State v. Baum , 33 La. Ann. 981 ( 1881 )

The opinion o£ the Court was delivered by

Poché, J.

This is a prosecution, in the name of the State, and by indictment, for the violation of an ordinance of the police jury of East Baton Rouge, prohibiting the opening on Sundays of places of business for the sale, barter or exchange of intoxicating liquors and all kinds of merchandise.

In a motion to quash the indictment, and in a motion in arrest of judgment, the defendant brings to our consideration numerous defences, but, under the view which we take of the case, we shall notice only the following:

1st. That Act No. 84, approved March 13,1878, under the sanction of which the ordinance of the police jury was framed, was violative of Art. 114 of the Constitution of 1868, then in force, in this, that said act did not express all its objects in its title, which reads as follows:

“ An act to authorize police j.uries to make such regulations as they may deem proper to prohibit or regulate the sale, barter or exchange of intoxicating liquors or merchandise on Sundays.”

After conferring the powers enumerated in the title, the act contains the following provision:

“ Violations of all ordinances, duly passed and promulgated, according to the provisions of this act, shall be considered misdemeanors, and the penalties fixed in said ordinances for violations thereof, shall be enforced by indictment or information in any court of competent jurisdiction.”

The inquiry suggested by the objection is, therefore, which or how many objects are expressed in the' title of the act, and, in the second place, whether more objects are contained in the body of the act than are expressed in its title ?

The language of the title is very plain and unambiguous, and clearly indicates but one object, which is to authorize police juries to make all regulations which they may think proper to regulate or prohibit the sale, barter or exchange of intoxicating liquors or merchandise on Sundays. Nothing in the title indicates in the slightest degree the remotest intention in the law-maker’s mind to provide’for a special or a new mode of enforcing obedience to such ordinances as might be adopted by the several police juries, in the State, under the powers conferred by the act. No one, reading the title of this act, could infer or imagine from its language that the body of the act contained any provision for the prosecution of violators .of the ordinances which, in its title, the act purports to authorize and to sanction, and which may, in the future, be drafted by police juries under its authority.

We take it as an undeniable proposition, that any one, familiar with the peculiar system of our laws in this State, would conclude, on reading the title of this act, and seeing therein no expression indicating an intention to enact a mode of enforcing the ordinances which the title contemplates, that the power of police juries to enforce obedience to such ordinances would be derived from their general powers as conferred under the then existing laws, and notably, from Sec. 2743 of the Revised Statutes of 1870, granting to police juries (paragraph 7) the power “to determine the quantum of fines against all such as shall transgress their regulations which power has been continuously exercised since the year 1813, by suits instituted by police juries in their own name, through the proper officer, either of their own selection, or, as the case is at present, by a State officer, the District Attorney, to whom that duty is specially and exclusively entrusted under the law.

But, keeping in view the object as expressed in the title of this act, would not such a reader be utterly surprised, on reading through the act, to find in its body an enactment making the violation of any such future ordinance of a police jury a misdemeanor under the State laws, and providing for a mode of prosecution by information or indictment, or, in other words, in the name and under the authority of the State ? Does not such provision contain an entirely separate and distinct object from that which is expressed in the title ?

The object, as thus expressed, is to authorize and empower police juries to do certain things. The provision quoted defines the violation of the ordinance, the adoption of which is thus authorized, as a penal offence, and authorizes prosecution therefor, in the name and under the authority of the State.

It is conceded that no law of the State prohibits the sale, barter or exchange of intoxicating liquors or merchandise on Sundays; the only reference to this subject, to be found either in the Constitution or laws of the State, is in the act now under consideration, and all that the act purports in its title to do, is to authorize police juries to act in the subject matter. And, yet, in the body of the act, we find the power of the State pledged to the enforcement, by prosecution in its name and under its authority, of any and all ordinances, which may be enacted by police juries, either to regulate or to prohibit the sale, barter or exchange of intoxicating liquors or merchandise on Sundays, and this latter object is not expressed in the title. It would, indeed, be difficult to conceive or frame a statute more flagrantly violative of the constitutional requirement, under which every law must express its object or objects in its title.

