93 Va. 159 | Va. | 1896
delivered the opinion of the court.
This is a petition for a writ of habeas corpus addressed to this court by Richard M. Lacey, who alleges that he is detained without lawful authority and deprived of his liberty by one William H. Palmer, sheriff, and ex officio jailer, of the county of Alexandria.
It seems that he was committed to the custody of the sheriff by virtue of a warrant dated the 31st of March, 1896, charged with violating an act of the Legislature, approved February 29, 1896 (Acts 1895-6, ch. 539, p. 576), which declares it to be “ unlawful for any person or persons, or association of persons, corporation or corporations, by any ways, means, or devices to make any bet or wager, or receive or record or register, or forward, or purport or pretend to forward, any money, thing, or consideration of value to be bet- or wagered upon the result of any trial of speed or power of endurance or skill of animals or beasts which is to take place beyond the limits of this Commonwealth, or by any ways, means, or devices to aid, assist, or abet in making of any bet or wager, or the receiving, recording, or registering, or forwarding or purporting or pretending to forward, any money, thing, or consideration of value to be bet or wagered upon the result of any trial of speed or power of endurance or skill of animals or beasts which is to take place beyond the limits of this Commonwealth, or to aid or assist or abet in any way or in any manner in any of the acts forbidden by this act.
“ 2. That any person or persons or association of persons or corporation or corporations violating the provisions of
The warrant of arrest does not charge the defendant with having done any of the specific acts which the statute just quoted makes unlawful, but avers in general terms that the defendant, with others named in the said warrant, was guilty -of each and all of the acts forbidden therein; and the commitment commands the sheriff to deliver Richard M. Lacey to the custody of the jailer of the county of Alexandria to answer an indictment for the offence thus described, at the September term of the County Court.
The petitioner claims that this statute is repugnant to Article V., section 15, of the Constitution of Virginia; that it is repugnant to Article I., section 8, clause 3, of the Constitution of the United States; that it is inoperative, because two laws received the signature of the Governor upon the same day which are inconsistent, the one with the other, and, as there is no means of determining which of the two is the last expression of the legislative will, neither can be -operative, the one repealing the other by necessary implication; that the warrant in this case is void because it is vague and indefinite, and does not with sufficient certainty recite the offence with which the petitioner is charged, as required by section 3956 of the Code; and, finally, that the commitment is a nullity because by section 4106 of the Code, as amended by Act of the General Assembly of Virginia, approved March 5, 1896 (Acts 1895-6, ch. 845, p. 924), it was the duty of the justice to try the prisoner for the offence with which he was charged instead of committing him for trial by the County Court.
The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner. The only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law.
Is the statute under consideration repugnant to the Constitution of the State ? Article 5, section 15, of the Constitution declares that “ no law shall embrace more than one object which shall be expressed in its title.” This section has been recently construed by this court, which ruled that it was intended to forbid the use of deceptive titles as a cover for vicious legislation; to prevent bringing together in one bill subjects diverse and dissimilar in their nature and having no necessary connection with each other; and to avoid surprise in matters of which the title gave no intimation. See Commonwealth v. Brown, 91 Va. 762; Ingles v. Straus, 91 Va. 209.
The title of the act in question is as follows: “ An act to prevent pool-selling, and so forth, upon the results of any trials of speed of any animals or beasts taking place without the limits of the Commonwealth.”
A pool is defined by the Century Dictionary to be, in horse racing, ball games, etc., “the combination of a number of persons, each staking a sum of money on the success of a horse in a race, the contestant in a game, etc., the money to be divided among the successful betters according to the amount put in by each.” It is, therefore, one of the forms of making bets or wagers upon horse races, while the statute makes “unlawful a bet or wager by any ways, means, or devices, or the receiving, or recording, or registering, or forwarding or purporting or pretending to forward any money, thing, or consideration of value to be bet or wagered upon the result of any trial of speed or power of endurance, or skill of animals or beasts which is to take place beyond the limits of the Commonwealth.” Without quoting further
Cooley, in his work on Const. Lim., speaking of the effect of such a constitutional provision as that under consideration, where the act is broader than the title, says: “ In such a case it may happen that one part of it can stand, because indicated by the title; while as to the objects not indicated by the title, it must fail.”
