The State v. Williams

• Decision Date: 28 January 1910
• Docket Number: 21,460
• Citation: 90 N.E. 754,173 Ind. 414
• Parties: The State of Indiana v. Williams
• Court: Indiana Supreme Court

90 N.E. 754

173 Ind. 414

The State of Indiana v. Williams

No. 21,460

Supreme Court of Indiana

January 28, 1910

From Wabash Circuit Court; A. H. Plummer, Judge.

Prosecution by The State of Indiana against Gilbert Williams. From a judgment for defendant, the State appeals.

Affirmed.

James Bingham, Attorney-General, A. G. Cavins, Edward M. White and William H. Thompson, for the State.

Murphy & Todd and Condo & Browne, for appellee.

Myers J. Monks, J., absent.

OPINION

Myers J.

An election was held in Wabash county on December 29, 1908 under the act of September 26, 1908 (Acts 1908 [s. s.], p. 4), at which a majority of the legal votes cast were in favor of prohibiting the sale of intoxicating liquors as a beverage in that county. Appellee, on November 3, 1908, had been granted a license for the sale of intoxicating liquors for the term of one year. The local option statute passed both houses of the legislature on September 26, 1908. The acts were published and were circulated in the several counties November 20, 1908, and the Governor's proclamation so made. Appellee was prosecuted upon an affidavit charging him with having made an unlawful sale on April 12, 1909.

The question for determination depends upon the construction of section nine of the act of 1908, supra, reading as follows: "If a majority of the legal votes cast at said election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage in said county, then after ninety days from the date of holding said election, all licenses for the sale of intoxicating liquors granted in said county after the passage of this act shall be null and void, and the holder thereof shall be liable for any sale of liquors made by him thereafter the same as if a license had never been issued to him; if the holder of such void license shall surrender the same within ninety days from the date of holding said election, the county, town or city issuing said license shall refund to the holder an amount proportionate with the unexpired time for which the license fee shall have been paid: Provided, however, that no license issued prior to the passage of this act shall be terminated by virtue of this act or any vote thereunder."

It is not contended that the legislature had no power to annul the license, but it is claimed that section nine does not apply to appellee, for the reason that he comes within the proviso of the section as the holder of a license "issued prior to the passage," of the act, and the sole inquiry is as to the meaning of the phrase, "after the passage of this act." It is urged by the State that the phrase is synonymous with "enactment" of the statute, and has no reference to the time of its going into effect, and that when the act went into effect it related back to the time of the enactment, and that the language means such in its ordinary use and acceptance. On the part of appellee it is insisted that the phrase has reference to the time of its coming into force, and that an act cannot be said to be passed until it becomes effective as a law.

Two classes of cases are dealt with by this section, both having relation to the same period of time, one class not to be, and the other to be affected by the act. What is that period of time? In ordinary usage, the passage of an act is well understood as that time when it is stamped with the approval of the requisite vote of both houses in the constitutional manner, signed by the presiding officer of each house, and approved by the Governor, or passed over his veto, or when it becomes a law by lapse of time. But its going into effect is an entirely different thing, as is well understood. The inquiry is, Is there anything to indicate that the phrase "after the passage of this act" has a legal or technical meaning in this statute that will take it out of the generally-accepted use and understanding of the term?

It is beyond question that a legislative enactment can only go into effect either by the declaration of an emergency in the act itself, or upon distribution of the session laws to the various counties, and the proclamation of the Governor. An act without an emergency clause cannot go into effect in advance of distribution of the session laws and proclamation, even though it fixes a time for its going into effect in advance of distribution and proclamation. Cain v. Goda (1882), 84 Ind. 209; McCalment v. State (1881), 77 Ind. 250; Noel v. Ewing (1857), 9 Ind. 37; Hendrickson v. Hendrickson (1855), 7 Ind. 13; McCool v. State (1856), 7 Ind. 378; Ex parte Lucas (1901), 160 Mo. 218, 61 S.W. 218.

Repealing or saving clauses in an act do not take effect at a different time from the act as a whole, though expressed in the present tense. Leyner v. State (1857), 8 Ind. 490; Schneider v. Hussey (1881), 2 Idaho 8, 1 P. 343.

