State v. Patterson , 146 Ala. 128 ( 1906 )

TYSON, J.

This appeal is prosecuted by the solicitor in behalf of the state from a judgment rendered by the trial court sustaining one assignment of a demurrer to the indictment upon the ground that the statutes prescribing the offense for which the indictment was preferred is unconstitutional. That such was the ruling of the court, resulting in the quashing of the indictment and the discharge of the defendant, clearly appears from the judgment entine The, statute allowing the appeal is in this language: “in all criminal cases when the act of the legislature under which the indictment or information is preferred, is held to he unconstitutional, tli-p. solicitor may take an' appeal in behalf of the stab to the supreme court which appeal shall be certified as other appeals in criminal cases,” etc. But it is insisted that there was another ground of the demurrer also sustained by the court to the indictment, which is good, independent of any constitutional question. From this it. is argued that the motion to dismiss the appeal should be granted. Without committing ourselves to the soundness of this contention, it must fail, for the reason that the ground of demurrer, which is general, is not well taken unless the statutes under which the indictment is preferred are unconstitutional. The objection urged assails the sufficiency of the allegations of the indictment upon the ground that it charges no offense, in that it does not charge the defendant with knowingly allowing his hogs to run at large, and does not describe the territory within which the hogs were permitted to run. It is true the statutes (Acts 1890-91, p. 744; Acts 1896-97, p. 648; Acts 1900-03, p. 923) do prescribe and limit the territorial area in Madison county Avitliin which the owners of hogs are prohibited from knoAvingly allowing them to run at large and punish the offense, Avlien committed, by fine. In other words, under these statutes, the essential ingredient of the offense is that the OAvner of the hogs must not knowingly alloAv them in run at large in the territory named in the statutes, and undoubtedly to sustain a conviction this would have tu he proven. The iudictment charges that defendant “unlaAvfully allowed hogs to run at large in a district or territory in Madison county, Ala.., in Avliicli by law hogs axe prohibited from running at large,” and is clearly not objectionable on the grounds urged. For if he did not knoAvingly alloAv his hogs to run at large in violation of the statutes, as alleged, the allegation that he unlawfully did so- would not he proven. On the other hand, if he knoAvingly permitted it, his act in doing so AA’ould he unlawful. The motion to dismiss the appeal is denied.

No attack is made upon tbe constitutionality of the act approved February 10, 1891 (Acts 1890-91, p. 774), and indeed none could successfully be. And it might be conceded for tlie purpose of the case that the act of February 9, 1897 (Acts 1896-97, p. 648), Avhicli is amendatory of it, is subject to tbe constitutional objections urged against it, and yet the indictment would not he subject to lire ground of demurrer sustained by the court. For clearly if the latter act is void because unconstitutional, this does not affect the A-alidity of the former, and proof of the offense alleged in the indictment would entitle the state to a conviction under it. While Ave recognize the rule that prevails in this court never to determine a constitutional question unless necessary to a decision of the cause in hand, yet, in view of the fact that the indictment is sufficient to put the defendant upon trial and the testimony may establish that he knowingly allowed his hogs to run at large within the prohibited territorial area defined by the acts of 1897 and 1901, we deem it advisable to pass upon the constitutional ohjections taken to the act of 1887. The filst is that it is violative of § 2 of Art. 4 of the constitution of 1875 which provides, among other things, that “no law shall he revised, amended or the previsions thereof extended or conferred by reference to its title only,' but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published.” The title of the act is “to amend section one of an act. to prevent hogs from running at large in Madison county, approved February 1G,’3891.” The body of the act sets out the amendment made in full and at length, but does not set out or recite the old law as it stood before the amendment. This is not necessary. The objection, which seems to rest on this point, is without merit. — Montgomery v. State, 107 Ala. 372, 18 South. 157.

The next objection .urged is that it is violative of the same constitutional provision which requires that “each law shall contain hut one subject which shall be clearly expressed in its title.” It is argued that according to the title it is an act to amend section 1 of an act to prevent hogs from running at large “in Madison county,” whereas the body of the section reads: “That section one of an act to prevent hogs from running at large in certain portón of Madison county be amended,” etc.; therefore, the title is deceptive ill that a legislator hearing the. title read would conclude, that there was already in force an act forbidding hogs to run .at. large in the entire county, whereas, in fact, the former act applied only to certain parts of the county. We think this is too narrow and technical. It must be asumed that a legislator, called upon to pass this act, knew the extent of the operation of the former. And certainly there is nothing in the title to mislead him to conclude that he was voting for a bill covering the same or less area than that defined in the act of 1891. He. was put upon notice that the bill might enlarge the territorial area even to the extent of including that of the entire county, which was done.

Reversed and remanded.

Weakley, C. J., and Simpson and Anderson, JJ.. concur.