Sovereign v. State

| Neb. | Jul 15, 1878

Maxwell, <T.

The plaintiff in error shot a hawk in Lancaster county on the twenty-first day of June, 1877. On the same day he was arrested for the offense, and pleaded guilty to the charge, and was fined five dollars and costs, and to be committed to the county jail until the same were paid. He made application to the district court for his discharge upon habeas corpus. The courtheldthe fine and imprisonment lawful, and remanded the prisoner. The cause is brought into this court by petition in error.

Section one of the act approved February 19,1877, “ to prohibit the taking, wounding, or killing ot wild birds of any kind, at any time, within the state of Nebraska, and providing penalties for the violation of the act,” provides: “That from and after the first day of June, A.D. 1877, it shall be unlawful for any person to take, wound, or kill any wild bird within the state at any season of the year, or to take or destroy any wild bird’s eggs or nest at any time. Provided, that this act shall not apply to waterfowls, jacksnipes, sandsnipes, waders, and woodcocks.”

Section 11, Art. Ill, of the constitution provides that: “No law shall be amended unless the new act contains the section, or sections, so amended, and the .section, or sections, so amended, shall be repealed.” The evident object of this provision is to avoid the serious embarrassments which would arise in regard to conflicting rights, claims, and remedies, if statutes, amendatory in their character, could be passed as independent acts, no change being made in the statute amended, except so far as it may be in conflict with the amendatory act. This, if permitted, would introduce endless confusion and uncertainty into the law. To avoid the possibility of such legislation, the people by this constitutional provision have taken from the legislature the power to so amend a statute. The constitutional provision requires that in all cases, the law as amended shall be given in full, with such reference to the old law as will clearly show for what the new law is substituted.

In Smails v. White, 4 Neb., 357" court="Neb." date_filed="1876-01-15" href="https://app.midpage.ai/document/school-district-no-two-v-stough-6642030?utm_source=webapp" opinion_id="6642030">4 Neb., 357, it was held that an act complete m itself may so operate on prior acts as to materially change or modify them, without being within the mischief designed to be remedied by, or repugnant to, the provisions of the constitution. “ But where the act is not complete in itself, but in its effect is simply and clearly amendatory of a former statute, it falls directly within the constitutional inhibition, and is void.”

We adhere to that decision. And the case at bar clearly falls within the rule laid down in that case. The act in question is as clearly amendatory of sections 83, 85, and 86 of the criminal code as if apt words had been used for the express purpose of amending said sections. The act therefore is void. Sections 83, 84, 85, and 86 of the criminal code, as amended in 1875 (Laws, 1875, p. 18), not being repealed by the act óf February, 19, 1877, are still in full force. The judgment of the district court is reversed, and the plaintiff discharged.

Judgment accordingly.