State v. Thompson , 2 Kan. 432 ( 1864 )

By the Cmrí,

JKingman, J.

The defendants were indicted in Shawnee County for a violatipnpf the law “ to restrain dram shops and taverns and regulate, the sale of intoxicating liquors.” ■

A motion was made to- quash the indictment on two grounds.

1st. That the indictment does not charge that the offense was not committed within the limits of an incorporated city'containing one thousand inhabitants.

2d. The statute on which'the indictment is founded, is unconstitutional.

The motion was sustained and the indictment quashed. The State brings the case to this Court for revision.

The first of the causes assigned as grounds for quashing the indictment, must be held insufficient.

The law on.this point is plain and is well stated in Archibald’s Criminal Practice and- Pleading, page 118, as follows: “If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant or the subjóct of 'the indictment does not arise within the. exception. If, however, the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is in that case matter of defense for the other party and need not be negatived in the pleading.”

The exception contained in Section 15, page 489, Comp. Laws, as to incorporated cities is evidently not one of those necessary to be negatived in the indictment under the rules above cited. We do not feel inclined to sanction rules of pleading more stringent than those in use under the common law practice.

The second ground is, that the law on which it is founded is in conflict with the first clause of Sec. 17, Art. 2d of the Constitution, prescribing “ that all laws of a general nature shall have a uniform operation throughout the State.”

That this clause of the section has the effect to abrogate all laws passed by the Territorial Legislature of a general nature to which there were exceptions.

The law is admitted to be a general law, and by its terms has not a uniform operation throughout the State, its provisions not being in force in certain parts of the State, which are excepted from its operations.

A literal construction of this clause of the constitution would, instead of abrogating a law passed before the constitution took effect, extend its provisions to the excepted portions of the State. It in no way, by its terms can be held to repeal any law. It only declares that a general law shall have a uniform operation. But this construction,, although a literal one, of the clause taken by itself is too absurd and too disastrous in its consequences to be worthy of consideration.

This clause is but part of one of twenty-eight sections of which all the others have direct reference to future legislative proceedings under the constitution. This is also, true of the latter part of this section seventeen, which provides that “in all cases where a general law can be made applicable no special law shall be enacted. The whole article is devoted to prescribing rules for and defining the duties and powers of legislative bodies under the constitution, and it is not conceivable that this part of a section only was intended to have the retro-active effect of abrogating so large a portion of our laws as would be done by the construction given to it by the Court below.

In Ohio in the case of Abyer v. The State, 10 Ohio S., 589, the Supreme Court held that a clause in the constitution of that State, identical with the one under consideration, did not act on the laws already passed, but only on those enacted after the adoption of the constitution. That decision had been made before our constitution was adopted and may well have been considered by the framers of that instrument as deciding the construction of the language, in the section. See also, 8 Indiana Reports, 258, where the identical point is decided in the same way. We think it clear .that the clause taken in its connection with • the whole article was intended only to apply to laws passed under the constitution, and was not intended to affect the laws already in existence, and that the District Court in ruling otherwise erred.

The judgment of the Court below is reversed and the cause remanded for further proceedings.

All the justices concurring.