In a recent case, the Succession of Patrick Irwin, 33 An. 63, we had occasion to examine and review thoroughly, and at great length, the practical application of the constitutional requirement embodied in Art. 114 of the Constitution of 1868; and to expound the reason and the philosophy of the rule, which has been the subject of study, comment and encomium of many distinguished writers on law. And we showed, in that opinion, how easy it was to violate with impunity this constitutional restriction, and that, consequently, our reports teemed with cases growing out of legislative encroachments on those constitutionally forbidden grounds.

A reference to those reported cases, fails to show a more glaring violation of the constitutional inhibition than is presented in the statute now under consideration.

A case somewhat similar is found in 26 An. 142, John I. Adams vs. Asa Webster. In that case, the Court unhesitatingly struck with nullity section 8, of Act No. 47 of 1873, which was entitled “ An act to enforce the payment of taxes due the State, providing for the seizure and sale of the property of delinquent taxpayers, and regulating the proceedings against them and against their property and tenants.” Among other astounding remedies for the enforcement of the collection of taxes, section 8 contained a provision under which the delinquent taxpayer forfeited his right to be a witness in his own behalf. The Court properly held that this was establishing a new rule of evidence, the object of which was not expressed in the title of the act, and that the provision should, therefore, be considered as unwritten or unconstitutional. In the statute now under consideration, the title of which purports to authorize the police juries to adopt Sunday laws, we find in the act two other distinct and separate objects not expressed in the title, to wit: one defining a new penal statute, and the other providing for a new mode of prosecuting violators of certain police jury ordinances.

We must conclude that those two provisions of Act 84 of 1878, being not expressed in the title of the act, are unconstitutional, null and void, and could not be the lawful authority for the indictment in this case, and that the prosecution for such an offence in the name of the State was illegal.

We are aware that in the case of the State vs. Bott, 31 An. 663, our immediate predecessors, disposing of a similar objection to the identical ordinance out of which this ease sprung, reached a different conclusion, and maintained the constitutionality of the very provision which' we feel compelled to annihilate. But with all the respect which we entertain, and the deference which we have never failed to show, for the opinions of our learned brothers of that distinguished Bench, we are reluctantly constrained to differ with them on this point, and to refuse to follow them, in the disposition they made of this important constitutional question, in the following- language, which we quote from their decision: “ The title of the act is sufficiently comprehensive. It indicates very clearly its whole purp'ose. No one after reading it could fail to be informed of the object of the legislation, and that is the intent of the constitutional provision upon that subject.”

It is evident to our minds that the point had not been pressed by counsel, and did not receive the very serious consideration of the Court.

In our researches and study on this question, we were mainly guided by a wise and salutary principle universally recognized, that laws in derogation of common right must be strictly construed and cannot be extended beyond their clear and precise import.

Of this character, are, in our opinion, all laws seeking to restrain persons in their inherent and constitutional right to pursue, on any day, avocations or trades which are not wrong in themselves, or not forbidden on other days; and of that class we consider all laws tending in the least, in their import, to infringe upon the salutary doctrine of the complete separation of church -and state; a doctrine which has dictated the brightest page of American history, and has always been the distinguishing feature of American freedom.

We do not wish to be understood as saying that the State Legislature is powerless to enact a general State Sunday law, which has not yet been attempted in this State, and on which, therefore, we are not called upon, and would not be justified, to express an opinion.

2d. Another objection to this act, urged by defendant, in charging that the General Assembly is without power to delegate its legislation to a police jury, in the manner and form resorted to therein, is entitled to serious consideration, and would of itself be fatal to the validity of that statute.

While the Legislature fails to prohibit, in the name of the State, the sale, etc., of liquors or merchandise on Sundays, it grants full power so to do to police juries in their parishes; and proffers the power of the State to champion the ordinances to that end, which may be adopted by any police jury. In other words, the Legislature engrafts, a penal statute with a suspensive condition, to wit: the passage of certain ordinances by the various police juries of the State, and thus, under its practical operation, the State in its name, at the bidding of the police jury of. East Baton Rouge, prosecutes a resident of that parish for the performance of an act which is not forbidden in the parish of St. James, wherein the identical resident of East Baton Rouge can do the same act with perfect freedom and with absolute immunity from any criminal prosecution in the premises. Cooley, Const. Lim., p. 141.

We might multiply reasons in support of that point, but we consider that we have already given sufficient reasons to justify our conclusion.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the indictment found against the defendant be quashed and set aside, and that the defendant be discharged, at plaintiff’s costs.