People v. McBride , 234 Ill. 146 ( 1908 )

Mr. Justice Cartwright

delivered the opinion of the court:

John W. McBride, plaintiff in error, obtained a license from the village of Coulterville, in Randolph county, to keep a dram-shop and sell intoxicating liquors therein from April 30, 1907, to May 1, 1908. An election was held in Coulter-ville precinct, which included the village of Coulterville, on November 5, 1907, under the provisions of an act entitled “An act to provide for the creation by popular vote of anti-saloon territory within which the sale of intoxicating liquor and the licensing of such sale shall be prohibited and for the abolition by like means of territory so created,” in force July i, 1907. (Laws of 1907, p. 297.) The vote was in favor of making the precinct anti-saloon territory, and the result of the election was duly declared. On December 7, 1907, the State’s attorney filed in the county court an information containing two counts, charging plaintiff in error with selling intoxicating liquor within said > precinct. Plaintiff in error, demurred to the information and moved to quash it on the ground that said act was in conflict with the constitution and therefore null and void, and in the motion twenty-five specifications were made. The court denied the motion, and the defendant having waived a jury, there was a trial by the court. It was proved that the plaintiff in error, on December 6, 1907, opened his dram-shop and sold a glass of whisky, which was drank there by the purchaser. Plaintiff in error offered in evidence an ordinance of the village of Coulterville providing for the issuing of licenses to keep dram-shops, and his license issued under the ordinance, and also an internal revenue receipt, called a United States stamp for special tax. He testified that at the time the glass of whisky was sold the unearned portion of his license fee had not been re-paid or tendered to him by the board of trustees of the village; that the village of Coulterville contains about two hundred acres and is included in the precinct of Coulterville, which embraces two and one-half townships. He was found guilty by the court and fined $50. The validity of said act was the matter in -dispute, and a writ of error was sued out from this court to bring the record here for review.

The sole question to be determined is whether the act under which plaintiff in error was prosecuted is in conflict with provisions of the constitution, and is thereby rendered null and void. The assignment of errors upon the record includes twenty-five-grounds upon which it is alleged that the act violates the constitution, and the argument in support of the assignment of errors contains eleven main subdivisions, under which there are very numerous sub-headings or specifications, covering all the gradations from important to insignificant and from serious and substantial to shadowy and tenuous. If it should appear that some of them scarcely deserve a place in an opinion of this court, the fact that they are mentioned and discussed results from an effort to cover, in some form, every question that is raised by the learned counsel for plaintiff in error.

The rule of law is, that an investigation like this, concerning the constitutionality of an act of the legislature, begins with the presumption that the act is valid. All doubts or uncertainties arising either from the language of the constitution or the act must be resolved in favor of the validity of the act, and the court will only assume to declare it void in case of a clear conflict with the constitution. The duty of the court is to so construe acts of the legislature as to uphold their constitutionality and validity if it can reasonably be done, and if their construction is doubtful, the doubt will be resolved in favor of the law. People ex rel. v. Thompson, 155 Ill. 451; People v. Hutchinson, 172 id. 486; City of Chicago v. Manhattan Cement Works, 178 id. 372; Arms v. Ayer, 192 id. 601.

Most of the objections to this act relate to matters which did not arise upon the trial of plaintiff in error and concern alleged rights of which he was not deprived in any manner. Among those questions are the propositions that the act creates new criminal offenses of forgery and perjury; that it changes the quantum of evidence necessary to convict, by making a United States special tax stamp prima facie evidence ; that it regulates sales by druggists; that it conflicts with the commerce clause of the Federal constitution, and that it creates debts of municipalities without their consent. Plaintiff in error was not prosecuted for perjury or forgery; the tax stamp or receipt was not offered in evidence against him; he did not sell as a druggist and was not engaged in inter-State commerce. Counsel dispute the validity of various other provisions by which plaintiff in error was not injuriously affected unless such provisions are void and their invalidity renders the whole act void. Courts do not entertain objections to the constitutionality of an act unless the objection is made by one whose rights have been in some way affected, and the plaintiff in error is only entitled to a consideration of most of the questions raised by his counsel so far as they may affect the validity of the act as a whole.

