Allardt v. People

64 N.E. 533, 197 Ill. 501, 1902 Ill. LEXIS 3030

• Court: Illinois Supreme Court
• Decided: June 19, 1902
• Status: Published

Opinion

Mr. Justice Wilkin

delivered the opinion of the court:

In 1897 the legislature of this State passed an act which was approved June 10,1897, in force July 1 of that year, as follows:

“Sec. 1. That it shall not be lawful for any person to buy, sell, give, barter, or transfer in any manner, any pass which, by conditions expressed thereon, is not transferable, or any form of free transportation which, by conditions expressed thereon, is not transferable, issued or given by any railroad company, steamboat company or owners of other public conveyances in this State. Nor shall it be lawful for any person to use or attempt to use for the purpose of being transported upon any railroad, steamboat or other public conveyance in this State, any pass or any form of free transportation issued in the name of any person other than the one so using or attempting to use such pass or form of free transportation.

“Sec. 2. Any person violating- any of the provisions of this act shall be deemed guilty of a misdemeanor, and shall be liable to be punished by a fine not exceeding $100, or by imprisonment not exceeding one year, or either or both, at the discretion of the court in which such person or persons shall be convicted.” (Hurd’s Stat. 1899, chap. 38, secs. 125a, 1256, pp. 589, 590.)

At the May term, 1901, of the criminal court of Cook county plaintiff in error was indicted under this statute. The indictment contained four counts. The first charged

that on the 19th day of May, 1901, L. W. Allardt unlawfully used a certain pass for the purpose of being then and there transported over and upon a certain railroad of the New York, Chicago and St. Louis Railroad Company, which had before then been issued in the name of a person other than the said L. W. Allardt, and the said pass was in the words and figures as follows:

“The New Yoiuc, Chicago & St. Louis R. R. Co. 1901.

“Pass Mr. B. R. Burnet,

Com. & F. A. Texas-Southern Ry.

Until December 31st, unless otherwise ordered. Issued subject to conditions on back.

W. H. Kannifp, President. ” ’

1064.

“1901.

“The person accepting this free pass thereby assumes all risk of personal injury and loss or damage to property under all circumstances, whether by negligence of agents or otherwise.

“If presented by any other than the person named thereon, the conductor will take up pass and collect fare.”

The above conditions were endorsed on the back of the pass; The second count is substantially the same as the first, except that it charges the defendant with unlawfully attempting to use the pass described in the first count. The third and fourth counts do not materially differ from the second. At the October term, 1901, a motion to quash the indictment was overruled and the defendant entered his plea of not guilty, whereupon he was tried by a jury and found guilty in manner and form as charged in the indictment. Motions for new trial and in arrest of judgment were then overruled by the court and he was sentenced to the county jail of Cook county. To reverse that judgment of conviction this writ of error has been sued out.

The evidence upon which plaintiff in error was convicted showed that on May 19,1901, he boarded a passenger train on the said railroad at Chicago and attempted to ride on the pass set forth in the indictment. He offered the pass to the conductor and claimed to be the person named in the same, but the conductor declined to receive it and took it up, collecting the usual fare. After-wards he was arrested and taken back to Chicago and held until indicted by the grand jury. It is conceded that the pass was not issued in his name, and that he attempted to use it for the purpose of being transported from Chicago to Ft. Wayne, Indiana.

