State v. Hollinshead

151 P. 710 | Or. | 1915

Mr. Justice Benson

delivered the opinion of the court.

1. Defendant’s first contention is that the indictment does not contain a statement of the facts constituting the offense with sufficient clearness and distinctness as to notify the defendant specifically of the offense for which he is to be tried. We cannot agree with the contention. The indictment very clearly and specifically states that the defendant violated the law “by then and there exposing and exhibiting to the view of a large number of persons, and displaying and publishing, in the aforesaid county and state, a certain advertisement, to wit, a sign, in words and figures as follows, to wit,” and then sets out in full the objectionable matter. This is so clearly sufficient that further comment is unnecessary.

2. The chief contention of defendant is, however, more serious, being the assertion that the statute upon which the prosecution is based is unconstitutional and void. It is first maintained that the act is defective, in that the subject thereof is not fairly expressed in the title, and that the act embraces more than one subject. The constitutional inhibition to which counsel appeals upon this point is as follows:

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title”: Article IY, Section 20.

It must be observed that the title of the original statute as enacted in 1909 reads thus:

“An act to prohibit the advertising of treatment or cure of venereal or other diseases, declaring the same a misdemeanor and prescribing a penalty therefor.”

We think it will be conceded without argument that this title fully covers the scope of the act itself. The title of the amendment reads thus:

‘ ‘An act to amend Section 2095, Lord’s Oregon Laws, relating to advertising to cure sexual diseases.”

In Funk & Wagnall’s New Standard Dictionary the word “sexual” is given as synonymous- with “venereal,” and is so accepted in common usage. This court, in the case of Ex parte Howe, 26 Or. 182 (37 Pac. 536), speaking by Mr. Justice Bean, says:

“Hill’s Annotated Laws is an authorized compilation of the statutes of Oregon, and to refer in the title of a legislative act to the particular section of such compilation sought to be amended is a sufficient statement of the subject for a mere amendatory act, and if the provisions of the amendment could have been included in the original act without violating the Constitution, it is valid.”

It follows that this contention of defendant must fail.

3-5. The next point presented is that the act is unconstitutional and void, in that it is class legislation, and is a violation of the constitutional guaranty of equal protection of the law. This may well be considered in connection with the final proposition that the act is void because it is not within the legitimate scope of the police power of the state and is a violation of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law.

For many years it has been recognized by publicists and legislators that some drastic action is necessary to check certain social evils and to protect youthful and inexperienced humanity, not only from easy access to vicious and immoral practices, but also from the schemes of designing men, who, for the sake of financial profit, would prey upon the calamities of the unfortunate who have sowed the wind and reaped the whirlwind. Further than this, it has been thought that the act of spreading broadcast, by means of advertising, the idea that certain venereal diseases are easily and cheaply cured, is against public policy, in that it has a decided tendency to minimize unduly the disastrous consequences of indulging in dissolute action. These views were evidently the moving principle of our legislators in the passage of the act under discussion. The purpose of the act is clearly in the interest of the public morals.. It is not class legislation, for it applies to all who may be engaged in a like business. Similar legislation has been held valid in other states, upon both contentions. In the case of People v. Kennedy, 176 Mich. 384 (142 N. W. 771), the court, in passing upon a similar statute, says:

“It is the duty of the court to give effect to a legitimate legislative purpose plainly indicated, if it can reasonably be done, and not construe language so as to invalidate an act where the language is fairly susceptible of a construction consistent with validity. The act appears to be a reasonable police regulation.”

Again, in the case of Kennedy v. State Board of Registration, 145 Mich. 241 (108 N. W. 730, 9 Ann. Cas. 125), the plaintiff, a physician, sought to enjoin the defendant from revoking his certificate for having violated a statute which, in part, reads thus :

“And provided further, after the passage of this act, the board may at its discretion revoke the certificate of registration, after due notice and hearing of any registered practitioner who inserts any advertisement in any newspaper, pamphlet, circular, or other written or printed paper, relative to venereal diseases or other matter of any obscene or offensive nature derogatory to good morals.”

This was held to be a valid exercise of police power. In the case of State v. Giantvalley, 123 Minn. 227 (143 N. W. 780), Mr. Justice Bunn, of the Supreme Court of Minnesota, says:

“It is argued that, because defendant was admitted to the bar of Minnesota before the statute was enacted, the law deprived him of a vested right to advertise that he was a specialist in divorce matters, and is therefore unconstitutional. Granting that defendant’s license to practice his profession gave him a right to advertise his proficiency in any branch of it, snch right was subject to regulation. The legislature decided that advertising for divorce business was contrary to public policy, and certainly the decision was justified. Rights of property far more valuable than any right defendant may have had to advertise his calling have been obliged to yield to considerations of public health, safety, and morals. We hold that the statute is valid. ”

We might multiply similar citations, but it is not necessary. We regard the statute in question as a valid exercise of the police power of the state, and the judgment of the trial court is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Burnett concur.