The State v. Arnold

• Decision Date: 20 November 1894
• Docket Number: 17,317
• Citation: 38 N.E. 820,140 Ind. 628
• Parties: The State v. Arnold et al
• Court: Indiana Supreme Court

38 N.E. 820

140 Ind. 628

The State v. Arnold et al

No. 17,317

Supreme Court of Indiana

November 20, 1894

Petition for Rehearing Overruled Apr. 5, 1895.

From the Whitley Circuit Court.

The judgment is reversed and the cause remanded, with instructions to overrule the motion to quash the indictment and for further proceedings in accordance with this opinion.

A. G Smith, Attorney-General, L. D. Fleming, Prosecuting Attorney T. R. Marshall, W. F. McNagney, P. H. Clugston and W. A. Glatte, Prosecuting Attorney, for State.

H. S. Biggs, L. W. Royse and A. A. Adams, for appellees.

OPINION

Dailey, J.

The appellees were indicted, at the February term, 1894, of the Whitley Circuit Court, the charge being that they were partners doing a banking business at said county, and, as such, received a deposit of $ 25 from one William Heagy, at a time when they were insolvent, and knew of their insolvent condition.

The appellees appeared and filed a motion to quash the indictment upon the ground that the act of March 9, 1891, p. 395, of the General Assembly of this State, in so far as it relates to private bankers, is unconstitutional and void.

This motion was sustained by the court, and the State takes this appeal.

In as much as the appellees are described in the indictment as private bankers doing a partnership business, they contend that the act which purports to include them in its application is in contravention of section 19, article 4, of the Constitution of Indiana, which is as follows:

"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 title to the act of March 9, 1891, supra, upon which the indictment in this case is predicated is, "An act concerning bank officers, brokers, etc., receiving deposits after insolvency, repealing all laws in conflict herewith."

The appellees contend that the title of the act, in its present form, does not differ essentially from what it would be if the "etc." were omitted therefrom and it read: An act concerning bank officers and brokers receiving deposits after insolvency, and that it is not broad enough to warrant legislation touching an entirely different class of men.

The letters "etc." are an abbreviation of et cetera.

In 1 Bouvier's Law Dict., p. 610, two translations of these words are given--"and others"--"and other things."

In 1 Rapalje & Lawrence's Law Dict., p. 466, these identical definitions are given.

In Agate v. Lowenbein, 4 Daly (N. Y.), 62, it was held that "et cetera" is synonymous with "and so forth."

The expression, "and so forth," is sometimes used in pleadings simply to avoid repetition, but the law writers say it is not used in solemn instruments. 6 S. & R. (6 Pa.) 427.

In 23 Am. and Eng. Encyc. of Law, 240, it is said: "The words, 'and for other purposes,' frequently suffixed to the title of a statute imply purposes not named in the title. 'Etc.' has also been held to have no meaning as apart from the title of an act." State v. Hackett, 5 La. Ann. 91.

It is said, in Cooley's Const. Lim. (5th ed.), p. 176: "The words, 'and for other purposes,' must be laid out of consideration. They express nothing and amount to nothing as a compliance with this constitutional requirement. Nothing which the act could not embrace without them can be brought in by their aid."

Applying this test, what subject would one look for in the body of the act, under the head of "etc." in the index? What would be suggested to the mind by the phrase "and others" or "and so forth," discovered in the index? In such case it seems clear that the court could not enlarge the scope of the title so as to embrace matters not enumerated therein. State v. Bowers, 14 Ind. 195.

They have no dispensing power, as the constitution has made the title the conclusive index to the legislative intent as to what shall have operation. Ryerson v. Utley, 16 Mich. 269; Fishkill v. Plank Road Co., 22 Barb. 632.

In Suth. Stat. Con., section 211, the author says the title of an act is now so associated with it in the process of legislation that when, in performing its constitutional functions, it affords means of determining the legislative intent, in cases of doubt its help can not be rejected for being extrinsic and extra-legislative. We are fully persuaded, from an examination of the authorities, that the title to the act in question is not a model of skillful legislation, but think it is comprehensive enough, omitting the "etc.," to express the subject of the act, and that in the use of the words "bank officers" in the title there was sufficient indication of the legislative intent to embrace in its provisions not only officers of incorporated banks, but all persons officiating in a banking establishment or place doing a banking business. This court must judicially know, as a matter of common history, that there is a system of banking business in this State, into which private individuals and partnerships enter, not governed by any articles of incorporation, and in this arrangement, the private individuals and partnerships, if the business is large, must appoint agents, who must perform the functions and may assume the titles of certain of the bank officers--not of president or directors--but of cashier, teller, bookkeeper and the like. The official or clerk is in fact strictly the agent of the partnership or individual. Morse Banks and Banking (3d ed.), vol. 1, p. 177.

It is a matter of common intelligence, which every legislator is presumed to possess, that the only class of persons to whom this act could apply are bankers and people...