State v. Armstrong

Because of the circumstance mentioned in the foregoing concurring opinion, the court did not have opportunity in this case for that mature consideration and deliberation which its importance merits. For that reason, and because of the changed personnel of the court, a full rehearing and reconsideration were deemed proper.

The most important question presented is whether sections 1 and 2, c. 118, Laws of 1923, whereby the Legislature attempted to adopt as the law of this state the penal provisions of the National Prohibition Act (U.S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), constitute a violation of section 18, art. 4 of the Constitution of this state which provides:

"No law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full."

However difficult may be the solution of that problem, its statement is simple. Does the act in question extend the provisions of a law by reference to its title only, and without setting them out in full, within the true meaning and intent of this constitutional limitation? The correct attitude in approaching the question is well understood. The Legislature is a co-ordinate branch of our state government. Its prerogative in the matter of legislation is to be questioned solely from the standpoint of our federal or state constitutional limitations. The function of the courts in scrutinizing acts of the Legislature is not to raise possible doubt nor to listen to captious criticism. The Legislature possessing the sole power of enacting law, it will not be presumed that the people have intended to limit its power or practice by unreasonable or arbitrary restrictions. Every presumption is ordinarily to be indulged in favor of the validity and regularity of legislative acts and procedure. We therefore approach the task predisposed, not only in favor of our original conclusions, but in favor of the validity of our legislation. Yet if, after full consideration of the true intent and meaning of the constitutional limitation here involved, we cannot acquit sections 1 and 2 of a violation of the Constitution, it is our clear duty to sustain the integrity of the Constitution. These principles are too well established and generally understood to require more than this reference.

The original conclusion by this court was thus stated:

"That the constitutional provision in New Mexico applies only to laws which, by their terms or necessary implication revise, amend or extend the provisions of other laws, thereby changing the original law by such amendment or extension, and do not refer to the enactment of a new law complete in itself except that, for the purpose of definitions or otherwise, it refers to provisions of an act of Congress by name and does not set out in full the provisions of each act so referred to and adopted."

This conclusion seems to have been reached upon the reasoning and authority of certain decisions which treat of so-called "reference statutes," and hold such statutes not violative of the particular constitutional limitation in force in the jurisdiction. To say that a "reference statute" — making new law by reference to old law — does not violate a restriction upon extending the provisions of exsiting law by reference to its title only, and without setting such provisions out in full, seems at first view to involve a clear contradiction. This suggests the inquiry whether the act in question has been sufficiently identified as a true "reference statute." It seems, also, that, if the Legislature may incorporate into the laws of this state a large body of penal laws enacted by Congress, it may, in like manner, incorporate, by mere references, and extend to this state, the provisions of any other law of Congress or of a sister state. If that be permissable, then it would seem that the people have not meant what the language they have incorporated into their Constitution clearly imports. These are the difficulties which we feel must be met before we can sustain our former conclusion.

As pointed out in the first opinion, nine states now have constitutional provision similar to the one in question. A somewhat larger number of states have constitutional restrictions upon the revision, reviving or amending of laws by reference to their title only, but not containing our restriction upon extending the provisions of laws by reference to title only. This suggests, of course, that our provision is broader and more restrictive than that of the majority of the states, and leads us to inquire whether the distinction is to have a bearing in applying to this case the decisions rendered in other jurisdictions where the constitutional limitation is narrower. The opinion also sets forth the constitutional limitations of New York and New Jersey, which are perhaps as restrictive as our own.

A reading of the decisions cited in the opinion discloses that the leading case relied upon is People v. Mahaney, 13 Mich. 481, which was decided in 1865, and, as we shall show, before any state had incorporated in its Constitution the provision against "extension statutes." In that case, the opinion written by the eminent Judge Cooley upheld "An act to establish a police government for the city of Detroit," in which it was provided that:

"The offices of city marshal and assistant marshal of the city of Detroit are hereby abolished, and the duties of said offices shall hereafter be performed by the superintendent of police, or by the captains and sergeants of police, under his direction, in accordance with the provisions of this act." Laws Mich. 1865, p. 99.

This provision was attacked as violative of the constitutional restriction that:

"No law shall be revised, altered or amended by reference to its title only; but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length."

It is there pointed out that the statute did not assume, in terms, to revise, alter, or amend any prior act or section, and that any modifying or amendatory effect was arrived at by implication. The absurdity of holding the contitutional restriction applicable to such cases was thus shown:

"If, whenever a new statute is passed, it is necessary that all prior statutes, modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the state would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was."

