed. 793; State v. Snowman, 94 Me. 99, 50 L. R. A. 545, 80 Am. St. 380; State v. Blount, 85 Mo. 543; St. Joseph v. Levin, 128 Mo. 594; St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; Lacoste v. Dept. of Conservation, 151 La. 909, 92 So. 381; Manning v. Roberts, 179 Ky. 550, 200 S.W. 937; State v. Bennett, 288 S.W. (Mo. Sup.) 50. Where the state has absolute title, substantially as a private proprietor, for the benefit of its own people, it is subject to no restrictions not applicable to other private proprietors. McReady v. Virginia, 94 U.S. 391, 24 L.Ed. 248; People v. Lowndes, 139 N.Y. 455. The Legislature may, in the exercise of its police power, limit the amount of game taken. It may regulate the manner of taking game. State v. Blount, 85 Mo. 543. The Legislature, exercising its right of police power, enacted a law for the protection and preservation of game; the means to effectuate that end follows as an indubitable corollary. Ex parte Marmaduke, 91 Mo. 262. (2) Sec. 5596, R. S. 1919, now Sec. 8246, R. S. 1929, is not unconstitutional and void, in part or whole, in that it violates Sec. 54, Art. 4 of the Constitution of Missouri. Whether an act be local or special must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it occupies, and, if it affects equally all persons who come within its operation, it cannot be local or special within the meaning of the Constitution. State ex rel. v. Buckner, 308 Mo. 390, 272 S.W. 940. An act which embraces all persons who are or who may come into like situation and circumstances is not a special act. State ex rel. v. Wofford, 121 Mo. 61; Elting v. Hickman, 172 Mo. 237; State ex rel. v. Taylor, 224 Mo. 393. (3) A subsequent act repealing and reenacting at the same time a pre-existing act is a continuation of the latter, and the law dates from the passage of the first act and not from the date of the latter. Brown v. Marshall, 241 Mo. 707; State ex rel. v. Jost, 269 Mo. 248; State v. Bradford, 314 Mo. 684.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Harrison County, Missouri, at the general election held on November 6, 1928, adopted a proposition for a closed season on quail for two years under authority of what is now Section 8246, Revised Statutes 1929, formerly Section 5596, Revised Statutes 1919. Defendant killed a quail upon his land in Harrison County on or about November 15, 1929, and he was prosecuted by information for a misdemeanor for violation of the statute. Upon a trial before the court under an agreed statement of facts defendant was found guilty and was fined one dollar, from which judgment and sentence he appeals to this court.

Defendant, in a motion to quash the information, in a motion in the nature of a demurrer upon submission of the case, in motions for a new trial and in arrest of judgment and in assignments of error here, attacks upon two grounds the statute under which he was prosecuted and found guilty. He charges that the statute is unconstitutional, for the reason that it violates Section 28, Article IV, of the State Constitution, which provides that "no bill shall contain more than one subject which shall be clearly expressed in its title," and for the further reason that it violates Section 54 of Article IV which provides that "no local or special law shall be passed."

I. The Forty-fifth General Assembly passed an act, approved May 14, 1909, Laws of Missouri 1909, page 519, commonly known as the Game and Fish Law. The Act was entitled:

"AN ACT relating to the preservation, propagation and protection of game animals, birds and fish creating the office of game and fish commissioner; creating a game protection fund, and appropriating money therefrom, (with an emergency clause.)"

Section 15 of the act became Section 6522, Revised Statutes 1909.

The Fiftieth General Assembly, by an act approved May 13, 1919, Laws of Missouri 1919, page 341, repealed and reenacted certain sections of the game and fish law. Among these sections was Section 6522, Revised Statutes 1909. The title of this act of 1919 is as follows:

"AN ACT to repeal sections 6516, 6522, 6524, 6548, 6557, 6558, 6566, 6574, 6575, 6576, 6577, 6578, 6579, 6580, 6581, 6582, 6583, 6585, 6591b, 6521a, 6568, 6568a, of article 2, of chapter 49, of the Revised Statutes of Missouri, for 1909, as amended by the acts of the general assembly for the years 1911, 1913, 1915, and 1917, and to enact in lieu thereof thirty-one new sections, to be known as sections 6516, 6521a, 6522, 6524, 6548, 6548a, 6548b, 6548c, 6548d, 6557, 6558a, 6566, 6574, 6575, 6576, 6576a, 6577, 6578, 6578a, 6579, 6580, 6581, 6582, 6583, 6585, 6591b, 6568, 6568a, 6568b, 6568c, 6568d, providing for the protection of fish and game, the issuance of hunting and fishing license, creating certain offenses,...