State v. Wendler

• Decision Date: 13 October 1896
• Citation: 94 Wis. 369,68 N.W. 759
• Parties: STATE v. WENDLER.
• Court: Wisconsin Supreme Court

94 Wis. 369

68 N.W. 759

STATE

v.WENDLER.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Case reported from Winnebago; C. D. Cleveland, Judge.

Emil Wendler was convicted of violating the game law, and moved to set aside the verdict, and for a new trial, and in arrest of judgment. The county judge reported the case to the supreme court, and submitted questions for decision.

Emil Wendler was prosecuted before the county court of Winnebago county for catching fish in the waters of Lake Winnebago with a gill net, contrary to the provisions of subdivision 1, § 35, c. 221, Laws 1895. Before trial on the merits, he moved to quash the complaint, on the ground that chapter 221, aforesaid, was not a valid law, and never passed the legislature. He also filed a plea in abatement to the same effect. The issue arising upon the plea in abatement was tried, the defendant offering in evidence copies of two bills on file in the office of the secretary of state, the first being entitled “Amended and corrected substitute for No. 258 S, a bill to revise, amend, and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof;” the second being entitled “A bill to revise, amend and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation theerof.” Each document is duly certified by the secretary of state as having been “compared with the original bill, and to be a true copy thereof, and of the whole of such original.” The defendant also offered in evidence the senate and assembly journals for the session of 1895, and called attention to all entries in either journal relating to bill No. 258 S. The motion to quash was denied, and the plea in abatement overruled, and the defendant excepted; whereupon the defendant pleaded “Not guilty,” and the trial proceeded on the merits. A verdict of guilty was rendered, whereupon the defendant moved to set aside the verdict and for a new trial, and at the same time moved in arrest of judgment; both motions being founded on the same ground as the plea in abatement. Thereupon the county judge reported the case to this court, and submitted to the court the following questions for decision: “First question: Did chapter 221, Laws 1895, pass both houses of the legislature, so as to become a valid law? Second question: Was the law known as chapter 221, Laws 1895, ever enacted and passed by the legislature of the state of Wisconsin? Third question: Can any judgment be pronounced or rendered upon said verdict of guilty in this action? Fourth question: Can the defendant be sentenced under any of the provisions of chapter 221, Laws 1895? Fifth question: Did the court err in refusing to grant defendant's motion to quash the complaint, and in overruling the defendant's plea in abatement? Sixth question: If defendant's motion in arrest of judgment should be granted, can defendant properly be tried again for said offense charged against him?”H. B. Harshaw, C. E. Whelan, and J. L. Erdall, Asst. Atty. Gen., for the State.

Where an appropriation bill is amended, and the amendments do not affect the appropriation clauses of the bill, it is unnecessary, under Const. art. 8, § 8, to take a yea and nay vote on the adoption of the amendments. State v. Liedtke, 9 Neb. 490, 4 N. W. 75;Dow v. Beidelman, 49 Ark. 325, 5 S. W. 297;Robertson v. People (Colo. Sup.) 38 Pac. 326, 327; Division of Howard Co., 15 Kan. 194; Smithee v. Campbell, 41 Ark. 471; Jones v. Hutchinson, 43 Ala. 721; Nelson v. Haywood Co., 91 Tenn. 596, 20 S. W. 1;State v. Hagood, 13 S. C. 46.

Hume, Oellerich & Jackson, for defendant.

Const. art. 8, § 8, requires a yea and nay vote to be taken on the adoption of amendmentsto an appropriation bill, though the appropriation clause is not affected by the amendments. Suth. St. Const. par. 48; Cooley, Const. Lim. (3d Ed.) pars. 135, 136, 140; Black, Const. Law, pp. 284, 285; Smithee v. Garth, 33 Ark. 1; Story, Const. pp. 590, 591; 4 Webst. Works, p. 295; Walk. Am. Law, p. 85; 1 Story, Const. § 840; Worthen v. Badgett, 32 Ark. 513; Supervisors v. Heenan, 2 Minn. 330 (Gil. 281); Wise v. Bigger, 79 Va. 269;Fordyce v. Godman, 20 Ohio St. 1;Lincoln v. Haugen (Minn.) 48 N. W. 196;Spangler v. Jacoby, 14 Ill. 297;People v. De Wolf, 62 Ill. 253;People v. Loewenthal, 93 Ill. 191, 206;Norman v. Board of Managers (Ky.) 20 S. W. 901;Whittaker v. City of Janesville, 33 Wis. 76;McDonald v. State, 80 Wis. 407, 50 N. W. 185.

