State v. McKinney

29 Mont. 375 | Mont. | 1904

ME. COMMISSIONER CLAYBEEG

prepared tbe opinion for tbe court.

Appeal from final judgment.- A complaint was filed against defendant in a justice court, alleging that be “willfully and unlawfully conveyed milk and cream in a vehicle for tbe purpose of selling tbe same, and did sell tbe same, in tbe county of Lewis and Clarke without first procuring a license as provided by law.” Upon this complaint a warrant was issued. Tbe defendant was arrested, and demurred to tbe complaint. Tbe demurrer was overruled, and defendant entered a plea of not guilty. Tbe case was tried, and resulted in a judgment against defendant-. On appeal to tbe district court tbe case was again tried, by tbe court sitting without a jury — 'jury trial having been expressly waived — and judgment passed against tbe defendant, from which this appeal is taken.

The prosecution was conducted under Chapter 120, page 226, of the Laws of 1903, entitled “An Act to- create tbe office of meat and milk inspector for tbe state of Montana, and prescribing their powers and duties and compensation therefor.” The-only part of this Act which is brought into controversy by this appeal is Section 15 thereof, which the attorneys for the appellant urge is unconstitutional, on the four following grounds: (1) Because the license provided in Section 15 is a tax, which can only be collected by the county treasurer, and not by the inspector; (2) because the law acts unequally, and the classifications are unjust and unreasonable; (3) because the law allows exemptions of a part of a class from1 payment of any fees; (4) because the title of the bill is defective.

Section 15 of this Act, which is attacked, is in the following language:

“Any person, persons, or corporation, in counties in which a meat and milk inspector is appointed, who conveys milk or cream in vehicles of any character whatsoever, for the purpose of selling it in such counties, shall annually, before the 1st day of June, be licensed by the meat and milk inspector of said county to sell milk and cream, within the limits thereof, and shall pay to' such inspector for each and every vehicle of whatsoever character used in the sale or delivery of such milk or cream or dairy product, the sum of twelve dollars ($12.00) per annum, payable quarterly in advance, which sum shall be paid into the state treasury by such inspector, quarterly, as received, to be turned into the general fund, and receipted therefor by said treasurer to said inspector.

“Subd. 1. Licenses shall be issued only in the name of the owner of the vehicles, carriages or other conveyances.

“Subd. 2. Such license shall, for the purposes of this Act, be conclusive evidence of ownership, and shall not be assigned or transferred.

“Subd. 3. Each license shall contain the number thereof, the name, the residence, the place of business, the number of vehicle used by the person, persons, or corporation, and the name of every driver or other person employed by the owner or owners in carrying, conveying or selling milk or cream.

“Subd. 4. Each person, persons, or corporations shall, before engaging in the sale of milk or cream, or dairy products of any character whatsoever, cause his name and number of his license to be placed legibly on each outer side of all carriages or vehicles or conveyance of whatsoever character used by him in the conveyance for sale of milk or cream.

“Subd. 5. Every person or persons, company or corporation, before selling milk or cream, or offering the same for sale in a store, booth, stand, market place, depot, or any place whatsoever, in a county in which a meat and milk inspector is ap^ pointed, shall register in the books of such inspector his or her name, or the name of the company or corporation, and proposed place of sale.

“Subd. 6. Nothing in Section 15, with the exception of subdivision five, shall be construed to apply to dairies milking five cows, or less.”

In considering the questions raised on this appeal, we shall not follow the order in which they are treated in the briefs, but shall first take up' the last one argmed, viz., is the Act in contravention of Section 23, Article V, of the Constitution ? This section is as follows: “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 so expressed.” It is insisted that the imposition of a license fee upon persons selling milk, or the collection thereof, is not “clearly (or at all) expressed” in the title of the Act, and therefore the Act, to this extent, is unconstitutional and void.

For a clear understanding of the question under consideration, it seems important to announce a few general legal principles viz.:

First. The purposes of this constitutional provision are to prevent the legislature from the enactment of laws surreptitiously ; to prevent “logrolling” legislation; to' give to the people general notice of the character of proposed legislation, so they may not be misled; to give all interested an opportunity to appear before committees of tbe legislature and be beard upon tbe advisability of tbe proposed legislation; to advise members of tbe legislature of tbe character of the proposed legislation, and give each an opportunity to intelligently watch the course of the proposed Bill; to guard against fraud in legislation, and against false and deceptive titles. These purposes have been so plainly announced by this court in numerous opinions that a statement of tbe rule and a citation of oases would seem sufficient. (State v. Brown, 29 Mont. 179, 74 Pac. 366; Western Ranches v. Custer County, 28 Mont. 278, 72 Pac. 659; State v. Courtney, 27 Mont. 378, 71 Pac. 308; State v. Anaconda C. M. Co., 23 Mont. 498, 59 Pac. 854; Jobb v. Meagher County, 20 Mont. 424, 51 Pac. 1034; State v. Mitchell, 17 Mont. 67, 42 Pac. 100.)

