116 Tenn. 470 | Tenn. | 1906
delivered the opinion of the Court.
The plaintiff in error was convicted in the criminal court of Shelby county, of a violation of chapter 410, p. 873, of the Session Acts of 1905. It is agreed that the facts proven brought the offense charged within the provisions of the act, and the only question made on the record is as to its constitutionality. It is in these words:
“Chapter 410. Senate Bill No. 492.
“An act to prohibit traffic in nontransferable signature tickets issued by common carriers, and to require common carriers to redeem unused or partly used tickets, and to provide punishment for the volation of this act.
“Section 1. Be it enacted by the general assembly of the State of Tennessee, that it shall be unlawful for any person, other than the authorized agent of the common carrier issuing the same, to sell, or otherwise deal in or offer to sell, any railroad, railway, steamship, or steamboat passenger ticket which shows that it was issued and sold .below the standard schedule rate under con
“Sec. 2. Be it further enacted, that it shall be the duty of every common carrier that shall have sold any ticket or other evidence of the purchaser’s right to travel on its line (or any line of which it forms a part), to, if the whole of such ticket be unused, redeem the same, paying the original purchaser thereof the actual amount for which said ticket was sold; or, if any part of such ticket be unused, to redeem such unused part, paying the original purchaser thereof at a rate which shall be equal to the difference between the price paid for the whole ticket and the price of a ticket between the points for which said ticket was actually used; provided, such purchaser shall present such unused or partly used ticket for redemption within six (6) months after the date of its issuance, to the officer or agent who shall be authorized or designated by such common carrier to redeem unused or partly used tickets, and the said officer shall, within fifteen (15) days after the receipt of said ticket, redeem the same as hereinbefore provided for. Such redemp
“Sec. 3. Be it further enacted, that any person or corporation violating any of the provisions of this act shall be guilty of a misdemeanor, and shall, upon conviction thereof, he punished by fine in the sum of not less than fifty (|50) dollars, nor more than one hundred ($100) dollars.
“Sec. 4. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.
“Passed April 13,1905.
“E. Rice,
“Speaker of the Senate.
“W. K. Abernathy,
“Speaker of the House of Representatives.
“Approved April 14, 1905:
“John I. Cox, Governor.”
The first objection made by the plaintiff in error is that this statute violates so much of section 17 of article 2 of our State constitution as provides: “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”
The purpose of this provision is well understood by the profession. Log rolling among legislators, followed often by incongruous statutes, grew to he a flagrant evil. Under that system it was altogether possible, by adroit management, for a vicious section to be concealed in a multitude of sound provisions, under an innocent, mean
The leading case in this State, and the one in which the clause was examined and proper limitations imposed upon it, is that of Gannon v. Matties, 8 Heisk., 504. Later cases have been but an application of the principle therein announced. The statute in question in that case was entitled “An act to fix the State tax on property,” and it contained a section providing for a tax on “privileges.” The insistence was that, inasmuch as “privileges” were not “property,” there was such incongruity in the act as made it obnoxious to this constitutional requirement.
In meeting the argument on which this insistence rested, after quoting with approval from the text of Judge Cooley, in his work on Constitutional Limitations, that “the generality of a title is no objection to' it so long as it is not made a cover to legislation incongruous in itself, and which, by no fair intendment can be considered as having a necessary or proper connection,” the opinion proceeded to make clear that the act embraced but one subject, that of the raising of State revenue by taxation on property and privileges, and this subject was expressed in the title. In concluding, the court, rejecting the narrowness of interpretation, which would
The rule announced by Chief Justice Nicholson in that case has been later applied by -this court on many occasions. In Frazier v. Railway Company, 88 Tenn., 138, 12 S. W., 537, it was held that the title, “An act to amend the law in relation to the consolidation of railways,” naturally embraced a provision that “no railroad company shall have power under this act or any of the. laws of this State to give or create any mortgage . . . which shall be valid and binding against judgments and decrees and executions therefrom, for timbers furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this State.”
