State v. Welkner, 51715
| Decision Date | 30 September 1971 |
| Docket Number | No. 51715,51715 |
| Citation | 259 La. 815,253 So.2d 192 |
| Parties | STATE of Louisiana, Appellant, v. Barbara Jean WELKNER and John Douglas Tassistro, Defendants-Appellees. |
| Court | Louisiana Supreme Court |
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Maurice R. Franks, Asst. Dist. Attys., for plaintiff-appellant.
Bagert & Papale, Bernard J. Bagert, Jr., New Orleans, for defendants-appellees.
Joseph Neves Marcal, III, Marcal & O'Brien, New Orleans, for amicus curiae.
The state appeals from a trial court judgment which sustained a motion to quash. The defendants were prosecuted under La.R.S. 40:971, as amended by Act 457 of 1970. The trial court held this 1970 statute unconstitutional insofar as it purported to apply to the control and use of barbiturate, amphetamine, and hallucinogenic drugs.
The trial court concluded the act was unconstitutional in this regard because its title was not sufficiently indicative of its object--because the provisions regulating amphetamines, barbiturates, and hallucinogens exceeded the limitations of the title of this enactment.
The principal issue of this appeal is whether the trial court's holding in this regard is correct.
In so holding, the court relied on Art. 3, Section 16, Louisiana Constitution of 1921. This pertinently provides that 'Every statute enacted by the Legislature shall embrace but one object and Shall have a title indicative of its object.' 1
The purpose of this constitutional requirement is to give the legislature and the public fair notice of the scope of the legislation. The requirement is designed to defeat deceitful practices of misleading the legislature into the passage of provisions not indicated by the title of the bill.
See: A. & M. Pest Control Service, Inc. v. LaBurre, 247 La. 315, 170 So.2d 855 (1965); Airey v. Tugwell, 197 La. 982, 3 So.2d 99 (1941); Comments, 8 La.L.Rev. 113 (1947) and 6 La.L.Rev. 72 (1944); 1 Sutherland, Statutory Construction, Section 1702 (3d ed., 1943).
The 1970 Act amended and re-enacted Sub-Part A of Part X ('Narcotics') of Chapter 4 ('Food and Drugs') of Title 40 ('Public Health and Safety') of the Louisiana Revised Statutes of 1950. Part X represents a consolidation of statutory law relating to the control of certain regulated drugs.
The holding of the trial court (that the body of the 1970 act exceeds the limitations of its title) can best be understood in the context of the drug control regulations provided by Part X Before the 1970 revision.
Before 1970, Part X was composed of five sub-parts, as follows:
Sub-Part A, the 'Uniform Narcotics Drug Law', mainly regulated the 'hard' drugs (opium, including morphine, codeine and heroin; and cocaine, etc.) and marijuana;
Sub-Part B regulated the seizure and forfeiture of vessels, vehicles, and aircraft involved in the illegal use of drugs under Part X;
Sub-Part C regulated the use of benzedrine within penal facilities;
Sub-Part D regulated barbiturates, central nervous stimulants (amphetamines, etc.), and hallucinogens;
Sub-Part E created the Louisiana Narcotic and Rehabilitation Commission.
According to the title of Act 457 of 1970, the legislature amended Sub-Part A (only) of Part X. Prior to the 1970 amendment, Sub-Part A had regulated only hard drugs and marijuana. 2 The title of Act 457 sets forth that it was 'To amend and re-enact Sub-Part A of Part X of Chapter 4 of Title 40 of the Louisiana Revised Statutes of 1950, designated as the Uniform Controlled Dangerous Substances Law, Providing definition of narcotic 3 Drugs * * *'. 4
The substance of the contention that the title of the Act limited its body is essentially this: The former Sub-Part A regulated hard drugs and marijuana only. Sub-Part A expressly did not apply to amphetamines, barbiturates, and hallucinogens; these were regulated only by Sub-Part D. Therefore, the new statute--entitled as amending Sub-Part A only--exceeds the scope of its title, insofar as attempting to regulate amphetamines, barbiturates, and hallucinogens in addition to the hard drugs and marijuana covered by the prior Sub-Part A, the only section of Part X now amended and re-enacted.
This contention is well founded. As we recently stated in A. & M. Pest Control Service, Inc. v. LeBurre, 247 La. 315, 170 So.2d 855 (1965): '* * * when an act seeks to amend certain sections of a general law by simple reference to the section to be amended, the amendment must be limited in its scope to the subject matter of the sections proposed to be amended.'