Following the course of the argument of counsel for the plaintiff in error, the first proposition met with is, that the act and the title embrace more than one subject, in violation of the provision of section 13 of article 4 of the constitution that “no act hereafter passed shall embrace more than one subject, and that 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 so expressed.” Counsel say that bringing anti-saloon territory into existence and wiping it out of existence are ideas as wide apart as the poles, and that the title covers these opposite ideas. The objection would properly be made to the body of the act, and not to the title. Plurality of title is not an objection to an act which deals with but one subject. If there is but one subject in the act and the title expresses more than one, the subject expressed in the title and not embraced in the act would be regarded as surplusage. If the subject is not expressed in the title or if the act embraces more than one subject the act will be void, and in this act the creation and abolition of anti-saloon territory is expressed in the title and covered by the body. In deciding the question whether the act embraces more than one subject we are to be governed by certain well established rules. The only purpose of the provision of the constitution is to prevent the joining in one act of incongruous and unrelated matters, and the word “subject” is not synonymous with “provision.” Any number of provisions may be contained in an act, however diverse they may be, so long as they are not inconsistent with or foreign to the general subject and may be considered in furtherance of such subject. The requirement that an act shall embrace but one subject is not intended to hamper the legislature or embarrass honest legislation, but it is intended to prevent incorporating in an act matters not related to the subject of legislation and of which the title gives no hint. An act may.contain many provisions and details for the accomplishment of the legislative purpose, and if they legitimately tend to effectuate that object the act is not contrary to the constitutional provision. (Town of Manchester v. People, 178 Ill. 285; Meul v. People, 198 id. 258.) The constitutional prohibition against more than one subject not being directed against the title but against the act itself, the question now being considered is to be determined by the body of the act, and there is in the act but one general subject. That subject is the determination by the legal voters of a certain district whether the sale of intoxicating liquors shall be prohibited therein. The act merely enables particular communities to determine by popular vote whether sales of liquor may be licensed or not, and if certain territory is made anti-saloon territory, the act also prescribes methods for restoring it to its former condition, so that the question of license shall be left to municipal authorities.

It is next claimed that the provision in question is violated by the creation of two new criminal offenses of which the title gives no hint, and which, aside from the act, would not be crimes. Section 4 of the act provides for filing a petition, with a Verified statement that the signatures are genuine and covering other matters relating to the petitioners, and it provides that whoever, in making the sworn statement, shall knowingly, willfully and corruptly swear falsely shall be deemed guilty of perjury, and whoever forges the signature of any person upon any petition or statement provided for in the act shall be deemed guilty of forgery. These are two of the objections which do not concern the plaintiff in error unless their invalidity would affect the whole act, and the rule is, that if an act embraces some matter not expressed in the title it is unconstitutional and void only as to that part, unless the provisions are so connected together in subject matter, meaning or purpose that it cannot be presumed that the legislature would have passed or the people have voted for the one without the other. The constitutional provision is, that 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 so expressed. If the title of an act fairly indicates the general subject and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, it is a sufficient compliance with the constitutional requirement. The generality or comprehensiveness of the title is no objection, provided the title is not misleading or deceptive and fairly directs the mind to the subject legislated upon. It is not required that the title should be either an abstract, a synopsis or an index of the contents of the act. If such were the case the title would have to be as comprehensive as the act itself, and that is not the object of the constitution. In determining whether a provision is embraced within the title of an act a liberal construction is to be given to the constitution, and unless the act contains matters having no proper connection or relation to the title it will not be void as to such matters. The constitution is obeyed if all the provisions relate to one subject indicated in the title, and are parts of it or incident to it or reasonably connected with it. (Burke v. Monroe County, 77 Ill. 610; People v. Nelson, 133 id. 565; Ritchie v. People, 155 id. 98; Hudnall v. Ham, 172 id. 76.) It is contended that there is some difference in the rule between an act which is submitted to popular vote and one which becomes operative without such a vote, but we can see no reason or foundation for such a distinction. Presumably the same motive which influenced the legislator in voting for the act would influence the elector in voting for it, and a title which would direct the mind of a legislator to the general subject of an act would also fairly direct the mind of the voter to the same subject. The rules stated lead to the conclusion that the act is not void nor the title defective by reason of the provisions respecting perjury and forgery. The sworn statement provided by the act is a part of the machinery for carrying into effect the object of the act and the petition is declared to be a public document. It is a matter .where the law requires an oath, but, whether a false oath would be perjury without this act or not, the provision is only a proper and legitimate safeguard of the election. In election laws generally, it is usual, and has never been regarded as illegal, to prescribe regulations and safeguards of the election and to inflict severe punishments for false oaths, changing ballots, practicing fraud upon electors, or doing other things destructive of the object of the act. It is urged that to declare the forgery a criminal offense is to introduce a new crime, for the reason that the act does not include the intent to defraud or deceive. The answer is, that the term itself embraces a fraudulent intent. It includes the making of a false written instrument for the purpose of fraud and deceit. But if the act does create a new offense the provision is within the general purpose of the act. The legislature and the people who adopt the act would naturally expect to find in the body of an act providing for an election the punishment of offenses such as are customarily included in election laws.