Second. While all tbe provisions of tbe constitution are “mandatory and prohibitory” (Art. Ill, Sec. 29), yet tbe courts, bearing in mind that tbe legislature is a co-ordinate branch of' tbe government, and that its action, if fair, should be sustained, have given this section of tbe constitution a liberal construction, so as to not interfere with or impede proper legislative functions. (Western Ranches v. Custer County, 28 Mont. 278, 72 Pac. 659; State v. Courtney, 27 Mont. 378, 71 Pac. 308; State ex rel. Olsen v. Board of Control, 85 Minn. 165, 88 N. W. 533; State ex rel. Green v. Power, 63 Neb. 496, 88 N. W. 769; Ballentyne v. Wickersham, 75 Ala. 533; Van Horn v. State, 46 Neb. 62, 64 N. W. 365; Lien v. Board of County Com'rs, 80 Minn. 58, 82 N. W. 1094.)

Third. Tbe legislature is tbe judge, to a great extent, at least, of tbe title which it will prefix to a Pill; and tbe court has no right to bold a title void because, in its opinion, a better one might have been used. (State ex rel. Olsen v. Board of Control, 85 Minn. 165, 88 N. W. 533; State ex rel. Green v. Power, 63 Neb. 496, 88 N. W. 769; State ex rel. Churchill v. Bemis, 45 Neb. 724, 64 N. W. 348.)

Fourth. Tbe title is generally sufficient if tbe body of tbe Act treats only, directly or indirectly, of tbe subjects mentioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the Bill, as mentioned in the title. Details need not be mentioned. The title need not contain a complete list of all matters covered by the Act. (Park v. Modern Woodmen, 181 Ill. 214, 54 N. E. 932; State ex rel. Graham v. Tibbetts, 52 Neb. 228, 71 N. W. 990, 66 Am. St. Rep. 492; City of Newark v. Mt. Pleasant Cemetery Co., 58 N. J. Law, 168, 33 Atl. 396; Barksdale v. City of Laurens, 58 S. C. 413, 36 S. E. 893; Prison Association v. Ashby, 93 Va. 667, 26 S. E. 893; Weber v. Commonwealth (Ky.), 72 S. W. 30.)

Fifth. If the court, after an application of all these principles, is’still in doubt as to the constitutionality of the Bill, it should sustain the Act. (State v. Camp Sing, 18 Mont. 128, 44 Pac. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; Cooley’s Const. Lim. 182; State v. Clancy, 20 Mont. 498, 52 Pac. 267.)

The purpose of the Act was the very laudable on© of providing for the inspection of meat and dairy products sold by the producers to the consumers within the. state, and h> prevent a sale of any of the same, except such as might, after inspection, be found to' be entirely healthful. The Act provides for the inspection of fresh meats, fish and poultry; and, after providing the necessary means for that purpose, it takes up the inspection of dairies and dairy products.

Section 9 makes it the duty of the inspector to inspect each dairy supplying milk to the public in his county for human’ consumption not less than once in every month during the calendar year, and provides that he shall, every ninety days, issue to each person or persons or corporation supplying milk a certificate of health, which shall include a certificate of the sanitary condition of the dairy every ninety days.

Section 10 provides that “it shall be unlawful * * * to feed unwholesome food of whatsoever character to his dairy cows, and that each dairyman supplying milk to the public must have for each cow, his certificate of health, including the tuberculum test made by said inspector, stating that each cow is free from tuberculosis or consumption, or any other infectious disease whatsoever.”

Section 11 provides that it is the duty of the inspector to prohibit any one from selling milt whenever, in his observation, proper cleanliness of utensils used in the accumulation, handling, or marketing of the milk is not up to the proper standard, “until such time as proper methods of cleanliness and precautions are used in the handling of said milk.”

Section 12 provides that all persons supplying milk “shall keep their barns or stables free from filth or manure or other substances likely to harbor or favor the growth of disease-producing germs therein, or about their stables or barns likely to be carried in, or to contaminate such milk or dairy product.”