Such a restriction upon the power and practice of the Legislature, it was held, "must receive a reasonable construction, with a view to give it effect." Such a reasonable construction, we may infer, required the court to keep in mind the sound purpose of the provision and the existing or anticipated evil to be overcome or avoided, for the court proceeded thus:

"The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not re-published was well calculated to mislead the careless as to its effect, and was, perhaps sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent."

That these principles are sound and the decision right we have no doubt. It has been approved wherever the same question has been raised. Judge Cooley, however, was considering a constitutional restriction quite different in its terms from ours; a fact which, it seems to us, has been sometimes overlooked by courts relying upon State v. Mahaney as authority, resulting in whatever confusion exists in the decisions upon the question we are now considering.

As above suggested, when State v. Mahaney was decided in 1865, no such limitation as ours appeared in any state Constitution. Apparently the first states to adopt this provision were Arkansas and Pennsylvania. Arkansas incorporated it in its new Constitution of 1874 to replace a provision similar to Michigan's in its Constitution of 1868. Pennsylvania included it in its Constitution of 1873, having, apparently, had no prior restriction of the kind. New York adopted the restriction in 1874 by amendment of its Constitution of 1846, and New Jersey in 1875 by amendment to its Constitution of 1844. Alabama, in its Constitution of 1867, had a provision similar to Michigan's, but replaced it by its present provision, similar to ours, in its Constitution of 1875. Colorado adopted it in its original Constitution of 1876; Montana, Wyoming, and North Dakota in their original Constitutions of 1889; Kentucky, having apparently had no prior restriction, adopted its present restriction, similar to ours, in its new Constitution of 1890; and Oklahoma included it in its original Constitution of 1907.

It thus appears that, about 1873, the people of a number of states became alive to the necessity for further limiting the power of the Legislature, and that the tendency so to do has been, from that time on, somewhat marked. If required to give a reason for these changes introduced, one would be likely to conclude that it was because such provisions as that of Michigan as construed by the courts, were not deemed sufficient to carry out the broad purpose of such restriction, and to prevent the mischief existing and anticipated from certain legislative practices.

In Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714, it was at once recognized that, by these changes in the Constitutions, further restriction had been placed upon legislative practice. It fully approves the principles set forth in State v. Mahaney, supra, but remarks that the new restrictions "go further" than the old, and "extend to cases of amendments by implication." Whether that court was correct in saying that the new restrictions went to amendments by implication we need not consider, but we are led to inquire wherein the new restriction differs from the old.

A striking case is Watkins v. Eureka Springs, 49 Ark. 131,4 S.W. 384, where the court was considering an act which, by its first section, authorized the county court of any county, or the municipal authorities of any city, to call in outstanding scrip or warrants for the purpose of cancellation and reissue; by its second section provided:

"That the law governing such proceedings in a county shall apply with equal force to cities and incorporated towns. The council, recorder and marshall shall perform the duties laid down for the county court, the clerk and sheriff, respectively."

— by its third section provided that said court or council should thoroughly examine the present scrip or warrants and reject all such as they were not justly and legally bound to pay; and by its fourth section provided:

"That the law now in force governing in cases where counties are authorized to call in their floating indebtedness, shall apply and govern in proceedings had by counties, cities or incorporated towns."

The first and third sections were held unobjectionable, because "they conferred upon cities, counties, and towns alike the power to call in their outstanding indebtedness in direct terms, and not by reference to any act." As to the second section, it was said that:

"It adopts the method of procedure provided for like cases where counties are concerned without re-enacting the governing provisions. We are not, however, prepared to assert that when a new right is conferred or cause of action given, the provision of the Constitution quoted requires the whole law governing the remedy to be re-enacted in order to enable the courts to effect its enforcement."

In support of this holding, the same principles were invoked as in State v. Mahaney, supra. But when the court came to the fourth section, it encountered a quite different situation, which it dealt with as follows:

"The fourth section of the act undertakes, however, to extend the positive provisions of the law applicable to the calling in evidence of indebtedness by counties, to cities and towns, by a general reference to the prior law. The chief and most effective of these is the provision barring a recovery if the holder fails to present the evidence of his debt for reissue. Mansf. Dig. § 1149. Without this provision the act is of little utility. But can the operation of the provision be extended or the power given by it conferred upon cities, by a general reference to the former law? We apprehend that it was just this sort of blind legislation the Constitution intends to prohibit when it says the provisions of a law shall not be `extended or conferred' without `reenacting' the part `extended or conferred.' It may be that no legislator was misled by this act or failed to perceive all that it was desired it should accomplish. Of that we have no means of judging. It is sufficient that the Constitution renders such an effort at legislation unavailing. It does not permit the intelligent duty of legislation to be performed like the devotions of the christian who was content to point to the lids of a sealed book as containing his prayers and expressing his sentiments."