Counsel rely upon the decision in the case of Milne v. People, 224 Ill. 125, as sustaining their position, but they misapprehend the nature of that decision. The title of the act then considered included only the punishment of crimes against children, and therefore indicated nothing except the punishment of existing crimes if committed against children, but in the body of the act the legislature attempted to create a new and hitherto unknown felony of which the title gave no hint.

The next specification is, that this act changes the well established fundamental rule as to the burden of proof and quantum of evidence necessary to a conviction in a criminal case. The act provides that it shall not be necessary to state the kind of liquor sold nor the name of any person to whom it was sold, and counsel say that it does not require a statement that the liquor was intoxicating. In that conclusion they are clearly wrong. Any prosecution under the act would be for selling intoxicating liquor, and it would be necessary to allege such a sale. Under the same head, objection is made to the provision that the issuance of an internal revenue special stamp or receipt by the United States shall be prima facie evidence of the sale of intoxicating liquor by the person to whom it is issued at his place of business where the stamp or receipt is posted. The act provides that intoxicating liquors shall include all distilled, spirituous, vinous, fermented and malt liquors, and it permits a charge of selling intoxicating liquor without specifying the kind. The plaintiff in error was charged in the declaration with selling intoxicating liquor, and it was proved that he sold whisky, so that his rights were not affected in any way by the provision and the stamp or receipt was not offered in evidence against him. He offered it in evidence himself. He raised no question at the trial concerning the information on the ground that it did not specify the kind of liquor sold. In another part of the argument, where his counsel recur to the same provision and object to it as in contravention of section 9 of article 2 of the constitution, as not informing the accused of the nature of the charge against him, they concede that if the provision is invalid it would not be fatal to the whole act. The provision is substantially the same as the one contained in section 14 of the Dra'm-shop act, which has stood' the test for a great many years.. The provision was sustained in Cannady v. People, 17 Ill. 158, Myers v. People, 67 id. 503, and other cases. The provision respecting the stamp or receipt has no tendency to overturn the doctrine of reasonable doubt in criminal cases. The term "prima facie evidence” implies evidence which may be rebutted and overcome, and the provision in qúestion merely establishes a rule of evidence. The.legislature may prescribe that a fact shall be prima facie evidence of a certain other fact if it has a tendency to prove such other fact. The fact upon which the presumption is to rest must have some fair relation to or some natural connection with the fact to be proved, and the existence of the established fact must reasonably tend to raise an inference of the main fact. The accused must also have a fair chance to make his defense and to submit the case to a jury upon all the evidence, which must establish his guilt beyond a reasonable doubt. (Meadowcroft v. People, 163 Ill. 56.) The issuance of an internal revenue special stamp or receipt to a person engaged in business and the posting of the same in his place of business tend to prove that such person is .engaged in the “sale of intoxicating liquor at that place. Prima facie it is issued to enable the holder to engage in the business of selling intoxicating liquor, and when he does engage in business and posts it in his place of business it is a fair inference that liquor is sold at that place. If a particular sale to a particular person should be charged, the stamp or receipt would not have any tendency to prove that the particular sale was made, but if a sale we're proved the document would tend to establish the nature of the thing sold. That question, however, does not concern the plaintiff in error, and, in any event, it would not affect the act as a whole.

