12 Ind. 641 | Ind. | 1859
Reed was convicted of grand larceny. The only question in the ease is, whether the Common Pleas Court had jurisdiction.
It is conceded by the counsel for the defendant, that the legislature possesses the power to confer jurisdiction over such offenses. The question is, has it been exercised in a constitutional manner?
The act purporting to confer the jurisdiction, was passed at the last session of the General Assembly. Acts 1859, p. 94.
It is insisted that the title of the act is not broad, comprehensive, and at the same time specific, enough, to properly embrace within it the provision in question, keeping in' view § 19 of art. 4 of the constitution, namely,
“Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title,” &c.
The title is as follows: “ An act to amend section eleven of an act entitled ‘ An act to establish Courts of Common
Section 11 of the original act, to which the first part of this title refers, is the one conferring and defining the jurisdiction of that Court in civil cases. The first section of this amendatory act is relative to jurisdiction in civil cases, and it is argued that the whole subject properly embraced within the title, was, by that section, exhausted; that the second section, upon the subject of the jurisdiction of that Court over felonies, was not, therefore, legitimately placed in the bill, under that title.
'We cannot concur in this view. We are of opinion that the latter part of the title, to-wit, “so as to extend the jurisdiction of said Court in certain cases,” may, and does, embrace within its legitimate meaning, the extension or increase of the jurisdiction of the Court in criminal cases. If this is to be regarded as an original enactment, then, even if the subject is not embraced in the title, as a primary and substantive subject of thé then action of the legislative body, it falls clearly within “matters properly connected therewith”—that is, with the subject which must be embraced in the title, namely, the jurisdiction of the Court. In other words, this fundamental provision does not require that all the “matters properly connected” with the principal subject-matter of such bill, shall be expressed in the title, but only that principal subject. Here the principal subject of the act in question, is in relation, to the increase of the jurisdiction of the Court. Gabbert v. The Jeffersonville Railroad Co., 11 Ind. R. 365.
It has been’ suggested, in consultation, that, in amendatory enactments, there can be but one legitimate purpose in view, under § 21 of the same art. of the constitution, and the law relative to amendments. Section 21 is, that “No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended, shall be set forth and published at full length.”
In the case at bar, § 11 of the act of 1852 is the only
The purpose which, it has been suggested, was in view by the adoption of the statute, under the title given it, could not have been other than to perfect the section named, upon the particular subject therein treated of, to-wit, civil jurisdiction in certain enumerated cases; that the section of the constitution (§ 19) which permits matters properly connected with the main subject of the enactment, to be embraced in the same bill with the main subject, can have reference only to enactments of an original, primary character, and not to such as profess to be, and are, of a mere amendatory character; that in the latter class of enactments there can be but one object in view, one subject embraced, and that is, in regard to the particular clause of the original act to which the title of the amendatory one refers; that when the amendatory enactment has • fully treated of that particular clause, no other matter can be included in its provisions, as being properly connected therewith, even though it might be so included, if it was a bill of the original character above indicated.
There is much force in these suggestions, because of the great difficulty in tracing a precise line beyond which it would be an excess of power to go, and within which the legislative power may legally act. Although it is a salutary rule to construe a fundamental law strictly, yet if, in applying the usual rules of construction, doubt should still exist as to whether the enactment is in consonance with the fundamental law, we know of no safer guide than to let the coordinate branches of the government have the benefit of that doubt, and only declare an act unconstitutional by judicial decision, when it is manifestly so. Care should be taken that this construction, given by each of the departments of the government, within its legitimate sphere, to any particular clause of the constitution, should
Keeping these things in view, we again recur to the suggestion upon the 21st section named, and inquire whether the additional jurisdiction extended to the Common Pleas Court by the act under consideration, can properly be included within the title, and be conferred under it.
To arrive at a correct solution of this inquiry, it is, perhaps, necessary to advert, for a moment, to the parliamentary law, upon the subject of amendments, as applied in legislation.
It is said in § 35 of Jefferson’s Manual, that “Amendments may be made so as totally to alter the nature of the proposition; and it is a way of getting rid of a proposition, by making it bear a sense different from what was intended by the movers, so that they vote against it themselves. A new bill may be ingrafted, by way of amendment, on the words, ‘ Be it enacted,’ ” &c. See, also, 2 Hats. 110; 4 id. 84, 87. ¥e have verified these references, and find they sustain the text of Jefferson.