The distinction drawn in this case is very clear. The restriction was construed so as not unreasonably and unnecessarily to hamper the Legislature in its work, but to sustain the Constitution in its plain intent that an act should contain, upon its face, so much that legislators might know, from inspecting it, the true import of that upon which they were to vote, and that citizens might know, from inspecting it in its completed form, of what substantial rights they were thereby invested or divested. So construed, a reference to prior existing law concerning mere methods of procedure was not objectionable, and not intended to be prohibited, but such a reference for the determination of positive and substantial rights conferred or taken away could not be sustained. This distinction does not seem to have been given weight in the opinion first handed down. It has been ignored in some of the decisions therein cited. If it be a true distinction, it seems likely to be controlling in this case. This distinction we shall hereinafter refer to, for convenience, as the Arkansas rule, and it will be our purpose now to ascertain to what extent that rule finds support in the decisions of the various states whose Constitutions contain a provision similar to ours.

A recent application of the Arkansas rule, by the same court, is found in Farris v. Wright, 158 Ark. 519, 250 S.W. 889, in which the constitutionality of the following statute was in question:

"The estate of courtesy is hereby abolished, and hereafter, upon the death of a married woman, her surviving husband shall have in her estate the same interest that the wife has in the estate of the husband upon his death under the laws of this state."

This statute was declared void. The court noticed all prior decisions of that jurisdiction, and thus stated the Arkansas rule:

"This court has often considered the application and effect of this provision of the Constitution, and in each instance has adhered to the rule that `when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing the remedy to be re-enacted in order to enable the court to effect its enforcement,' but that if the statute is original in form, and by its own language grants some power, confers some right or creates some burden or obligations, it is not in conflict with the Constitution, although it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden.'"

In considering how to classify the statute in question,, the court said:

`The statute plainly confers not a mere remedy or method of procedure for enforcing a right, but it undertakes to confer a substantive right or interest. The state undertakes, in other words, to provide an interest which the surviving husband shall have in the estate of his wife upon the latter's death. This is a right or interest sought to be vested, and not a remedy or procedure to be adopted in securing a declared right."

In White v. Loughborough, 125 Ark. 57, 188 S.W. 10, and in Poe v. Street Imp. Dist. 159 Ark. 569, 252 S.W. 616, this rule was clearly set forth and adhered to, although the facts of those cases permitted the court to sustain the legislation under attack. Common School District v. Oak Grove Special School District, 102 Ark. 411, 144 S.W. 224; State v. McKinley,120 Ark. 165, 179 S.W. 181, and House v. Road Imp. Dist., 154 Ark. 218,242 S.W. 68, read in the light of these other decisions, and of the facts involved, do not, in our judgment, indicate any departure from the Arkansas rule.

In St. Louis San Francisco R. Co. v. S.W. Tel. Tel. Co., 121 F. 276, 58 C.C.A. 198, the Circuit Court of Appeals of the Eighth Circuit, in an opinion by Judge Sanborn, considering an Arkansas statute giving to telephone and telegraph companies the right to condemn rights of way "in the manner prescribed by law for taking private property for right of way for railroads as provided by sections 5458 to 5467, both inclusive, of the Revised Statutes of Arkansas 1884," succinctly stated the rule thus:

"While section 23, art. 5, of the Constitution of Arkansas, limits legislation which grants, modifies, or destroys the rights of parties, it has no application to legislation which simply affects remedies and methods of procedure."

Most of the cases in Oklahoma have to do merely with statutes attempting to amend former law by reference to title only. In City of Pond Creek v. Haskell, 21 Okla. 711, 97 P. 338, it was contended that this provision of the Constitution was violated by a statute which conferred upon counties the right to hold a special election for the purpose of selecting a permanent location for a county seat, and referred to the general election laws of the state for the procedure to be followed. In considering this contention the court reviewed many decisions, and quoted, with apparent approval, St. Louis San Francisco R. Co. v. S.W. Tel. Tel. Co., supra.