WINSLOW, J. (after stating the facts).

There are printed in the Session Laws of the state for the year 1895 two laws purporting to be chapter 221. The first of these apparent laws begins on page 367, and will be referred to in this opinion as “chapter 221 A,” and the second immediately follows it, beginning on page 397, and will be referred to as “chapter 221 B.” There are certain differences between the two, which it is unnecessary now to state. The constitutionality of certain provisions of this law or these laws was before the court in a former case. Bittenhaus v. Johnston, 66 N. W. 805. The provisions in question in that case were attacked as unconstitutional, because it was claimed that they were (a) ex post facto; (b) class legislation; and (c) that they deprived persons of property without due process of law. These objections were all overruled in that case. That decision, however, casts no light upon the present case. None of the questions now presented arose or were even remotely considered in that case. The question here is whether any such law as chapter 221 A or 221 B ever in fact passed the legislature, and was approved by the governor, so as to become a valid law. It appears to be a fact that two bills reached the governor's office, differing somewhat in some matters, both apparently passed by the legislature. It further appears that both of these bills were signed by the governor, and deposited in the office of the secretary of state. Here, apparently, the difficulty was first discovered. The duty of the secretary was, undoubtedly, to publish both apparent laws. He could not correct or revise them, save to correct manifest errors in spelling or grammar. Rev. St. § 343. It would be a fruitless task to inquire as to where the blunder occurred. It seems that, by some mistake, there must have been two bills sent from the senate to the governor for signature, and that, in the press of business, the fact that there were two bills was not discovered, and both were signed. However this may be, it is absolutely certain that there was in fact but one bill, No. 258 S, and that but one bill was voted on in the legislature.

It is claimed by counsel for the defendant, and admitted by counsel for the state, that chapter 221 A is materially different from the engrossed bill of the senate, and hence that it is not the bill which passed either house, and, consequently, that it is not a law. This admission was certainly advisedly made. The conclusion is inevitable. Such being the fact, we have simply to consider whether the chapter which we have called “221 B” ever became a law. The objections made to the chapter are: First. That it never in fact passed the legislature, or, if it did pass, it did not pass by a yea and nay vote; and hence that it was not constitutionally passed, because it is a law making an appropriation of public money. Const. art. 8, § 8. Second. That the governor never signed the bill as passed by the legislature, if any bill was in fact legally passed.

In considering these objections, a history of the progress of the bill through both houses, as disclosed by the journals of the houses, becomes necessary. On the 12th day of February, 1895, a bill No. 258 S was introduced in the senate, entitled “A bill to revise, amend and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof,” and was referred to the committee on fish and game. On the 21st of March following, the committee reported the bill back with amendment by way of a substitute, and recommended its passage when so amended. On the 28th of March, an amendment was offered, and the bill, with the amendment, was re-referred to the committee on fish and game, who, on the 5th of April, reported it back, with amendments, and recommended its passage as amended. It then went to the joint committee on claims, who on the same day reported it back, and recommended its passage. On the 9th of April two amendments were adopted to the bill, and it was ordered engrossed and read a third time. On the same day it was reported correctly engrossed, and the rules were suspended, and it was read a third time, and passed by a yea and nay vote,--28 yeas and 1 nay. The bill then went to the assembly, where it was received April 10th. It was made a special order for April 12th at 11 a. m., at which time several amendments were adopted, and the bill as amended was passed or concurred in by a yea and nay vote. None of the amendments adopted made any appropriation or affected any appropriation clause of the bill. On being returned to the senate, that body refused to concur in the assembly amendments, and a joint conference committee was appointed. The conference committee reported to the senate April 13th, and recommended amendments as follows: “Amend by striking out the word ‘tenth,’ in line 4, section 14, and insert in lieu thereof the word ‘first.’ Amend the printed bill by striking out the words ‘and of the Mississippi river’ where they occur in the third line of section 11. Also amend section 16 of the printed bill by inserting the word ‘and’ after the words ‘Sturgeon Bay’ where they occur in the eighth line, and by striking out the words ‘and of the Mississippi river’ where they occur in the eighth and ninth lines of said section. Amend by striking out subdivision 4 of section 22 of the printed bill, and renumber subdivisions 4 to 9, inclusive. All other am...