We do not consider the act as obnoxious to that part of the clause of the Constitution, just quoted, which says that ■“no law shall embrace more than one object.” The object of this law is the suppression of gambling, or that form of gambling, where the bet or wager is made upon the speed or endurance or skill of animals or beasts, for, as was said in Ingles v. Straus, supra: “If the subjects embraced by the •statute, but not specified in the title, have congruity or natural connection with the subject stated in the title, or are cognate or germane thereto, the requirement of the Constitution is satisfied.” Were the title sufficiently broad to cover the objects declared in the bill, there would be, in our judgment, no repugnancy to the constitutional provision in question, because all the provisions of the act may fairly be regarded as in furtherance of a single object, “ the suppression of gambling.” The Constitution, moreover, is to be construed so as to uphold the law if practicable. All that is required by the constitutional provision is that the subjects embraced in the statute, but not specified in the title, shall be congruous, and have natural con
There is no such incongruity of objects and purposes in the statute as to render it obnoxious to the clause under consideration. The act, however, is far broader than the title, and can therefore only be operative as to that part of it which is indicated by its title. In other words, the only offence which can be punished by virtue of this statute is the particular form of making a bet or wager known as “ pool-selling.”
It is claimed on behalf of the Commonwealth that the defect is cured by the use of the words “ and so forth,” but in this view we cannot concur. The provision of the Constitution is mandatory. We think it is a wise and salutary provision, but whether it be or not, it is the law of the land, and must be obeyed. To hold that the Legislature could, by the use of such a phrase as “ and so forth ” supply an omission and cure an otherwise defective title would be to fritter away the constitutional provision, and render it illusive and nugatory. See Cooley on Const. Lim. (6th ed.), p. 174. These words express nothing, and amount to nothing as a compliance with this constitutional requirement. Nothing which the act would not embrace without them can be brought in with their aid. Fishkill v. Fishkill, 22 Barb. 634; Johnson v. Spicer, 107 N. Y. 185.
We are of opinion, therefore, that, while the body of the act is broader than its title, and the title is not aided by the introduction of the phrase just discussed, the statute is not wholly inoperative for repugnancy to the Constitution of the State, but is a valid law so far as it makes pool-selling an offence and prescribes the punishment for it.
We will now proceed to consider the alleged repugnancy of the act in question to Article I, clause 3, section 8 of the Constitution of the United States, which declares that “ Congress shall have power to regulate commerce with foreign
It is conceded that the power thus conferred is, when exercised by Congress, exclusive in its operation. It is also conceded that the abstention on the part of Congress from passing laws in the exercise of its power to regulate commerce is equivalent to an expression of its will that, in those respects in which it can be reached and controlled by regulations of a general character, it shall remain free. On the other hand, there is a reserve of power and duty in the States, the due exercise of which is essential to the maintenance of order, the preservation of health, and the promotion of good morals. In fact, almost the whole of the great body of municipal law which establishes and enforces the duties of citizens to each other, is embraced within and known as the police power. In it is to be found, says Blackstone, 4 Com. 162, the “ due regulation and domestic order of the kingdom whereby the inhabitants of a State, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good morals, and to be decent, industrious, and inoffensive in their respective stations.” The professed object of all government is to promote the general welfare, and it cannot be denied, that the subjects enumerated in the above extract are of prime importance not only to the welfare and happiness of. men, but are essential to their very existence in a state of civilized society. The object of the law is the suppression of gambling in its most attractive, seductive, and, therefore, the most dangerous of its many forms. That gaming is a vice which it is the right and duty
“The right to legislate upon the subjects of intoxicating liquors is acknowledged by every one, and is founded upon the fact that their use in excessive quantities leads, in large masses of cases, to crime, poverty, and enormous suffering, and bears most harmfully upon the sum of happiness of the human race. So in regard to lotteries in general. A widespread custom of indulgence in the purchase of tickets leads, among the poorer classes certainly, and also among others, to habits of recklessness, waste, and idleness. It cultivates a gambling spirit and tends to a hatred of honest labor, and to a desire to obtain riches or money without the necessary expenditure of industrious energy.” People v. Gillson, 109 N. Y. 404.
The act in question would seem, then, to be in the performance of the obligation which rests upon the General Assembly of Virginia to pass laws to suppress a recognized vice. There is no question that the police power must be exercised in subordination to the Constitution of the State, and a fortiori that it must not be in contravention of the Constitution of the United States. Now, as the proper discharge of the functions and duties entrusted to the National and State governments is necessary to the highest efficiency of both, it follows that in the development and growth of the two systems thus blended and interwoven and operating directly, each by its own force, upon the same individuals, wisdom and prudence must prevail in order that the happiest and best results may be achieved.
In the case before us, there would seem to be no reason why any antagonism or conflict should result from the exercise within their appointed limits of the power on the part of Congress to regulate commerce among the States, and the duty of the State to suppress a recognized offence against
In Cohens v. Virginia, 6 Wheaton, 264, 443 (a case, by the way, in which a lottery established by the Congress of the United States sought to set at naught a law of the State of Virginia which forbade the sale of lottery tickets within her borders), it was said by Chief-Justice Marshall: “To interfere with the penal laws of a State, where they are not leveled ■against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. The motives for it must be serious and weighty. It would be taken deliberately, and the intention would be clearly and unequivocally expressed.”