The only Colorado decision necessary to notice is Denver Circle R. Co. v. Nestor, supra. In that case, in upholding a statute in which reference was made to former statute in matters of practice and procedure, the court said that the clause of the Constitution in question was not intended "to apply alike to all legislative enactments, including those wherein a reference to the general laws becomes necessary for the means of enforcing and carrying their provisions into effect," and quoted from People v. Banks, 67 N.Y. 568, the following excerpt:

"The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty, and the final imposition of the burden are directed to be in the form and by the procedure of the other and general laws of the state. Reference is made to such laws, not to affect and qualify the substance of the legislation, and vary the terms of the act, but merely for the formal execution of the law."

The opinion, as a whole, we consider entirely in harmony with, and as a recognition of, the Arkansas rule.

In Spratt v. Helena Transmission Co., 37 Mont. 60, 94 P. 631, the statute in question extended to foreign corporations authorized to do business in the state the right to "acquire real property as provided in the Code of Civil Procedure, title VII, part III, to the same extent for the same purposes, and in the same manner as corporations, organized under the laws of this state." Laws, Mont. 1907, c. 23. After reviewing a large number of authorities, the court attempted to formulate a rule in this language:

"While it is difficult to state a rule which will apply in every case, it is believed that it may be said safely that, if the act under consideration in the particular case is original in form, if by its own language it `grants some power, confers some right, or creates some burden or obligation, it is not in conflict with the constitutional provision,' although it may refer to some other existing statute `for the purpose of pointing out the procedure, or some administrative detail necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation.'"

We find no departure from this rule, either in King v. Pony Gold Min. Co. 24 Mont. 470, 62 P. 783, or State v. Centennial Brewing Co., 55 Mont. 500, 179 P. 296.

In Bay Shell Road Co. v. O'Donnell, 87 Ala. 376, 6 So. 119, the act under consideration "for the protection of life and property upon the Bay shell road," provided:

"That it shall be unlawful for any person to allow any loose animal belonging to them to run at large upon said Bay shell road, and any animal running at large on said road may be, by any officer or employee of said Bay Shell Road Company, taken up and estrayed in the manner as is provided by article 1, c. 7, tit. 13, pt. 1 of the Code of Alabama."

The court said:

"The purpose of the constitutional requirement was to have each bill considered by the General Assembly in and of itself present the full score, operation and effect of the proposed law, so that members might know and intelligently consider the details of every measure, and vote neither aye nor nay `in blind ignorance of its provisions, or even in trusting confidence to the representations of others.'

"It would be difficult to conceive a more effective method of defeating this important and salutory purpose, than that adopted in this statute, by which the legislature attempted to amend, extend and confer all the provisions of an intricate and important statute, by a general reference to the subject-matter of that law, and to the book and page where it is published at length. So much of the act, therefore, as attempts to give the right to `estray' animals found running at large on the Bay Shell Road, is unconstitutional and void."

Laws seeking to extend by reference the territorial application of local laws have been uniformly held void in Alabama. Stewart v. Court of County Commissioners, 82 Ala. 209,2 So. 270; Barnhill v. Teague, 96 Ala. 207, 11 So. 444; Street v. Hooten, 131 Ala. 492, 32 So. 580. See also, Bolling Son v. Le Grand, 87 Ala. 482, 6 So. 332, Maxwell v. State, 89 Ala. 150,7 So. 824, and Miller v. Berry, 101 Ala. 531, 14 So. 655.

In State ex rel. v. Rogers, 107 Ala. 444, 19, So. 909, 32 L.R.A. 520, the court was considering "An act to establish a board of revenue for Lowndes county and define the powers and duties of said board of revenue (Laws Ala. 1894-95, p. 186)"; which act so changed the board as to consist of five members instead of four as formerly, and declared that the board, as changed, should "have and continue in the exercise of all the powers and duties now conferred or thereafter conferred on them by law." The court held this legislation valid on the ground that it was original in form and in itself intelligible and complete. It is apparent that it was the amending, rather than the extending feature of the constitutional limitation which the court was considering. It is also apparent, from the failure to mention them, that the court did not conceive that it was departing from its former holdings. In the course of the opinion it quotes the excerpt above quoted from People v. Banks, supra, which accurately states the Arkansas rule.