Section 13 provides that any resident of the state, to whose knowledge or observation comes the fact that any dairyman is failing to observe the provisions of this section, shall notify the inspector, who shall at once visit the premises indicated; and, if he finds the complaint true, he shall prohibit the selling. of the product of the dairy, “and file an information against the dairyman.”

Section 14 requires that such inspector shall keepi in his book of records the names and places of business of all persons engaged in the sale of milk and cream within the bounty, and gives the inspector power to enter all places in which cream or dairy products are stored or offered for sale, and all vehicles used for the conveyance of milk or cream, and take samples therefrom for analysis.

Then comes the disputed Section 15, which we have already quoted at length in the opinion.

Section 16 provides the conditions under which one dealing in milk or cream shall be deemed guilty of misdemeanor.

Sections 1Y to 20 refer to the standard of the different classes of milk and cream. The rest of the Act is unimportant in the consideration of the questions involved in this case.

In our judgment, the decisions of this court in the cases of State v. Bernheim, 19 Mont. 512, 49 Pac. 441, and Snook v. Clark, 20 Mont. 230, 50 Pac. 718, are conclusive against tbe contention of counsel for appellant. In tbe Bernheim Case, tbe title of tbe Act- was “An Act to regulate tbe sale and redemption of transportation tickets of common carriers.” Tbe Act, in its body, made it unlawful for any person not in possession of a certificate or license provided for in another part of tbe Act to> sell tickets. It also provided a penalty for tbe violation of tbat portion of tbe Act. It was contended tbat tbe penalty part of tbe statute was not within the title. Yet tbis court said: • “Experience amply demonstrates tbat to regulate a particular business by law, and put a statute regulating it into practical and effective operation, there must be punishments prescribed and imposed upon those who violate its commands. But such penalties need not be included in tbe title, for they are but ‘ends and means necessary or convenient for tbe accomplishment of tbe general object.’ ”

In tbe case of Snook v. Clark tbe title of tbe Act was “An Act requiring railroad companies to, pay for damages to> stock.” In tbe body of tbe Act it was provided tbat railroad companies should fence their tracks. Counsel for tbe railroad company contended tbat, tbe title of tbe Act being silent as to fences, tbe law was inoperative, but tbe supreme court says: “Tbis question was passed upon by this court in State v. Bernheim, 19 Mont. 512, 49 Pac. 441.”

Now, tbe appointment of inspectors, and tbe placing upon such inspectors certain duties and labors, in order to make tbe Act practical and effective in its operation, requires tbat compensation be provided for tbe performance of these duties; and we must conclude, under tbe above authorities, tbat, even if tbe title of tbe Act was silent as to tbe intention of tbe legislature to provide such compensation, tbe body of tbe Act might have contained provisions for tbat purpose, as such provisions are but “ends and means necessary or convenient for tbe accomplishment of tbe general object.” Tbe purpose of tbe Act is clearly apparent, viz., to regulate tbe inspection and sales of meat and dairy products, and to, provide a fund to reimburse tlie state for its expenditures in and about tbe carrying of tbe regulations into effect. Tbe title of tbe Act is general. Its body may contain any provisions necessary to carry the purpose of tbe Act into effect. Of what use would be an inspector, unless be might inspect something ? Tbe Act, therefore, properly determines and specifically provides for tbe inspection of certain articles intended to be covered by the Act. The inspector could not be required to perform tbe labors of inspection unless compensated. Tbe legislature, in exercising tbe police power vested in it, bad tlie right to impose tbe cost of inspection, and all the necessary expenses of carrying tbe regulations into effect, upon tbe persons controlling the products to be inspected. It might provide that tbe state should become primarily liable for tbe payment of this cost, and in tlie same Act further provide for reimbursement to tbe state, in whole or in part, from tbe same source upon which it could have imposed tbe cost in tbe first instance. Can it be said that tbe title does not notify every person that the legislature intends to enact a law covering all these items ? Tbe title announces that tbe legislature intends to enact a law “creating tbe office of meat and milk inspector, and prescribing bis duties, powers and compensation.” This, in our opinion, gives notice to every one of what tbe legislature intended to accomplish. If tbe legislature bad power to accomplish this end by different methods, all persons were charged with knowledge that it might, for that purpose, exercise any method within its power. If tbe law allows tbe legislature to exercise tbe power above mentioned, every person within tbe state is charged with tbe knowledge of that law, and therefore with notice that tbe legislature might exercise tbe power by any authorized method. Every provision of the Act is germane to tbe announcement made in tbe title, and is unquestionably for tbe purpose of enabling tbe regulations prescribed in tbe Act to be carried into effect. All tbe general objects of tbe Act are expressed in tbe title.