In the convention which framed the constitution, it was stated by a leading member, upon the first day of the session, before the adoption of any rules by that body for its government, that “the lex parliamenlaria was as much the law to govern every deliberative body in this country, until such body had adopted rules for its own government, as the common law was applicable to the government of proceedings of the Courts of law.” Deb. vol. 1, p. 6. This proposition, so advanced, was acquiesced in by that body; and, on the same day, a resolution was adopted, “ that a committee be appointed to report rules of order for the govern
The journal.of that convention shows that, in many instances, propositions by the way, and under the name, of amendments, were introduced, entertained, and acted upon, by that body, which were not directly relevant and germane to the subject-matter of the original proposition. Examples may be seen in almost every day’s proceedings, of motions by way of amendment acted upon, to strike out, sometimes the whole, at other times a part, of a section, and which, although it might be upon the same general subject, yet would evidently lead to other results and conclusions.
It has been further suggested that although the authority in Jefferson was, and is, the parliamentary law, in England, and, at the time it was written, in this country, yet that there has grown up a different rule here; that an amendment cannot be different from the original proposition, and must be to perfect, alter, change, or modify that proposition. So far as there has been any change or departure from the rule laid down by Jefferson, it has grown out of the national or state legislative bodies in this country, having adopted and acted upon arbitrary rules upon that point. Whether, as avowed by a member, and silently conceded by the convention, the lex parliamentaria was in force here at the time of the sittings of that body, as contradistinguished from certain usages which had grown up in this country, under local rules upon the subject, we need not pause to inquire. The result arrived at, construing the term amendment by the one or the other of these rules, is, as to this enactment, the same.
The usage referred to has grown up under the following rule adopted by.the House of Representatives of the United States, in 1822, and somewhat similar ones which had
Similar rules are adopted and acted upon in many of the states.
Now, as to the application of. the rule. In the 31st Congress, 1st Sess., Jo’urn. of the House, p. 784, a bill was under consideration granting the right of way, and making a grant of lands to the state of Michigan, and it was held admissible to amend it by adding thereto a provision for a similar grant to other states for sundry railroads therein. So, upon a bill proposing to the state of Texas a definition of her boundaries, and the relinquishment by her of certain territory, &c., it was moved to amend by adding two new sections, providing territorial governments for New Mexico and Utah. Objection, that the amendment was not germane, held admissible by the speaker and sustained by the House.
So, in a late work, it is said that “ A proposition may be amended, in parliamentary phraseology, not only by an alteration which carries out and effects the purpose of the mover, but also by one which entirely destroys that purpose, or which even makes the proposition express a sense the very reverse of that intended by the mover; and, in like manner, a motion, which proposes one kind of proceeding, may be turned into a motion for another of a wholly different kind by means of 'an amendment.” Law and Pract. of Leg. Assemblies in the' United - States, by Cushing, ed. 1850, p. 516.
It is again objected that the division of the amendatory act into' two paragraphs or sections, is evidence that two subject-matters are included in it; that as the title professes to amend but one section of the old law, that amendment must be contained, and be presumed to be so contained, in the section of the amendatory enactment within which the old law to be amended is set forth.
Upon the question of numbering and paragraphing, the authority last referred to is as follows: “ The numbers pre
Wé think, therefore,’thatj as before stated, the subject of the eleventh section of the old statute was in relation to the jurisdiction of the Court; and as the subject of the statute under consideration was an increase of the jurisdiction of that Court, the whole of said act upon that subject was properly included under the title set forth; and that the whole of the enactment, in that respect, is an amendment of that section, expressed, it is true,' in a very inartificial, bungling, and awkward form, but conforming substantially to the constitutional requirement.
The principal question in this case, arises under the 22d and 23d sections of the 4th art. of the constitution, which, so far as applicable, is as follows:
“ Sec. 22. The Géneral Assembly shall not pass local or special laws in any of the. following enumerated cases, that is to say: * * * * Regulating the practice in Courts of justice. *****
“ Sec. 23. • In all the cases enumerated in the preceding section, and in all other ’ cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.”
By the act organizing Circuit Courts (2 R. S. p. 5), and that in regard to the rules, practice, &c., in criminal cases (id. 361), and also an act to limit the number of grand jurors, &c., and defining their jurisdiction, &c. (id. 387), exclusive jurisdiction over felonies, was vested in the grand jury and Circuit Court. Spencer v. The State, 5 Ind. R. 41.