In the latter case of Rice v. Westcott, 108 Ala. 353,18 So. 844, the court said:

"The third section of the act, entitled, `An act, to amend an act entitled an act to provide for the registration and lien of judgments and decrees for the payment of money,' * * * which seeks to extend `the laws relating to the entry of credits and satisfaction of mortgages,' to the `entry of credits and satisfaction of the liens created by this act,' clearly offends both these constitutional limitations,"

— referring to the constitutional provisions as to the title of an act, and as to reviving, amending, or extending the provisions of an act by reference to its title only.

In Birmingham Union R. Co. v. Elyton Land Co., 114 Ala. 70,21 So. 314, the act under consideration provided:

"Street railroad companies organized and incorporated under the laws of Alabama, may acquire by gift, purchase or condemnation, real estate in this state, for the right of way of street railroads, a strip, tract or parcel of land, not exceeding thirty feet in width, for the right of way for said street railroads, and said street railroad companies shall have the right to condemn and take possession of said land, on payment to the owner thereof, a just compensation, in the same manner as now provided by law for taking private property for railroads and other public uses, in article 2, c. 17, tit. 2, pt. 3 of the Code."

McClellan, J., writing the opinion, said it seemed to him that the statute was void under Bay Shell Road Co. v. O'Donnell, supra, but that his associates entertained a different view under State v. Rogers, supra. While this decision may mark a departure of the Alabama Supreme Court from its former strict construction of the constitutional limitation, it is clearly not in conflict with the Arkansas rule. The right in question was clearly and explicitly granted by the statute. The reference was merely for the purpose of ascertaining the procedure by which the conferred right was to be effectuated.

Phoenix Assurance Co. of London v. Fire Department, 117 Ala. 631, 23 So. 843, 42 L.R.A. 468, is a much cited case. It is to be noted, however, that the statute, the validity of which was there upheld, was passed under the old Constitution of 1868, which, as seen, contained no restriction upon the extension of the provisions of an act.

The only Alabama decision which we consider at all questionable under the Arkansas rule is Cobb v. Vary, 120 Ala. 263, 24 So. 442, where the statute under consideration provided that lands sold for taxes and bid in for the state, if not redeemed within two years, should become the property of the state. It provided for their sale and conveyance by the state to purchasers. Section 8 provided:

"That purchasers under this act, are authorized to take possession of lands described in their respective deeds, where the same are not held adversely, and are authorized to bring suit to recover such lands where held adversely. In cases of litigation to recover or defend possession acquired under such deeds, the parties to such suits shall have all the rights and rest under all the disabilities given and imposed by sections 597, 600, 601, 602, 603, of the Code of Alabama." Laws 1894-95 Ala. p. 491.

We have examined those sections of the Alabama Code, and while in the main, they seem to deal with procedural questions, we hesitate to say that substantial rights are not therein created, and thus, by the act in question, extended by reference. The case would seem to be on the border line of distinction. We judge, however that the court considered the sections referred to as being procedural only, because the writer of the syllabus, after stating that an act in form original, and in itself intelligible and complete, does not offend against the constitutional limitation, concludes thus:

"And this is true where such act seeks to effectuate the rights conferred, by referring to certain sections of the Code as furnishing means necessary for their enforcement."

We do not think, therefore, that the court in this case intended any departure from the Arkansas rule, which it had recognized in State ex rel. v. Rogers, supra. The later cases of Beason v. Shaw, 148 Ala. 544, 42 So. 611, 18 L.R.A. (N.S.) 566, and Savage v. Wallace, 165 Ala. 572, 51 So. 605, are, in our judgment entirely consistent with it.

