State v. Pasta , 44 Idaho 671 ( 1927 )

While traveling on the highway between Pocatello and Blackfoot, appellant, in attempting to pass a car going in the same direction, collided with the car he was attempting to pass, as well as with another car approaching from the opposite direction. Considerable injury resulted to the three cars and to their occupants. Appellant was convicted of a violation of that portion of sec. 13, chap. 249, 1921 Session Laws, which reads —

" . . . . and no vehicle shall overtake and pass any other vehicle when the view ahead is not clear for at least one hundred yards."

He was sentenced to pay a fine and to serve a term of imprisonment. The appeal is from the judgment.

C. S., sec. 1614, a part of chap. 69, title 11, Compiled Statutes, contained twenty-five paragraphs relating to rules to be observed by the drivers of vehicles on roads and highways, and was entitled "Laws of the road." C. S., sec. 1619, made the violations of any of the provisions of chap. 69 a misdemeanor. The legislature, in 1921, repealed C. S., sec. 1614, and enacted chap. 249, "Declaring laws of the road." No penalty was provided in the 1921 act. In 1923, the legislature passed an "Act adding a new section to Chapter 249, 1921 Session Laws . . . . relating to the Laws of the road . . . . providing penalties for the violations of the provisions of said Chapter 249."

It is the position of appellant, in the first place, that the penalty provision in the 1923 act is not sufficiently germane to the subject matter of the 1921 act, as expressed in its title, to comply with the constitutional requirement (sec. 16, art. 3) that an act shall contain but one subject and matters properly connected therewith, which subject shall be expressed in the title. The object of the title of an act is to give a general statement of the subject matter contained therein, and the act must not be so construed as to extend its effect beyond the limits fixed in the title. The title, however, must of necessity be brief; and a general statement will be held to be sufficient to include all the provisions having a reasonable connection with the subject matter mentioned in the title and which have a reasonable tendency to accomplish the purpose of the act. (In re Crane, 27 Idaho 671,151 P. 1006.) The title of an act regulating the conduct of persons naturally infers a penalty for its violations and it is not necessary to mention the penalty in the title. (36 Cyc. 1032.)

"An act to regulate any specified business, or the use of property, or regulating human conduct in any way, or to prohibit acts or things, or to protect persons or property or public or private rights, may include penal provisions, or provisions imposing a civil liability or giving a civil remedy, without such penalties, liabilities or remedies being referred to in the title." (1 Lewis' Sutherland, Statutory Construction, sec. 136, p. 230.)

Since the penalty provision is sufficiently germane to the subject matter expressed in the title of the original act as to have been originally included therein, its subsequent addition is not prohibited by the constitution.

In the case of In re Terrett, 34 Mont. 325, 86 P. 266, the court said:

"The provisions of the amendatory act are germane to the subject treated in the original act and under the title of the amendatory act, any alteration by excision, addition, or subtraction might have been made, and any provision inserted which might have been incorporated in the original act under its title. 1 Lewis' Sutherland, Stat. Constr., § 137."

Appellant also contends that the 1923 act so changes, alters and amends every provision of the 1921 act that, in compliance with sec. 18, art. 3 of the constitution, it was necessary to set forth the entire act as amended. The foregoing section of the constitution forbids the amendment of an act by mere reference to its title, but it does not prohibit the addition of a new section to an existing law by reference to the title of the original act where each act is complete as to its purpose, if the latter act is germane and relates to the subject matter indicated in the title of the original act. (Settlers' Irr. Dist. v. Settlers' Canal Co.,14 Idaho 504, 94 P. 829.)

The rule is laid down in 36 Cyc. 1062-1064, sec. 2b, as follows:

"The clause was not intended to abolish the doctrine of amendment or repeal by implication, or to forbid the enactment of supplemental laws; and thus a statute which, while it may relate to other statutes or matters contained therein, does not in fact amend them is not within the constitutional prohibition, and simply because a statute, which adds to or is properly described as a supplement to another act, by construction is incidentally amendatory thereof, it does not violate the clause of the constitution, particularly where each act is complete as to its purpose; . . . ." (1 Sutherland, Stat. Constr., 433; Edwards v. Denver R. G. R. R. Co.,13 Colo. 59, 21 P. 1011; City of Beatrice v. Masslich, 108 Fed. 743; Brown v. City of Silverton, 97 Or. 441, 190 P. 971;Copland v. Pirie, 26 Wash. 481, 90 Am. St. 769, 67 P. 227.)

The 1923 act is supplementary; it is complete as to its purpose and does not alter or change as much as a word of the former act. As hereinbefore stated, the 1923 act is germane to the prior act, the title of which is broad enough to have included the latter act, had it originally been embraced therein.

Appellant complains that the court allowed witnesses for the state to testify to appellant's traveling at an excessive rate of speed. An examination of the transcript discloses that the trial court uniformly sustained appellant's objections to such proffered evidence, except that he permitted the driver of one of the cars, with which appellant collided, to testify that immediately prior to the collision he saw appellant "whip out behind" the car he is charged with having passed (and which he injured) "apparently about like I would be going if I would have been going fifty or sixty miles." While appellant was not charged with traveling at an excessive rate of speed, the evidence tended to explain the circumstances of the crime charged and the resulting collision. The court instructed the jury "that any evidence that may have been received or admitted as to the speed of the respective car . . . . has no bearing whatsoever upon the issues of this case, and are not to be considered by you in arriving at your verdict." It is not apparent that prejudice resulted from the admission of the evidence complained of. (State v. Rooke, 10 Idaho 388, 79 P. 82.)

The next assignment is directed to the insufficiency of the evidence to sustain the verdict. The force of the argument in this respect is directed to the fact that the 1921 act requires that the view of the road at the time of overtaking and passing must be clear for a hundred yards but does not mention the necessity of the road itself being clear for the same distance, and it is contended that the evidence is conclusive that the view of the road was clear for at least half a mile. A reasonable interpretation of the language of the act can lead only to the conclusion that, included within its import, is the prohibition of one vehicle passing another, going in the same direction, if a third vehicle is approaching within one hundred yards. With another vehicle approaching, the view of the road could not be clear. There is an abundance of evidence in the record showing that, at the time of overtaking and passing the vehicle, as charged in the complaint, clear vision of the road was impossible because the other vehicle with which appellant collided had approached within a distance of a hundred yards. The evidence is amply sufficient to sustain the verdict.

The court did not err in refusing to give appellant's requested instruction No. 2. We refrain from determining whether the requested instruction, or the instruction given by the court, on the same subject, correctly stated the law. It is sufficient to say that the requested instruction was substantially covered by and included in an instruction which the court gave. (State v. Nolan, 31 Idaho 71, 169 P. 295;State v. Cosler, 39 Idaho 519, 228 P. 277; State v. Hoagland,39 Idaho 405, 228 P. 514; State v. Jurko, 42 Idaho 319,245 P. 685; State v. George, ante, p. 173, 258 P. 551.)

The court erred in sentencing appellant to both fine and imprisonment. The law provides that a violator of the 1921 act shall be punished "by a fine . . . . or imprisoned . . . ." The case is, therefore, remanded to the lower court, with instructions to resentence, appellant in accordance with the law. With this modification, the judgment is affirmed.

Budge, Givens and T. Bailey Lee, JJ., concur.