True, tbe provisions of tbe Act relative to' tbe license inr-posed upon meats and upon dairy products are different, but tbe duties of tbe inspector as to each of these classes are different. Much more extensive duties are imposed upon tbe inspector as to' dairy products than as to meat. Tbe legislature might well have concluded that tbe provisions for tbe imposition of a license fee on meat were not applicable to tbe imposition of license fees upon dairy products. Tbe license fee imposed upon persons selling meats is provided by Section 4 of tbe Act, and is designated “an inspection license,” wbile tbe license imposed upon dealers in dairy products is provided by Section 15, and is designated as “license to sell milk and cream.” Notwithstanding this difference, it is plainly apparent that tbe license fees imposed upon both classes were, for tbe'purpose of reimbursing, tbe state for its outlay in carrying tbe Act into effect. Tbe license fee in such case simply ¿mounts to an inspection fee.

The Supreme Court of Minnesota (State ex rel. Olsen v. Board of Control, 85 Minn. 165,) has so thoroughly discussed tbe principles which must control a court in passing upon tbe constitutionality of a statute where objections are made to its title that we feel constrained to quote at length from its decision: “Every reasonable presumption should be in favor of tbe title, which should be more liberally construed than tbe body of tbe law, giving to tbe general words in such title paramount weight. It is not essential that tbe best or even an accurate title be employed, if it be suggestive in any sense of tbe legislative purpose. Tbe remedy to be secured, and mischief avoided, is tbe best test of a sufficient title, which is to prevent it from being made a cloak or artifice to> distract attention from tbe substance of tbe act itself. Tbe title, if objected to, should be aided, if possible, by resort to tbe body of tbe act, to show that it was not intended by such title to mislead tbe legislature or tbe people, nor distract their attention from its distinctive measures. Throughout all tbe decisions it will be found that it is a regard for tbe law itself, rather than anjy puerile consideration'for tbe title, which is made tbe essential object of judicial anxiety. A review of the cases where this court has set aside statutes because in violation of Section 27, Article 4 [Constitution of Minnesota], will sbow tbat tbe act was in every respect, to adopt tbe language of Justice Elandrau in Board of Supervisors v. Heenan, supra [2 Minn. 330; Gil. 281], entirely foreign to tbe object ‘expressed in tbe title;’ thus furnishing tbe evidence of sucb a fraud in securing its enactment tbat tbe law ‘would never bave received tbe sanction of tbe legislature, bad tbe members known tbe contents of tbe act.’ No better test, consistent with every subsequent decision on tbis subject, can be made than by a correct answer to tbe question: Is this title in every respect ‘so foreign to the purpose of the act, or some integral part of it, tbat it gives no intimation thereof V It may seem, from a cursory glance at these liberal views which bave been adopted to save statutes when attacked upon tbe ground of defective titles tbat little is left of inherent vitality in tbe constitutional limitation involved; but tbat this is only a cursory view must be apparent upon tbe reflection that the constitutional limitation was solely to prevent fraud and deception, when determinable from tbe evidence found in tbe act and its title read together, for obviously no other evidence is open to' tbe courts. Tbe constitutional provision sounded a note of warning tbat has generally protected the people from legislative juggles, while tbe liberal interpretation since given by tbis court has- saved many wholesome laws tbat otherwise would bave been defeated by a narrow view of its purpose. Legislators may not bave become absolutely perfect, and it may be tbat fraud will hereafter finesse into an act a ‘woodchuck’ which will be so apparent on judicial review as to require tbe court to nullify a result which never expressed tbe real legislative purpose. When sucb occasion does arise, tbis provision of our constitution will, we believe, be found to retain its pristine vigor, with plenary power to prevent tbe consummation of the infamy. In the meantime it stands forth in tbe organic law a danger signal to protect tbe people from tbe mischief tbat called it into being.” We also' refer to the very extensive and elaborate monographic notes found in 64 Am. St. Rep. 79 et seq., and 79 Am. St. Rep. 456 et seq.

Tested by tbe application of tbe above rules, we cannot say that the Act is unconstitutional because of the • alleged defect in the title.