We have reviewed the Alabama decisions thus at length because of their illustrative character, and because they have been so often cited and relied upon. We shall not lengthen this opinion by reviewing the Pennsylvania decisions in the same manner. Illustrative cases, where statutes have been held void under the constitutional provision, are Titusville Iron Works Co. v. Keystone Oil Co., 122 Pa. 627, 15 A. 917, 1 L.R.A. 361; Pittsburg's Petition, 138 Pa. 401, 21 A. 757, 759, 761; Norristown v. Norristown Pass. R. Co., 148 Pa. 87, 23 A. 1060; Commonwealth v. J — — , 21 Pa. C. 625. Clearfield County v. Cameron Tp. Poor D., 135 Pa. 86, 19 A. 952, sometimes cited, dealt with a statute enacted before the change in the Constitution. The later decisions of Greenfield Ave. Pittsburgh's Appeal, 191 Pa. 290, 43 A. 225, James Smith Woolen Machinery Co. v. Browne, 206 Pa. 543, 56 A. 43, Guenthoer's Estate, 235 Pa. 67,83 A. 617, and McKeown's Petition, 237 Pa. 626, 85 A. 1085, perhaps indicate a somewhat more liberal policy in construing the constitutional provision, but are, in our judgment, quite consistent with the Arkansas rule. The late case of Commonwealth v Alderman, 275 Pa. 483, 119 A. 551, perhaps merits fuller consideration. There the Legislature, in adopting its Prohibition Law, provided that intoxicating liquor should mean "anything found and determined, from time to time, to be intoxicating by act of Congress passed pursuant to, and in the enforcement of, the Constitution of the United States." The court held that such would have been in Pennsylvania the definition of intoxicating liquor without the reference complained of, and that the reference was surplusage, citing National Prohibition Case,253 U.S. 350, 386, 387, 40 S. Ct. 486, 488, 64 L. Ed. 946, and Commonweath v. Nickerson, 236 Mass. 281, 292, 296, 128 N.E. 273,277, 279, 10 L.R.A. 1568. Following this very doubtful proposition, it quotes: "No act can be rendered unconstitutional by a section which makes no change whatever in the law as it was before and which might have been omitted without any effect whatever" — and says: "This principle is applicable to the instant case and governs it."

The court also held that the constitutional limitation did not contemplate and was not intended to meet the situation created by the adoption of the Eighteenth Amendment, which gave concurrent power to Congress and the states to enforce its provisions. To this conclusion we shall refer hereafter. Having reached these determinative conclusions, the court indulged in some discussion of the question before us; but the discussion seems quite inconclusive. It quoted and cited the Green field Ave. Case and James Smith Woolen Machinery Co. v. Browne, supra, which, as we have said, are not inconsistent with the Arkansas rule and Clearfield v. Cameron, supra, which, as pointed out, did not arise under the present constitutional provision.

From the comment in the original opinion upon the New York and New Jersey decisions, it is apparent that these states recognize and have announced the Arkansas rule. In fact, the distinction is well illustrated by comparing Campbell v. Board of Pharmacy,45 N.J. Law 241, with Christie v. Bayonne, 48 N.J. Law 407,5 A. 805.

State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387, 26 L.R.A. (N.S.) 873, deals with a statute claimed to offend merely in that its effect was by implication to amend and modify existing law, and comes squarely within the principles invoked in State v. Mahaney, supra. We do not find that the Supreme Court of Wyoming has ever been called upon to construe its provision.

We now come to Lyman v. Ramey, 195 Ky. 223, 242 S.W. 21, which, in our former opinion, we characterized as "the most comprehensive case on the question here under review." The Legislature passed a law of two sections, the first of which authorized foreign fidelity or guaranty companies, having charter power to become surety, to carry on their business in Kentucky; and the second of which provided:

"That said companies shall comply with all provisions of law applicable to fire and marine insurance companies of other states, doing business in this state." Ky. St. § 724.

The "provisions of law" referred to constituted a comprehensive Code dealing with and regulating insurance companies generally, but not fidelity or guaranty companies. Among these regulations was one against the rebating of premiums. The appellant, an agent, had applied for a license, which was refused on the ground that his plan of carrying on his business constituted rebating. One of his contentions was that the second section of the statute was invalid because in conflict with the constitutional provision which we have under consideration. The court held that, if the second section should be held void, the whole act must be so held, because the Legislature, having adopted strict regulations for other insurance companies, could not be presumed to have intended to authorize fidelity and guaranty companies to do business in the state without regulation; and, as no other authority than the act in question was to be found under which such companies could be admitted to do business in the state, the applicant could not obtain the relief he sought even if his contention as to the constitutionality of the second section should be sustained. This, of course, sufficiently determined the case before it; but the court thereupon proceeded to discuss the contention, deciding it adversely. It cites Savage v. Wallace, State v. MvKinley, Denver Circle R. Co. v. Nestor, Christie v. Bayonne, supra, and People v. Banks, 67 N.Y. 568, all of which are, to say the least, consistent with the Arkansas rule. It cites State v. Mahaney, supra, and State v. Tausick, 64 Wash. 69, 116 P. 651, 35 L.R.A. (N.S.) 802, in which jurisdiction the constitutional provision does not prohibit extensions. It quotes 26 Amer. Eng. Ency. of Law, p. 711, which is a perfect statement of the Arkansas rule. It seems to misinterpret In re Guenthoer's Estate, supra, which it assumes to hold "that this same rule obtains, not only in regard to reference statutes where the act adopts a prior procedural statute, but also where it adopts a statute affecting substantial rights." In that case, the distinction between procedural statutes adopted and those affecting substantial rights was not discussed or passed upon in considering the effect of the constitutional limitation, but only as it affected the proper construction of the statute there in question. Invoking State v. Tausick, supra, after noting that the Washington Constitution does not use the words "extend" and "confer," it remarks that it was intended to prevent the same legislative abuses; thus begging the question which we set for ourselves at the outset, namely, what additional restraint are the words "extend" or "confer," or both, intended to place on legislation?