In Ryan v. Terminal Company, 102 Tenn., 111, 50 S. W., 744, 45 L. R. A., 303, a statute which, under the title of “An act to amend an act entitled ‘An act to provide for an organization of railroad terminal corporations, and to define the powers, duties and liabilities thereof,’ ” enacted, inter alia, that a railroad company contracting for use of the facilities of a terminal company shall have power to own stock and bonds of such terminal company and to guarantee its bonds and other contracts, was held not to be violative of the constitution as grouping foreign or incongruous matter under the title.
Coming now, in the light of these cases, to the act in question, does it, either in title or body, cover incongruous legislation? Its evident purpose is to regulate the issuance, sale, and redemption of tickets sold by common carriers as evidences of the rights of purchasers to pass over the routes of travel covered by the tickets. For reasons satisfactory to itself, the legislature, in the matter of regulation, saw proper to prohibit the dealing in nontransferable signature tickets, issued and sold by the common carrier to original purchasers below the standard schedule rate, by any other person than the authorized agent of the carrier. Assuming for the moment, that this legislation is within the police power of the State, then it seems to us there is no necessary incongruity between it and a provision requiring the carrier to deem all tickets sold by him where they have been wholly or in part unused. To the contrary, we think there is a natural connection between the two. In the statute, the legislature in effect says to the common carrier : We concede that it is a wise and proper thing to
If the caption had been “An act to regulate the sale and redemption of tickets by common carriers,” we think it would hardly be insisted that the redemption of tickets was so foreign to their sale that both could not be embraced in the same act. Or, if the act had been entitled “An act to prohibit all traffic in tickets issued by common carriers, save through their authorized agents, and to require common carriers to redeem all tickets issued by them, when wholly or in part unused,” could it be maintained that an act framed in accordance with this caption was violative of the clause of the constitution we are now considering? We think not. If not, it is because neither caption nor body of the act would embrace two subjects, but rather two branches, naturally and intimately allied, of the same subject.
Neither is this contention of the plaintiff in error strengthened, nor the argument contra weakened, by the
This being entirely clear to us, we are unable to see why the present act is not constitutional, so far as this objection is concerned. It is true that the inhibition extends only to nontransferable signature tickets, while the duty of redemption is laid on the carrier as to all tickets which are wholly or in part unused; but we cannot see how the narrowness of the inhibitory clause will make two subjects alien to one another of that which would be otherwise germane and entirely congruous; nor de we believe so anomalous a result follows:
Many cases which, it is assumed, present a different view of this constitutional clause, have been pressed upon us in the very learned briefs of the several counsel of the plaintiff in error. Among those are Murphy v. State, 9 Lea, 373; State v. McCann, 4 Lea, 1; Bank v. Devine, 97 Tenn., 603, 37 S. W., 390; Saunders v. Sav
No question is made, nor is any doubt entertained by us, of tbe soundness of tbe conclusions reached by tbe court in tbe several cases. All of these, however, we think, are clearly to be distinguished from those upon the authority of which we place our holding in the present case. State v. Gerst, supra, involved a statute with the most restricted caption, embracing, however, provisions extending far beyond the limits of the caption, and having no natural connection with it. So it was in the other cases referred to by plaintiff in error; each was decided upon the distinctive features of the act there in question. After all it is to be remembered, as was said in Frazier v. Railway Company, supra: “The subjects of legislation are infinite. The determination as to whether the several provisions of an act are congruous and germane becomes largely a question of fact. Particular decisions cannot often be controlling in determination of subsequent cases arising out of this constitutional provision.” We repeat here' the language used in Ryan v. Terminal Co., supra: “As each case is presented, the courts are bound to examine the act in question as a whole, and applying to it the sound rule of construction announced in Gannon v. Mathes, supra, and their “own knowledge of affairs’ (Frazier v. Railway Co., supra), determine whether its provisions are congruous or not.”