2. Is the'license fee, provided for, a-tax? We are clearly of the opinion that it is not. Counsel for the appellant rely upon State ex rel. Sam Toi v. French, 17 Mont. 54, 41 Pac. 1078, 30 L. R. A. 415, as conclusive that it is a tas. A careful examination of that case discloses that the court only decided that a license fee imposed upon laundries was not a tax, as falling within the equality and irniformity provisions of the constitution. The court says: “The particular distinctions as to when a license fee is a tax, and when it is not, we shall not discuss, further than to give the reasons for our opinion that this license fee under consideration is not a tax, as falling within the equality and uniformity provisions of the Constitution.” (See, generally, State v. Camp Sing, 18 Mont. 128, 44 Pac. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; Littlefield v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697; State v. Bixman, 162 M0. 1, 62 S. W. 828; Patapsco Guano Co. v. North Carolina Board of Agr., 171 U. S. 345, 18 Sup. Ct. 862, 43 L. Ed. 191; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558; Willis v. Standard Oil Co., 50 Minn. 290, 52 N. W. 652.)

In Littlefield v. State, supra, the court says: “But by Taxation,’ as the term is here employed, is meant the providing of revenue for the ordinary expenses of state or municipal government. It does not follow, therefore, that an ordinance will be held void simply because it provides for a fund to■ be derived from license fees. Such a measure will be upheld by the courts whenever it appears to have been designed to promote the welfare of the public, and the revenue derived therefrom is not disproportionate to the cost of its enforcement and the. regulation of the business to which it applies.”

In Willis v. Standard Oil Co., supra, the court says: “That the state may make any business requiring police regulation pay the expense of regulating and controlling it, and that this may be done by exacting fees, license fees, ot inspection fees from those engaged in the business, no one disputes. On its face, this law is a bona fide police regulation — a proper inspection law' — and the fees oare in good faith exacted to reimburse the state in the expense of inspection and enforcing observance of the law.”

It will be noticed that, by Section 2 of the Act, the annual salary of the meat and milk inspector is to be paid out of the general state fund monthly, and that the license authorized to be collected by the inspector under Section 15 shall be paid into the state treasury quarterly, to be turned into the general fund. It makes no difference that the license fees, when collected, are required to be paid into the state treasury. (State v. Bixman, 162 Mo. 1, 62 S. W. 828; Willis v. Standard Oil Co., 50 Minn. 290, 52 N. W. 652.) Their collection and deposit is clearly for the purpose of the reimbursement of the state for moneys expended in carrying the Act into effect, and not to obtain revenue for general governmental purposes.

It being a license, and not a tax, the legislature might determine by what agency the collection should be made; and the case of Mutual Life Ins. Co. v. Martien 27 Mont. 437, 71 Pac. 470, has no application.

3. Is the classification for the purpose of license unreasonable ? We think not. Counsel for appellant seem to have fallen into error as to the basis of this classification. They say that it is based upon the number of vehicles employed, and each vehicle is taxed. The number of vehicles employed has nothing to do with the classification. It is based solely upon the number of cows milked. The license fee is not imposed upon the vehicle, but upon the right to do- business with a vehicle by an owner thereof, who milks over five cows. The number of vehicles is only important in determining the amount of the license fee imposed.' Counsel frankly stated in his oral argument that he would not contend that a classification based upon the number of cows milked would be unauthorized. The question of classification of objects upon which a license fee is imposed is purely legislative, and, in absence of abuse, will not be interfered with by the co-urt. (See, generally, St. Louis v. Weber, 44 Mo. 547; State v. Broadbelt, 89 Md. 565, 43 Atl. 771, 45 L. R. A. 437, 73 Am. St. Rep. 201; Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 S. E. 497, 35 L. R. A. 497.)

4. The consideration of the question of exemptions, as raised by the brief, has been fully covered in the. treatment of classification of subjects by the Act. It is a self-evident proposition that, whe.h the legislature designates certain subjects upon which license fees are imposed, all subjects not named are excluded fromi the operation of the Act. The exercise of the power of designation rests in the legislature, and will not be interfered with by the court unless clearly beyond constitutional limits of the power given to the legislature.

This disposes of all the questions raised or argued upon this appeal. The sufficiency of the complaint upon which the prosecution is based was not even referred to, and therefore was not considered or determined by the court.

We recommend that the judgment be affirmed.

Pee Cueiam.

For the reasons stated in the foregoing opinion, the judgment is affirmed.

Case Details

Case Name: State v. McKinney

Court Name: Montana Supreme Court

Date Published: Jan 23, 1904

Citation: 29 Mont. 375

Docket Number: No. 2,004

Court Abbreviation: Mont.