Further analysis of this decision would not profit. In its facts it is not unlike Cobb v. Vary, supra. Considering the facts and the discussion, it is open to question whether the Kentucky court took ground against the Arkansas rule. Conceding that it did, the case is clearly distinguishable from the case at bar. The most that can be said for it is that it developed an additional exception, which might be stated thus: That an act creating a new right may refer to another act or body of law for the conditions under which — as well as the procedure by which — such right may be effectuated. We are not prepared to say that this is not a permissible construction of the constitutional limitation; but it does not solve our problem, nor support the conclusion of the opinion first handed down.

The opinion quotes section 120, 25 R.C.L. p. 875, where the "reference statute" rule is so stated as to apply even under constitutional limitations such as ours. To that statement of the law, there are cited only Phoenix Assurance Co. of London v. Fire Dept., City of Montgomery, and State v. Tausick, which cases we have already noticed, and which do not support it. It refers to section 160 of the same article ("Statutes"), where it is said:

"When in one statute a reference is made to an existing law, in prescribing the rule or manner in which a particular thing shall be taken, or for purposes of ascertaining powers with which persons named in the referring statute shall be clothed, the effect generally is not to revive or continue in force the statute referred to for the purpose for which it was originally enacted, but merely for the purpose of carrying into execution the statute in which the reference is made."

The extent to which "reference statutes" are permissible under our form of restriction is better expressed in 26 Amer. Eng. Ency. of Law, p. 710, as follows:

"The constitutions of several states declare that the provisions of an existing law shall not be extended or conferred by reference to its title only, but that so much thereof as is extended or conferred shall be re-enacted and published at length. Other Constitutions declare that no act shall be passed which shall provide that any existing law or part thereof shall be deemed a part of said act, except by inserting it therein.

"The Supreme Court of Colorado has said that a clause of this character goes further than the general constitutional provision about amendments, `and extends to cases of amendments by implication;' but that it should not be taken to apply alike to all legislative enactments, for such a construction would be unreasonable and would impose more serious inconveniences than those sought to be remedied. Having regard to the argument from inconvenience, it should be enforced according to its reason and spirit and the evils against which it was directed. The purpose of this clause has been said to be not to embarrass the Legislature in the enactment of laws, but to obtain a fair and intelligent exercise of the lawmaking power.

"Therefore, it is generally held that if an act is complete in itself, it may adopt rules of construction or modes of procedure for carrying out its provisions by reference to other statutes, whether or not this provision is contained in the Constitution; and such adoption by reference may include references to local as well as general laws. Statutes of this character are known as reference statutes."

The state places reliance upon Ex parte Burke, 190 Cal. 326,212 P. 193. There, as pointed out in the original opinion, the court was considering the "Wright Act," substantially the same as, and undoubtedly the model for, our chapter 118. The "Wright Act" (St. 1921, Cal. p. 79), was upheld, the court saying:

"Wherever there is no constitutional provision which forbids it, it is proper to declare that any law of the United States, or of another state, shall be the law of this state. * * *"

With reference to this case, it is only necessary to note the language of the California Constitution:

"No law shall be revised or amended by reference to its title; but in such cases the act revised or section amended shall be re-enacted and published at length as revised or amended. "Const. art. 4, § 24."