It is next urged that the act provides for an election without any notice. It may be conceded that notice is essential to a valid election, but no such question is involved in this case. The act provides for notice, and, after specifying the notice to be given, provides that the failure to give notice shall not affect the validity of the vote. The question whether that provision is valid could only arise upon a failure to give the prescribed notice, and whether such failure would invalidate an election might depend upon the facts of the particular case, such as whether there was a mere irregularity in giving notice, whether the voters all knew of the proposition, and whether the result was affected in any way. That question does not arise on this record and could not affect the whole act.

The next specification is, that the act provides for suspending ordinances for indefinite periods of time and again restoring them without the intervention of any legislative body. The act provides that during the time any territory is anti-saloon territory the operation of ordinancés relating to sales of liquor and dram-shop licenses therein shall be suspended, so far as inconsistent with the act. Counsel do not point out any constitutional provision which is violated, but say that the act in that respect is neither good law nor good sense nor in conformity with republican institutions or principles of self-government. That reflection seems to-question the wisdom of the legislature or the policy of the law, with which we are not concerned.

Next it is said that the act changes the charters of municipalities, overturns and abolishes local self-government, and authorizes the voters outside of municipal limits to dictate the policies of municipalities and to dispose of and control their funds. Municipal corporations are creatures of the legislature, and their powers and privileges may be changed, modified or taken away at any time by general law. The position assumed by counsel is, that the provision is void for want of power in the legislature to enact it and also because it is not contained in the title of the act. It is directly within the general subject of the title, and the only .respect in which it is claimed to be in violation of the constitution is, that it requires a municipality to refund the unearned portion of a license fee received by it. The provision for the return of the unearned portion of the license fee is equitable, but if void it would not affect the rest of the act. It is true that the legislature cannot compel a municipality to incur a debt, (Morgan v. Schusselle, 228 Ill. 106,) but we do not regard this provision as doing that. It simply provides that money in the treasury of the city for which the person who deposited it received no benefit shall be refunded. The constitutional limitation of municipal indebtedness has no application to a case where the municipality has received money for licenses which it ought to refund. If it had such application and the obligation to refund should be regarded as a debt, a city indebted to the limit could not voluntarily return license fees which had been paid in for a license which the party could not use, and no one would attempt to uphold such a doctrine.

The next specification is, that the act gives new and unusual definitions to words and phrases and gives no hint or suggestion of that fact in the title. The act defines certain words and terms used in it and explains their meaning as they are employed in this particular act. No provision of the constitution is pointed out which forbids such definitions and they simply conduce to brevity and avoiding repetitions. Counsel are dissatisfied with the definition given to intoxicating liquors as including all distilled, spirituous, vinous, fermented and malt liquors, because the definition does not inform them how much water might be mingled with such liquors and still leave them intoxicating liquors. The provision is of the same nature as the one in the Dram-shop act, which says that intoxicating liquors shall be deemed to include spirituous, vinous or malt liquors, and we are not advised that any difficulty has arisen in the many years during which that act has been in force in ascertaining its meaning. An argument that a definition should specify how much water, seltzer or other liquid not intoxicating could be put into a mixed drink and keep it within the definition, or how much whisky would be required to constitute a sale of intoxicating liquor, would be entitled to as much consideration as the point made by counsel. They do not offer any good reason why the act should be held invalid on account of their alleged criticism.

The next specification is, that the act provides for regulating the sale of intoxicating liquor by druggists and that the title does not say anything about such regulation. The act provides for creating and abolishing territory in which the sale and licensing of sales shall be prohibited, and it exempts from such prohibition sales of liquor by druggists for certain purposes under certain prescribed conditions. Such sales as are specified do not partake of the nature of the saloon business, and it has always been regarded as proper to exempt such sales either from the requirement of a dram-shop license or from prohibitory laws.