Outside this jurisdiction there is a decided conflict in the states as to the meaning of the phrase "after the passage of an act." It is held in some of the states and in the United States courts to mean the date of its enactment, authentication and approval by the Governor or President, or its passage over a veto. Eliot v. Cranston (1871), 10 R.I. 88; Walker v. Mississippi, etc., R. Co. (1875), Fed. Cas. No. 17,079; In re Tebbetts (1842), Fed. Cas. No. 13,817; Johnson v. Fay (1860), 16 Gray (Mass.) 144; Wartman v. City of Philadelphia (1859), 33 Pa. 202; Burgess v. Salmon (1878), 97 U.S. 381, 24 L.Ed. 1104; State v. Mounts (1892), 36 W.Va. 179, 14 S.E. 407, 15 L.R.A. 243; Matter of Chardavoyne (1887), 5 Dem. Surr. 466. The rule of the latter case is however denied in the case of Matter of Howe (1888), 48 Hun 235, and the opinion of the supreme court is affirmed in Matter of Howe (1889), 112 N.Y. 100, 19 N.E. 513, 2 L.R.A. 825. There are many cases to the point that the phrase "after the passage" of an act is a technical term, and refers to the time of its going into effect. City of Davenport v. Davenport, etc., R. Co. (1873), 37 Iowa 624; Thompson v. Independent School Dist., etc. (1897), 102 Iowa 94, 70 N.W. 1093; Bennett v. Bevard (1858), 6 Iowa 82; Charless v. Lamberson (1855), 1 Iowa 435, 63 Am. Dec. 457; Harding v. People (1887), 10 Colo. 387, 15 P. 727; State, ex rel., v. Bemis (1895), 45 Neb. 724, 64 N.W. 348; Walker v. State (1895), 46 Neb. 25, 64 N.W. 357; Schneider v. Hussey, supra; Jackman v. Inhabitants, etc. (1875), 64 Me. 133; Patrick v. Perryman (1893), 52 Ill.App. 514; Ex parte Lucas, supra; Andrews v. St. Louis, etc., R. Co. (1884), 16 Mo.App. 299; Hill v. State (1880), 73 Tenn. 725; Logan v. State (1872), 59 Tenn. 442; In re Alexander (1907), 53 Fla. 647, 44 So. 175; Shook v. Laufer (1907), (Tex. Civ. App.), 100 S.W. 1042; Scales v. Marshall (1902), 96 Tex. 140, 70 S.W. 945; Galveston, etc., R. Co. v. State (1891), 81 Tex. 572, 17 S.W. 67. In the case of Mills v. State Board, etc. (1904), 135 Mich. 525, 98 N.W. 19 the court, referring to four or five of the cases here cited, uses this language: "In each of these cases, except Patrick v. Perryman [1893], 52 Ill.App. 514, the effect of holding that the language 'at the time of the passage of this act' referred to the date the act was approved made the law take effect at an earlier time than under the Constitution it could. There was presented to the court in each of these cases, therefore, the alternative of declaring that this language meant when the law took effect or that it meant nothing, and the court was therefore compelled to decide that it meant when the law took effect." An examination of those cases fails to convey to our minds the inference drawn by the supreme court of Michigan as to all of them, though it does as to some, but they followed the case of Patrick v. Perryman, supra.

This act undertakes to fix a time prior to which licenses issued theretofore shall not be affected and subsequent to which licenses issued thereafter shall be so affected. As the right to acquire license was not denied by the act, but recognized, with the contingent liability of annulment, by reason of the vote, it must follow that this right was intended to be unaffected, irrespective of the question whether the contingency of the ninety-day period should relate in time to the enactment by the two houses and the approval by the Governor, or to the date of the going into effect of the act up to the time of an election. That is, that an applicant might acquire license, even after the act went into effect, subject to its being annulled by the vote, and except by an annulling vote, it would be immaterial when the license was issued. With the general license statute otherwise unaffected, it was doubtless contemplated that there might be counties in which there never would be a vote adverse to licensing, or that it might be at some remote time, and that the right to apply for and obtain license should continue up to the holding of an adverse election. After such election, the privilege can be no further extended, and prior to such election, but subsequent to the going into effect of the act, and up to the time of the election, there is a modified right. The contention of the State, that upon the going into effect of the act it relates back to the time of the enactment, and fixes that as of the date of passage, we think untenable. It could not of course relate back so as to make that an offense which was not an offense until the act went into force.

In the case of Tarlton v. Peggs (1862), 18 Ind 24, it was held that an act was passed on the date of its filing in the office of the Secretary of State, where the session had adjourned with the bill in the hands of the Governor, who had returned it without objection, but that case turns on the constitutional provision that "it shall be a law, without his signature." In ...