It is first insisted on behalf of plaintiff in error that the act of the legislature under which he was indicted is unconstitutional and void. Most of the argument is devoted to an attack upon the constitutionality of the act of 1875, entitled “An act to prevent frauds upon travelers, and owner or owners of any railroad, steamboat or other conveyance for the transportation of passengers,” and a criticism upon the decision of this court filed at Mt. Vernon, April 2,1894, sustaining the validity of that act; (Burdick v. People, 149 Ill. 600;) also of the disposition of the motion, afterwards filed, to expung-e that decision from our Reports. (In re Burdick, 162 Ill. 48.) The correctness of the decision reported in 149 Ill., supra, has never been questioned in this court by proper parties. It is in harmony with the decisions of courts of last resort upon similar statutes, rendered both before and since its adoption. (Fry v. State, 63 Ind. 553; State v. Fry, 81 id. 700; State v. Corbitt, 57 Minn. 345; Jannin v. State, 51 S. W. Rep. 1126.) The validity of like statutes in the State of North Carolina was recognized in State v. Clark, 109 N. C. 739, and State v. Ray, id. 736. But a single authoritative case has been found to the contrary, (People ex rel. v. Warden of City Prison, 157 N. Y. 116,) in which Parker, C. J., rendered the opinion of the majority of the court of appeals of that State holding the law unconstitutional, and to which three of the judg'es disagreed, elaborate dissenting opinions being filed by Justices Bartlett and Martin.

But the act of 1875 and the correctness of our decision in Burdick v. People, supra, cannot be considered or reviewed on this record. If the constitutionality of that act should again be presented by parties not before the court in the Burdick case, that decision will not preclude them, except in so far as it is founded upon sound reasoning and authority, and will then be re-affirmed or overruled, as shall appear right and proper. The act of 1897, under which plaintiff in error was convicted, is an entirely different statute and was manifestly passed for an entirely different purpose. It is entitled, “An act to prevent buying, selling or fraudulently using passes upon railroads, steamboats or other public conveyances.” The first section is divided into two clauses, the first of which embraces the subject of buying, selling, giving, bartering or transferring, in any manner, passes, etc. Instead, however, of forbidding such buying or selling unconditionally, as expressed in the title, the prohibition is limited to any pass which, “by conditions expressed thereon, is not transferable.” That clause, also, not only forbids the buying or selling of passes, but also prohibits the buying or selling “any form of free transportation which, by conditions expressed thereon, is not transferable.” The title of the act is, to prevent buying or selling passes, generally. But this clause clearly contemplates the issuing of such passes or other forms of free transportation by railroads, steamboats and other public conveyances, and only prohibits the buying, selling, giving, bartering or transferring, in any manner, any pass or form of free transportation “which, by conditions expressed thereon, is not transferable” by other persons after it has been so “issued or given.” It seems clear that this part of the section is violative of section 18 of article 4 of the constitution, which provides that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” This limitation requires all acts of the legislature to have but a single object and requires that object to be clearly indicated by the title, and no act can be sustained the title of which does not fairly indicate the objects and purposes of the law. The framers of the constitution intended by it to prevent legislation which should not, by the title, clearly inform the legislature of its purpose and prevent the people from being misled thereby. “The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection." (Cooley’s Const. Lim. 169, et seq.; People v. Institution of Protestant Deaconesses, 71 Ill. 229.) The title of the act of 1897 gives no information as to the purpose contained in the first clause of the first section.

But that clause is unconstitutional for the further reason, that while the title of the act is “to prevent buying, selling or fraudulently using passes upon railroads,” etc., this clause empowers these very companies to make such buying", selling, etc., lawful by withholding any condition expressed upon such passes making them nontransferable. There is no requirement of law compelling such companies to endorse a condition of that kind upon passes, and hence they may, b;r merely endorsing such a condition, make the buying or selling of them criminal or not, as they see fit. In other words, they are delegated the power by this statute, contrary to the title of the act, to make the buying or selling of passes issued by them criminal or innocent, by merely placing thereon “transferable" or declining to do so. This manifestly grants to such companies and associations special privileges, and is violative of section 22 of article 4, supra, of the constitution.