Is this contention sound? Does the statute delegate the power to the common carrier, at Ms pleasure, to create a penal offense? Upon its face, and as it came from the hands of the legislature, it seems to be complete legislation. It defines the offense and fixes the penalty. It is true it is not self-executing, nor does it come into active operation until the condition arises contemplated by its terms. The common carrier is not bound to issue a nontransferable signature ticket, nor is any person obligated to purchase such ticket. But when the carrier does issue this ticket, and a signature purchaser is found for it, then a contract relation has been created, out of the violation of which an offense against the statute results. It is to be observed, however, that it is neither in the issuance nor original purchase that the penalty is incurred. Both these are innocent acts. It is only after these things have been done, after the control of the com
This is by no means the only law on our books which, seemingly perfect when passed, becomes effectual to punish, when through agencies not in existence at its passage and altogether voluntary in their subsequent actions is aroused to activity. Take the case of the four-mile law, which makes it unlawful to sell liquor within four miles of a schoolhouse, public or private, whether school be in session or not. This legislation was directed, not only to conditions then in existence, but to similar conditions which might arise thereafter. So it was possible for a person to make unlawful the sale of liquor by establishing a school within four miles of a place where one was then and had been before engaged in its lawful sale. Yet we have not heard it insisted that this option to make unlawful what was before lawful invalidated this wise and wholesome statute, in that it was a delegation of legislative authority to the one exercising this option.
As another illustration of the same species of legislation, we have the statute regulating conditional sales of personal property (chapters 12, 15, pp. 19, 24, Acts 1899), by which it is made a misdemeanor for a purchaser to dispose of the property bought by him until it is paid for, provided the seller has retained the title in a written or printed contract of sale, but it is not misdemeanor if the title has been retained in parol. If the argument of the counsel for plaintiff in error is correct,
We think the argument on which this contention rests unsound. The carrier, by the terms of the statute, is neither delegated the power to make the law, nor the offense. The law was made, and the offense was defined, by the legislature. The mere fact that it is within the power of parties of their own volition to create a condition from which a penalty might arise or be incurred did not affect the statute. The true distinction, said the supreme court of Ohio, in Cincinnati, W. & Z. R. Co. v. Clinton Co., 1 Ohio St., 88, “is between the delegation of power to make a law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” So, in Locke’s Appeal, 72 Pa., 491, 13 Am. Rep., 716, it is said: “The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact, or state of things, upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.”
This phase of the question underwent examination and the conclusion of the court with regard to it was supported by a full citation of authorities in State v. Thompson, 160 Mo., 333, 60 S. W., 1077, 54 L. R. A., 950,
To sustain his contention the plaintiff in error, through counsel, refers to Jannin v. State, 42 Tex. Cr. R., 631, 51 S. W., 1126, 62 S. W., 419, 96 Am. St. Rep., 821, and Allardt v. People, 197 Ill., 501, 64 N. E., 533. We have examined these cases, and, while they give
It is further said that the statute is vicious class legislation in violation of section 8, art. 11, of the State constitution, in that it suspends a general law for the benefit of the common carrier. This objection may be considered in connection with the question whether the legislation is a proper exercise of police power by the State. In a, very extensive and valuable note by Mr. Freeman to the case of Jannin v. State, 42 Tex. Cr. R., 631, 51 S. W., 1126, 62 S. W., 419, 96 Am. St. Rep., 821, there will be found a discussion of these questions and a full citation of the cases. With regard to this last question Mr. Freeman says that, whenever it has “been presented to the courts for decision, it has been almost uniformly decided that it is a reasonable and proper exercise of the State police power by the legislature when seeking to put an end to frauds in the sale of passage tickets to require carriers, who are usually created by legislation, to sell their own tickets, either directly or through duly authorized agents. . . . The courts generally hold that the legislature, in the constitutional exercise of police power, has a right to say to the common carrier, so as to bind him: Won must select and duly commission the agents who are to sell your passage tickets, and no one else shall engage in that business.’ And it has a right to say to all other persons:
Again, it is contended that the effect of this statute is to deprive a party-of a property right without due process of law. The courts generally, if not entirely, agree in holding, as to the character of a passage ticket, with the dissenting judges, Bartlett and Martin, in Tyroler’s Case, 157 N. Y., 116, 51 N. E., 1006, 68 Am. St. Rep., 763, that it is not property, nor is it to be treated as property in its general sense, but as a simple token of the purchaser’s right to be transported on the railroad between the points named on the ticket, and when it has served its purpose to be delivered to the carrier issuing it. This was the view taken in O’Rourke’s Case, 103 Tenn., 124, 52 S. W., 872, 46 L. R. A., 614, 76 Am. St. Rep., 639. So it is the courts have held that the sale of
It is also insisted that, inasmuch as the ticket, for dealing in which the indictment in this case was found, was one issued for passage from Tennessee into another State, the effect of the application of the statute to this case was an unwarranted interference with interstate
We think this view is eminently sound, and certainly it is abundantly supported by authority.