This principle is in accord with the general American rule on statutory construction. As stated at Sutherland on Statutory Construction, Section 1908, pp. 347--48 (3d ed. 1943): 'If the title specifies the section or sections to be amended in an act or in a code or revision, no other section can be amended * * * Under any other rule the title might refer to an inconsequential section of the prior law, yet the amendment might alter the entire act without warning.' See also State v. American Sugar Refining Co., 106 La. 553, 31 So. 181 (1901).
Here, for instance, a purpose of Act 457 of 1970 was to reduce the penalties for the first conviction for the possession of marijuana from those for a felony (which include imprisonment in the State penitentiary) to those for a misdemeanor (which involves imprisonment in the parish jail instead). 5 A legislator, knowing that former Sub-Part A regulated marijuana, could be alerted that the new act might involve a change in penalties for the possession of this drug.
However, the new act provides for felony imprisonment for possession of amphetamines and barbiturates, whereas Sub-Part D provides only for misdemeanor punishment upon the first conviction. 6 A legislator, noting that the title of Act 457 referred only to amendment and reenactment of Sub-Part A (), might not be alerted that the act also contemplated heavier penalties for amphetamines and barbiturates, drugs regulated pre-1970 not by Sub-Part A, but only by Sub-Part D.
We do not mean to state that the amending statute must be limited solely to changes of the specific provisions of the statutory section indicated as amended by the new act's title. New matter may be enacted by the amendatory legislation, 'provided the amendment is germane to the subject of the original act, and is embraced within the title of such amended act'. Southern Hide Co. v. Best, 176 La. 347, 145 So. 682, 683--684 (1933).
Here, for instance, the title of the act indicated both that Sub-Part A was amended and reenacted And that a definition of 'narcotic drugs' was to be provided, as well as regulation of the manufacture, use, etc, thereof. See Footnote 4 above. However, the definition of 'narcotic drugs' in the body of the act did not include amphetamines, barbiturates, and hallucinogens; if it Had, the new matter might well be germane to the subject of the original act and also embraced within the title of the new act, providing for a new definition of the term. See Footnote 3 above.
By reason of the authorities previously cited, we thus conclude as did the trial judge that the body of the statute--insofar as attempting to apply to amphetamines, barbiturates, and hallucinogens--is beyond the scope of its title, which constituted an amendment and reenactment of Sub-Part A only. Of course, as the cited authorities note, where the title as here restricts the body of the act, only the deviant portion is invalid, but the portion which conforms to the title is valid.
In attempting to evade application of this principle, the State relies upon State v. O'Dell, 253 La. 418, 218 So.2d 318 (1969). There, we upheld a statute, despite an error in the designation of the Revised Statutes Title sought to be amended. The act's title indicated that sections of Title 14 (1931--38) of Louisiana Revised Statutes were being amended, when obviously Title 40 was intended.
O'Dell involved an incorrect designation in the nature of an easily ascertained and indisputable typographical error. Here, however, the title would have to be substantially expanded to permit the body of the act to regulate amphetamines, barbiturates, and hallucinogens. We cannot, in the guise of interpretation, rewrite the title of the 1970 act so as to include objects within its scope additional to that unambiguously indicated by its title.
The State alternatively argues that Act 457 of 1970 should be regarded as an enactment of 'a system of laws of a general and public nature' or as 'a codification of laws on the same general subject matter.' Under Article 3, Section 16, Louisiana Constitution, the title of an enactment of such a system or codification 'need only refer to the general purpose and scope of the statute'. (The full text of Section 16 is quoted in Footnote 1 above.)
We are not persuaded by this argument. In the first place, the title of Act 457 of 1970 specifically indicates that it intends to amend Sub-Part A only.
Further, the State's argument that it was intended to codify all the laws pertaining to the control of prohibited narcotics, including those regulated by Sub-Part D (), is negated by the circumstances that, in addition to the attacked Act 457, the very same 1970 legislature passed two acts specifically amending and reenacting sections of Sub-Part D pertaining solely to the control of amphetamines, barbiturates, and hallucinogens. 7
Finally, Act 457's title does not itself indicate any intent to codify or enact a system of laws. See: State v. Carter, 227 La. 820, 80 So.2d 420 (1955); Wall v. Close, 203 La. 345, 14 So.2d 19 (1943). The title of the act (see Footnote 4) indicates that Sub-Part A will be designated as the 'Uniform Controlled Dangerous Substances Law'. Thus, entitling Sub-...
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