In Jannin v. State, supra, the act under consideration by the court contained the proviso “that the provisions of this act shall not apjfiy to any person holding a ticket upon which is not plainly printed that it is a penal offense for him or her to sell, barter or transfer said ticket for a consideration.” After sustaining the law generally, it is said: “It would have been a very easy matter for the legislature to have confined the sale of passage tickets to the agents of the railroad companies without any requirement as to the form of the ticket. But this course was not pursued. As it is, every railroad company has the option to issue a passage ticket with this proviso or not, as it may see proper. If it issues a ticket without this proviso it is not a penal offense, and in every such case scalpers and all others may deal in such passage tickets without any violation of the law. We accordingly hold that because the legislature left it optional with the railroad companies whether or not, in the issuance of tickets, they would create a penal offense, the act of the legislature is without authority of law; is violative of the law, in that it does not define with certainty an offense; does not itself create an offense, but delegates its authority to another agency to make the sale of railroad tickets a violation of the law.” And so, under this statute, it is left to the companies named in the act to create an offense, or not, as they shall see proper.

It is difficult to see what purpose the legislature had in the passage of this statute unless it was to protect transportation companies against the violation of conditions expressed in passes issued by them,-—in other words, to enact a criminal law for the sole purpose of enforcing a civil agreement. Railroad and steamboat passes are of different kinds. Some are purely gratuitous; others, such as drovers’ and employees’ passes or free transportation, are issued upon a good consideration. When issued in the name of a particular person they are generally held not to be transferable, and may doubtless be dishonored and taken up when presented by a person other than the one named. But that is a very different thing from making the act of buying, selling or transferring them a crime or misdemeanor.

Counsel for the People do not seriously contend that the first clause of the first section is valid, but they insist that the second clause, under which they say this conviction was had, is entirely separate and distinct from the first, and therefore the latter may be sustained although the former is held to be unconstitutional. The second clause makes it unlawful “for any person to use or attempt to use for the purpose of being transported upon any railroad, steamboat or other public conveyance in this State, any pass or any form of free transportation issued in the name of any person other than the one so using or attempting to use such pass or form of free transportation,”—which, it is said, is without the objectionable qualification, “which, by conditions expressed thereon, is not transferable;” and it is insisted that under this clause the crime consists in the use or attempt to use, for the purpose of being transported, any pass or form of free transportation issued in the name of another, and is in no way connected with or dependent upon the first clause. We concede that where the provisions of a statute are so distinct and separate from each other as that one part in no way depends upon another, and where one part is violative of some provision of the constitution and the other is not, the latter may be sustained even though in the same section,—provided, however, that the court can see that the legislature would have passed the valid part of the law without reference to the invalid. We do not agree with counsel that these clauses or sentences of the first section should be so construed. The statute is penal and must be strictly construed, one part with another, so as to give effect to the whole, if that can be done. The legislature was here dealing with the sale and use, or attempted use, of nontransferable passes or free transportation, and it cannot be said that it would have' passed the last clause without reference to the first. But it seems to us that the argument of counsel inevitably leads to the destruction of the whole law. If their position is correct and if the title to the act embraces the two objections,—that is, the one named in the first clause, independent of and separate from that enacted in the second clause,—then it is clearly void because it “embraces more than one subject.” “If the title to the act actually indicates, and the act itself actually embraces, two distinct objects when the constitution says it shall embrace but one, the whole act must be treated as void from the manifest impossibility in the court choosing between the two and holding the act valid as to one and void as to the other.” (Cooley’s Const. Lim. 177.) As said in the note to this text, “all the cases recognize this doctrine.”

We hold, then, that the act under which plaintiff in error was convicted is unconstitutional and void.

We also think there is force in the contention of counsel for plaintiff in error that the pass upon which the defendant attempted to ride is not, “by the conditions expressed thereon, not transferable.” As we have already said, the statute is to be strictly construed, and to justify a conviction under its provisions the party charged must be brought clearly within its provisions. The language is, “which, by conditions expressed thereon, is not transferable.” It is not and cannot be claimed that the pass copied in the indictment contained any such express condition. It is true, it shows by the condition on the back of it that it was not to be used by any person other than the one named therein, because if presented by any other person the conductor was required to take it up and collect the fare; but it is only non-transferable by inference or by construction, and not by the express terms endorsed thereon.

We are therefore, for the two reasons stated, of the opinion that the judgment of the criminal court should be reversed, and as the law upon which the conviction is based is invalid the case will not be remanded.

Judgment reversed.