The same spirit, happily, still animates the Supreme Court of the United States. It fully recognizes the difficulty oftentimes presented of securing harmonious operation to the just and necessary powers of the Federal and State governments, and with none of the provisions of the Federal Constitution is there more frequent opportunity for interference and conflict than under the commerce clause of the one und the police power of the other. The great truth must be recognized that the government of our people in its entirety consists of an “ indissoluble union of indestructible States,” and that as a consequence it is as much the duty of every department of the government of the United States to preserve in their full and unimpaired vigor those powers which, in the distribution of governmental functions, were reserved to the States as to cherish and foster the growth and ex
Since that case was decided we have further investigated the authorities on the subject, and are strengthened in the conviction that no decision of the Supreme Court of the United States can be found holding a State law invalid as-being repugnant to the commerce clause of the Constitution which was enacted in the bona fide exercise of the police power of the State, for the suppression of a recognized vice, or to prevent the sale of adulterated food, or the manufacture of food from impure materials, or to prevent the spread
While a State law which operates as a regulation of interstate commerce, or which affects it, except incidentally, could not be upheld under the police power of the State; while laws pretending or purporting to be in the exercise of the police po^er, but which are but devices and schemes under cover of that power to accomplish some purpose forbidden to the State, are void; yet State laws passed with the honest purpose of promoting the health, the morals, or the well-being of its citizens, are valid.
Contracts are peculiarly under the protection of the Constitution of the United State, which declares that no State shall pass a law impairing their obligation; and yet it is not
It is insisted here, however, that inasmuch as the offence consists in forwarding a sum of money by telegraph to Wheeling, W. Va., to be wagered on a trial of speed of horses to take place at St. Louis, Mo., it not being unlawful, as it is claimed, to make such a wager in West Virginia, the act making it criminal is void, not only as being repugnant to the commerce clause of the Constitution, but as an attempt to punish the doing in West Virginia of an act lawful in that State.
We have said enough to show that there is, in our opinion, no repugnancy in the statute to the commerce clause of the Constitution. Upon the other point we might content ourselves with observing that as we are not trying the issue of guilty or not guilty, but only whether there is lawful cause for the detention of petitioner disclosed by the warrant and commitment, the effect of the proof of the law of West Virginia, as of all other facts, must be postponed till the trial; but as an expression of opinion has been sought, and there can be no impropriety in giving it, we are willing to go somewhat into this branch of the subject also.
Another objection taken to the warrant is that it is too-vague and indefinite; that it is the right of a person accused of crime to be informed of the “ cause and nature of the accusation against him.”
Warrants of arrest are required to recite the offence charged, but the same particularity is not expected or required as in indictments or more formal papers. See 3 Rob. Pr., p. 10 (old ed.); Bishop on Crim. Proc. sec. 714.
While we think it would be better practice to state the offence more specifically than has been done here, we are not prepared to say that we would on that account alone he-
The remaining ground of objection, however, is fatal to the warrant of commitment under which the prisoner is held. By section 4106 of the Code, as amended by an act approved March 5, 1896 (Acts 1895-96, ,ch. 845, p. 924), justices of the peace are given “ exclusive original jurisdiction of all misdemeanors occurring within their jurisdiction,” and are authorized to inflict th e same punishments theretofore imposed by county and corporation courts. By section 4107 an unrestricted right of appeal to the county or corporation court is secured, where the accused can demand a jury, but the trial and judgment must in the first instance be before the justice. The effect of this statute is to take away from county and corporation courts the power to try misdemeanors as courts of original jurisdiction. It takes away their power to try misdemeanors even in those cases where indictments or informations were pending. See Dulin v. Lillard, Sheriff, 91 Va. 718, where the effect of a similar statute is fully discussed and considered and the authorities bearing upon it are collated.
For the foregoing reasons we are of opinion, first, that on account of the insufficiency of the title of the act set out in the warrant, pool-selling is the only form of bet or wager that is made punishable thereby; secondly, that there is no repeal by implication of either of the two acts passed February 29, 1896, but that the act entitled “ An act to prevent pool-selling, &e., upon the results of any trials of speed of any animals or beasts taking place without the limits of the Commonwealth ” (Acts 1895-96, ch. 539, p. 576), is effective only as to pool-selling; while the act entitled “ An act to prevent gambling and selling or making books, pools or mutuals within the Commonwealth of Virginia” (Acts 1895-96, ch. 545, p. 579), is in all respects in full force and vigor; thirdly, that neither act is repugnant to the Consti
The prisoner must be discharged.
Prisoner discharged.