Having now reviewed the authorities cited in the opinion, as well as others, we have developed nothing further than the Arkansas and Kentucky rules. In the light of these authorities, and of the principles therein established, we must now determine whether sections 1 and 2, c. 118, can stand. As said in substance in many of the cases, the purpose of such limitations as this (as well as of that, common to most of the states, that a statute shall contain but one subject or object, which shall be expressed in its title), is that statutes shall carry on their face sufficient that, by an inspection, their import may be known. This purpose is everywhere admitted to be salutary. It was to prevent evils broadly referred to as "blind legislation," manifested in a number of ways. Amendments were made by merely striking out or inserting a phrase or word. Statutes repealed, and perhaps for that reason omitted from compilations, were revived by reference to title only. Existing laws or provisions of laws of the same or other jurisdiction were adopted by mere reference. All of these legislative practices frustrated the broad purpose of these constitutional limitations and constituted "blind legislation." In developing the remedy, restriction was first placed upon reviving or amending, or revising or amending by reference to title only. This provision, as correctly construed by the courts, cured only some of the evils of "blind legislation." It did not touch "reference statues," for such did not amend, revise or revive. The existing law was left to operate just as it did before. Its scope was merely enlarged in one way or another. It requires no argument to demonstrate that courts have no power to restrict legislatvie practice, even by consulting the mischief intended to be avoided, by declaring an act void when the language of the Constitution does not make it so. To complete the remedy, the restriction upon extensions was inserted. Here was language broad enough to effectuate the purpose, but so broad as to lead, if literally followed, to absurd results in hampering legislation. So construction was properly resorted to, not to defeat the true purpose of the provision, but to give it a reasonable and practical application. Thus arose the Arkansas rule of distinction, and possibly the Kentucky rule. This is the distinction between Ex parte Barke, 190 Cal. 326, 212 P. 193, and the case at bar.

It is impossible to doubt that a statute denouncing crime, prescribing penalties involving loss of liberty and property, and branding the violator as a felon or misdemeanant, is one dealing with positive and substantial rights. That this is a flagrant case of blind legislation seems clear. It may be, as stated in Watkins v. Eureka Springs, supra, that "no legislator was misled by this act or failed to perceive all that it was desired it should accomplish." It may be that the people so well understood the National Prohibition Law that it would have been supererrogation to re-enact its provisions as the law of this state. But that is not the question. The courts are not left to inquire whether the Legislature or the people at large, or the party litigating, have been misled in a particular case. They are given a general rule, the application of which is presumed best to meet all cases. Of course, all are presumed to know — the law of limitations, the laws of curtesy and dower, the recording and lien laws, and the acts of Congress. But, had the people been content to rest the case upon that presumption, there would have been no occasion to adopt the constitutional limitation in question. It is largely because of requirements making the law plain and accessible that such necessary presumption may be fairly indulged.

In Commonwealth v. Alderman, supra, an important conclusion was based, in part, upon the proposition that the Eighteenth Amendment granting concurrent power to Congress and the state to legislate for its enforcement, was not contemplated when the constitutional limitation was adopted. Upon this fact we are unable to base any distinction. The Eighteenth Amendment does not require this state, in the exercise of its concurrent power, to adopt the same legislative policy as Congress in its wisdom, may choose; nor does it require us to legislate at all. In re Opinion of the Justices, 239 Mass. 606, 133 N.E. 453; Commonwealth v. Nickerson, 236 Mass. 281, 128 N.E. 273, 10 A.L.R. 1568; State v. Gauthier, 121 Me. 522, 118 A. 380, 26 A.L.R. 652. In fact,, we are controlled by a constitutional provision of our own more restrictive than the Eighteenth Amendment or the Volstead Act. Constitutions lay down general principles. They do not often deal with concrete situations. They are made with an eye to the future. It is our boast that the federal Constitution, framed in 1787, because of these facts, has been found sufficient, with infrequent amendment, to meet the changed conditions of the passing years. It may be that in time federal jurisdiction will be so enlarged, with so many concurrent powers of Congress and the states, that our present constitutional restriction will become burdensome. It may be that, as conditions have changed, and may change, by reason of improved communication, more accessible law books, and more widespread familiarity with law, our constitutional limitation may be thought to have served its purpose and to have become outworn. But it is for the people to change their Constitution; not for the courts to fritter it away.

[9] Other considerations suggest themselves, but we fear that the interest of the question and the importance of the case have already carried us too far. Being unable on any theory to reconcile sections 1 and 2, c. 118 of the Laws of 1923 with section 18, art. 4 of the Constitution, we are constrained to hold the former void. It results that the judgment must be reversed and the cause remanded, with direction that the accused be discharged; and it is so ordered.

PARKER, C.J., and BICKLEY, J., concur.