Counsel next say that the act gives persons residing outside of the city or village the right to determine the use of money in such city, and in this they again refer to the refunding of license fees. The voters of a community simply determine that territory shall or shall not be anti-saloon territory and do not make the law. The legislature have made the law that the license fee shall be refunded in anti-saloon territory. The voters do not determine whether the license fee shall be refunded or not, and the point which is made that the subject of refunding is not expressed in the title does not require further attention.

A general assault is made on the title on the ground that it is misleading, incongruous and deceptive. One reason given is, that it apparently provides for abolishing anti-saloon territory by the same means by which the territory was created, while, in fact, in some cases, on account of changes in precincts or districts, the voters can never again vote on the question. We regard this as a misapprehension of the provisions for accomplishing the purpose expressed in the last clause of the title. We do not think of any case where it would be impossible, on account of change of boundaries, to submit the question again to voters of a particular territory by the use of the separate ballot provided for in section 9. Another reason given for charging that the title is misleading and deceptive is, that it uses the words “popular vote” while the act provides that a majority of the legal voters voting upon the proposition shall govern. Counsel concede that a law is not invalid because a majority of those voting on a proposition decide the question, and it ■seems to us an extraordinary proposition that an election at which every elector is entitled to vote should not be regarded as an election by popular vote. It is further argued that the form of the ballot is misleading and deceptive, and that the legislature have been guilty of a studied, inexcusable and altogether diabolical effort to defeat and circumvent the will of the voters by adopting a form of ballot which means the opposite of what the voter would naturally understand. As we understand them, they contend that the average voter will consider that he is voting for or against saloons and that “no” means anti-saloon, while under the form of ballot adopted a vote of “yes” means a vote against saloons. We do not see why that should be so. If the voters desire the district to be anthsaloon territory there seems to be no good reason why they should not understand that “yes” is a vote in favor of that proposition. It is not to be presumed that voters will not know what they are voting about, and the case is not at all like Harvey v. Cook County, 221 Ill. 76, where the ballot was so ambiguous as clearly to mislead voters.

Next it is said that the act violates the provision of section 13 of article 4 of the constitution, that laws shall not be revived or amended by reference to the title only. The act does not purport to amend or revive any law. Its only effect is to withdraw certain specified territory. from the operation of existing laws by which the sale of liquor is licensed, regulated or prohibited, and as no law has been repealed none will be revived by virtue of the act. The act adopts the law as to other elections but prescribes some special regulations for elections under this act. There is no objection to the adoption in an act of the provisions of other laws which are not amended or changed thereby. The act also adds certain conditions to existing laws, under which druggists may make sales in anti-saloon territory for medicinal, mechanical, sacramental and chemical purposes, not to be drank upon the premises, but it makes no change in existing laws in other places. Druggists are exempt from the operation of the act so long as they comply with its terms, but no other law is amended or purports to be amended by the act. It does not amend the Ballot law by the provision that the proposition shall be printed on the ballot below the list of candidates, which applies only to elections under this act.

Another point made by counsel is, that the act violates the inter-State commerce clause of the Federal constitution, and although that question is not involved in this case and any invalidity of the provision would not affect the act, the position of counsel is not tenable. In the section designed to prevent evasion of the act it is provided that the taking of orders or the making of agreements in anti-saloon territory for the sale or delivery of intoxicating liquors shall be held to be an unlawful selling. We are required to interpret the act in such a way as to uphold it rather than in a way which would invalidate it, (People ex rel. v. Hinrichsen, 161 Ill. 223,) and it is always presumed that the legislature did not intend to exceed, and have not, in fact, exceeded, their jurisdiction. (Endlich on Interpretation of Statutes, sec. 171; Stanton v. City of Chicago, 154 Ill. 23.) It is not necessary every time a law is passed that the legislature should specifically state that there is no intent to interfere with inter-State commerce or some other subject of which they have no jurisdiction. The act does not purport to control in any manner the importation of liquor from other States.

