State v. Brown

29 Mont. 179 | Mont. | 1903

MR COMMISSIONER CALLAWAY

prepared the opinion for the court.

The defendant was found guilty upon a charge of unlawfully shooting and killing a turtle dove, and has appealed from the judgment.

It is contended by his counsel that the complaint upon which the prosecution is based does not state facts sufficient to constitute a public offense, for the reason that the statute making the shooting and killing of a turtle dove a crime is unconstitutional.

In support of this contention it is urged that the statute in question — 'Senate Bill No. 29, approved March 4, 1903 (Sess. Laws 1903, Chapter 58), is void for two reasons:' (1) Because the title of the bill does not comply with the requirements of Section 23, Article'V, of the Constitution; (2) because the legislature failed to comply with certain constitutional provisions relating to the procedure to be observed by it in the enactment of laws, as appears by the journals of the senate and house of representatives.

Section 23, Article V, of the Constitution, reads: “No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any Act which shall not be expressed in the title, such Act shall be void only as to so- much thereof as shall not be soi expressed.”

The title of Senate Bill No. 29, reads as follows: “ ‘An Act to repeal Sections 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143 and 1144, of the Penal Code of the State of Montan#, and to provide further protection to birds; fish, fur bearing animals and game,’ approved March 8, 1897, a® amended by House Bill No. 13, Session of 1901, approved March 14, 1901.”

House Bill No. 13, referred to> has the following title: “An Act to amend an Act entitled An Act to repeal Sections 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143 and 1144 of the Penal Code of the State of Montana, and to provide further protection to birds, fish, fur bearing animals and game.” (Sess. Laws 1901, p. 171.)

It will be observed that that part of the title of! Senate Bill No. 29 which is within quotation marks is couched in the exact language of the title to House Bill No. 13, omitting the first clause thereof, which is. “An Act to amend an Act entitled.” The words “approved March 8, 1897, as amended by House Bill No. 13, Session of 1901, approved March 14, 1901,” as used! in the title of Senate Bill No. 29, seem to be descriptive of some other Act. Furthermore, that part of the title of Senate Bill No-. 29 which is within quotation mjarksi is the exact language of the title of House Bill No.. 123, approved March 8, 1897. (Sess. Laws 1897, p. 249.)

It is apparent from the foregoing that Senate Bill No. 29 lias no title at all. It is simply a quotation, of part of tine title of House Bill No. 13 and all of the title of Iionse Bill' No. 123. Probably some words hare been omitted from the title unde.” which Senate Bill Nov 29 was originally introduced, but this surmise is of no moment, because it is the A!ct as it finally passed the senate and house of representatives and received the approval of the governor which is before us for consideration. If we treat it as an Act to repeal Sfectionsi 1110 to 1144, im elusive, we find it to be an attempt to repeal sections which have not been in existence since the approval of House Bill 123, which dates from March 8, 1897. This could not have been the purpose of Senate Bill No. 29, because it quotes the entire title of House Bill 123, and: gives) its date, following with the words “as amended by House Bill Nov 13, Session, of 1901, approved March 14, 1901.” Byi reference to the body of Senate Bill No. 29, we find it attempts to' amend House Bill No. 13 in many important particulars, and this shows the intent of the legislature. No such intent could have been inferred from the title of the bill. The title did not direct attention truly to the matter which was to be legislated upon. Neither the membe.’s of the legislature nor the people could havei been informed by the title in question that the bill was for the purpose of amending House Bill No. 13.

In Western Ranches v. Custer County, 28 Mont. 278, 72 Pac. 659, it is said: “If the title of an Act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated upon, the object of the provision is satisfied.” It is not satisfied unless the object of the legislation is clearly so expressed.

As is said in State v. Anaconda Copper Mining Co., 23 Mont. 498, 59 Pac. 854, the constitutional provision “is to restrict the legislature to the enactment of laws the objects of which legislators and the public as well may be advised of, to the end that any who are interested, whether as representatives or those represented, may be intelligently watchful of the course of the pending bill. The limitation is likewise designed to prevent legislators and the people from being misled by false or deceptive titles, and to guard against fraud in legislation by way of incorporating into a law provisions concerning which neither legislators nor the public have had any intimation through the title read or published.” And see State v. Courtney, 27 Mont. 378, 71 Pac. 308; Jobb v. Meagher Co., 20 Mont. 424, 51 Pac. 1034; State v. Mitchell, 17 Mont. 67, 42 Pac. 100; Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821.

Defendant’s contention that Senate Bill No. 29 is unconstitutional must therefore be sustained.

According to the complaint defendant killed the turtle dove August 13, 1903. Having determined that Senate Bill No. 29 is void, we must look to House Bill No. 13, to see whether that applies. By inspection of Section 5 of the Act last mentioned we find that it is permissible to kill turtle doves during a period commencing on the 1st day of August and ending on December 15 th.

It follows that the complaint does not state a public offense. This determination renders a discussion of the second point raised by defendant, upon which his counsel has filed a most exhaustive brief, unnecessary.

We are therefore of the opinion that the judgment should be reversed, and the defendant discharged.

Pee CueiaM.

For the reasons given in the foregoing opinion it is ordered that the judgment be reversed and the defendant discharged.

[Rehearing denied December 24, 1903.

Leading cases are marked with a star (*).