The mode of proceeding in prosecutions for felony, is pointed out by the statutes above referred to. The grand jury is selected and organized in a manner, if the statute is observed, which shows that much caution and circumspection was thought necessary upon that point. That
It was to remedy these, and various evils of a kindred character, that the clause and sections under consideration were adopted.
It was not made a cause of complaint, under the clause of the constitution of 1816, that many offenders against
The constitution expressly provides that “the General Assembly may modify or abolish the grand jury system.” § 17, art. 7. As we have seen, some modification of that system has been made; and it is not insisted but that it .might be, by the legislature, entirely abolished.
But it is urged that, whilst that mode of presenting a man for trial remains the only mode of arriving at such a result in one Court of the state, no mode, essentially differing therefrom, can be established in another Court, having like jurisdiction of the same offenses, and both modes of procedure stand; that one or the other must fall; that the law must be uniform throughout the state.
This argument, carried to its legitimate conclusion, would require the same proceedings in all Courts having concurrent jurisdiction. For instance, there are some offenses treated as misdemeanors, by the statutes defining the offense and prescribing the punishment; and yet the Circuit, the Common Pleas, justices’ and city Courts have concurrent jurisdiction conferred, to hear, try, and determine, &c. Under the practice which has obtained heretofore, one offender would be placed upon his trial in the first-named Court upon an indictment preferred by a grand jury; in the second, upon an information preferred by the district attorney, founded upon an affidavit; in the thfid, upon an affidavit alone, &c. So of the offense in the case at bar, if the defendant had been prosecuted in the Circuit Court therefor, twelve men would have passed upon the charge against him before he could have been placed upon his trial. Nine men would have agreed that he should be so placed. In the Common Pleas, an affidavit was filed by one person, and an information filed thereon
But still, the question remains, is it within the province of the legislature to prescribe'the one mode'of proceeding in the Circuit Court, and the other in the Common Pleas, and a slightly different one before a justice, for the purpose of charging and placing upon trial a man guilty of an offense? Does .this meet the requirements of the constitution, that the laws'shall'be general and of uniform operation throughout the state, upon the subject of regulating the practice in Courts of justice?
The judiciary should set out, in the examinatibn of every statute, with the presumption that the acts of the two coordinate departments of the government have been within the powers conferred upon them. Waldo v. Wallace, at this term
Indeed, soon after the adoption of the constitution, a statute very similar to the one under consideration, received the direct sanction of the legislative and executive branches of the government (2 R. S. p. 19), and the indirect approval of this Court. Lindville v. The State, 3 Ind. R. 580. It is true, that the law under which Lindville was prosecuted, was afterwards decided to be inoperative. Spencer v. The State, 5 Ind. R. 41. Yet it was not because it was unconstitutional, but for the reason that it was repealed by an act passed at the same session, but of a later date, and which was not in force at the time of the decision in the case in 3 Ind. R. The act under which Lindville was prosecuted, and which was very similar to the one of last winter, was put in force by an emergency clause. The one which repealed it by implication, was léft to be put in force when regularly circulated. So that decision may be regarded as an indirect judicial construction of the provisions of the constitution now being con
But, to take a more comprehensive view of the question, we do not well perceive how the advocates of a rigid application of the clauses upon the subject of an uniformity of laws throughout the state, to the modes of practice in different Courts, can stop at its application to cases alone where concurrent jurisdiction is given. If the view we have taken is incorrect, and laws “regulating the practice in Courts of justice” must be general and uniform as to the mode and manner of proceeding in the several Courts where there is concurrent jurisdiction, a like mode of reasoning would require that the same rule should be applied in all other cases.
In other words, felonies could not be prosecuted in the Circuit Court by one mode of procedure, and misdemeanors in the Common Pleas by another mode. This would involve the somewhat absurd conclusion, that the whole contemporary practice of the several departments of the government, in that respect, was wrong, and has continued wrong up to this time; and that the sense in which those portions of that instrument was then understood by persons acting in those departments, was an improper one.
We are, therefore, of opinion that the judgment of the Common Pleas Court should be affirmed.
Davison, J., dissented.
The judgment is affirmed with costs.
Ante, 569.