It is argued at some length that the act is in violation of the constitution because it is not a general law but a local one. The constitution prohibits special laws in certain enumerated cases and also in all other cases where a general law can be made applicable, but the question whether a general law can be made applicable in any case other than those enumerated is for the legislature and not for the courts. (Owners of Lands v. People, 113 Ill. 296.) Unless some other provision of the constitution is violated, the decision of the legislature whether a general law can be made applicable in any given case is conclusive. It is not contended that this act is local or special in the ordinary sense, but the reason alleged is,' that it is only to be put in operation in particular localities as a result of submitting it to a yote of the people. While counsel say that the act is a local and special one, the real point made is that legislative functions have been delegated to the people. It is the law that legislative functions must be exercised by the legislature alone and cannot be delegated to any other person or body of persons, but the decisions in this State have settled beyond question that the legislature may enact laws which will become operative by a vote of the people of the district to be affected, provided the law contains an entire and perfect declaration of the legislative will, From the very beginning it has been held that the legislature have power to pass a law the operation of which depends upon the happening of a contingency or future event, and that such contingency may be an affirmative vote of the people to be affected by it. (People v. Reynolds, 5 Gilm. 1; People v. Salomon, 51 Ill. 37; Home Ins. Co. v. Swigert, 104 id. 653; People v. Hoffman, 116 id. 587; Rouse v. Thompson, 228 id. 522.) The law must be complete when it leaves the legislature, and require nothing to perfect it except the decision that it shall be operative within a certain district. This act does not purport to deal with the liquor traffic except in anti-saloon territory, and as to that subject it is perfect and complete and not in violation of any. constitutional provision. People v. Knopf, 183 Ill. 410.

The next specification is, that the act is invalid because it varies the punishment for selling liquor in different localities. Under the Dram-shop act the punishment is the same for first and subsequent offenses, while subsequent offenses are punished more severely under this one. The offenses are not identical. The offense in the Dram-shop act is selling in less quantity than one gallon or in any quantity to be drank upon the premises, while the offense punishable under this act consists in selling, bartering or exchanging any intoxicating liquor in any quantity. The act does not deny to a person the equal protection of the laws guaranteed by the fourteenth amendment to the Federal constitution. (Ohio v. Dollison, 194 U. S. 445.) The view of counsel that if one accused of selling liquor in anti-saloon territory should take a change of venue to another township he would escape the larger penalty is a mistake. The change of venue would have no effect whatever on the degree of punishment.

It is next argued that the act deprives dram-shop keepers of their property without due process of law. Licenses to sell liquor are not contracts and create no vested rights. They are merely temporary permits to do what would otherwise be an offense against the law, and the license of plaintiff in error stated on its face that it was subject to all the laws of the State and ordinances of the village which then were or might thereafter be in force. Counsel admit that the license is not property,-—that the law may be changed and the license ended although paid for,—and that in such a case a dram-shop keeper has no vested rights to continue the business by virtue of his license, but they contend that he has vested rights in the property which cannot be used for anything else. To say that a dram-shop keeper, has a right to continue the use of his bar fixtures for the sale of liquor because he can put them to no other use would authorize him to continue the business, and be equivalent to holding that the law could not be changed so as to deprive him of his license or the right to continue the business, and that clearly is not the law. When plaintiff in error provided bar fixtures to carry on the business of selling liquor under a license, subject to all laws then in force or which might thereafter be enacted, he took the risk that the business might be made unlawful.

We have considered every argument or proposition propounded by counsel for plaintiff in error arid have not found anything which renders the act void or the conviction of plaintiff in error erroneous. If any provision, such as the one making a stamp or receipt prima facie evidence or the one which purports to validate an election without notice, should be applied in some other case in such a way as to deprive any party of his legal rights he will not be without remedy. Plaintiff in error has not been injuriously affected by any such provision and he has not been deprived of any constitutional or legal right.

The judgment of the county court is affirmed.

Judgment affirmed.