Again, it is contended the statute must fall because of vagueness, and therein is a fatal omission in fixing a “standard schedule rate” in reference to which nontransferable signature' tickets are sold. The argument is that one jury might find one rate to' be the standard schedule rate, while another might find another rate. If this be true, then the statute must fall, for the authorities all seem to hold that, where the statute in question is so indeterminate as to leave juries with their varying opinions to settle the standard, the statute will
But is the expression “standard schedule rate” vague and uncertain, so as to fall under the condemnation of these cases? We think not. So far as interstate commerce travel is concerned, section 6 of the interstate commerce act provides for it by requiring every common carrier, subject to the provisions of the act, to print and keep open to public inspection schedules showing the rates, fares, and charges for the transportation of pas
After thus providing for the establishing and publication of rates, etc., and against all manner of discrimination in reference thereto’, the last section of the act is as follows: “. . . Nothing in this act shall prevent
So we think there is no uncertainty in fact in the matter of interstate travel as to what is, at any particular time, the standard schedule rate for the sale of passenger tickets, and when chapter 410 speaks of tickets being sold below that rate it refers to the standard established and made public under this act of congress.
Ror is there any more uncertainty as to intrapas-senger rates. So far as railroads are concerned, these are provided for in chapter 10, p. 121, of our Session Acts of 1897. By section 22 of that act it is made the duty of all persons or corporations who shall own or operate a railroad in this State, within thirty days after the passage of the act, to furnish to the railroad commission created by the act its tariff of charges of every kind for examination and correction, and when corrected the commission was required to append a certificate of approval to this tariff of charges, and it was then made the duty of the railroad company, or its operators, to post at each of its depots in conspicuous places the rates, schedules, and tariffs for transportation of passengers and of freight.
But it is earnestly argued, though not made the subject of an assignment of error, that, whatever may have been the purpose of the draftsman of this act, yet its effect is to make it unlawful in every one, save the authorized agents of common carriers, to be engaged as ticket brokers, and possible to continue the ticket brok
As will be seen, this construction is reached largely from the use of the phrase “issued and sold” in the past tense. In other words, the construction insisted upon is arrived at by adhering to the true grammatical effect of those words, making them, have reference to a past transaction.
This, however, is to single out a single phrase and give it such controlling force as to warp the entire act, when
It will be found that this court has had occasion frequently to apply this rule of construction. One phase of the rule has been used for the purpose of saving statutes, the constitutionality of which was called in question. In such cases it has been held that where a statute will admit of two constructions, one that would make the statute void on account of conflict with the constitution, and another that would render it valid, the latter will be adopted, even though the former at first view be the more natural interpretation of the language used. Cole Mfg. Co. v. Falls, 90 Tenn., 469, 16 S. W., 1045; State, ex rel., v. Schlitz Brewing Co., 104 Tenn., 715, 59 S. W., 1033, 78 Am. St. Rep., 941.
We agree with the counsel that there is no doubt that the legislature intended by this act to destroy the business of ticket brokers, and to so construe it as to make it possible for common carriers, or their authorized agents, to engage in this business, would do violence to this intention. We do not think that there is any rule which demands a construction leading to this result. ' To the contrary, we are satisfied, giving the terms used a natural construction, that the act means, in the words of the
We are satisfied, after considering the many objections urged to this act, that no one of them is well taken. We think it is in no respect violative of the State or federal constitutions. It follows, therefore, that the judgment of the lower court is affirmed.
