State v. Boylston

69 So. 860, 138 La. 21, 1915 La. LEXIS 1811

• Court: Supreme Court of Louisiana
• Decided: March 22, 1915
• Docket: No. 21161
• Status: Published

Opinions

LAND, J.

The defendant was indicted for embezzling, for the use of one J. R. Brown, the money of a certain state branch bank, contrary to paragraph 7 of section 1 of Act 189 of 1902.

Defendant first moved to quash the indictment on the ground that it set forth no crime or offense known to the laws of the state of Louisiana.

Defendant then, without abandoning said motion, moved to quash the indictment on the further ground that Act 189 of 1902, particularly the seventh paragraph, is unconstitutional and void, for the reason that said act does not express the object in its title, as required by the Constitution, of the state, and, if it does, which -is denied, that the said act has two separate and distinct objects, likewise in violation of article 31 of the Constitution of this state.

This motion was sustained by the trial judge, and the accused was ordered to be discharged, and the state has appealed.

[1] The judge a quo, in a well-considered opinion assigned his reasons for holding paragraph 7 of section 1 of Act 189 of 1902 to be unconstitutional.

The original act of March 15, 1855 (Acts 1855, No. 166) is entitled “An act to establish a general system of free banking in the state of Louisiana.” Act 150 of 1888 is entitled “An act to amend and re-enact section 3 of act of March 15, 1855.”

Act No. 95 of 1892 is entitled “An act to amend and re-enact Act No. 150 of the session of 1888.” And Act No. 189 of 1902 is entitled “An act to amend and re-enact Act No. 95 of the session of 1892,” amending and re-enacting Act No. 150 of 188S, amending and re-enacting section 3 of act of March 15, 1855 entitled, etc.

Act No. 166, approved March 15, 1855, is entitled “An act to establish a general system of free banking in the state of Louisiana,” and contains 41 sections.

Section 3 relates exclusively to the powers of banking corporations to be formed and organized under the provisions of the act. There is no section of this long statute which provides a penalty for the embezzlement of the money or funds of banking corporations. The penalties imposed relate solely to violation of banking rules. Embezzlement and breach of trust in general was denounced in section 81 of Act No. 120 of 1855, entitled “An act relative to crimes and offenses,” and embezzlement of money belonging to banks or deposited therein was specially penalized by section 83 of the same act.

These two sections were incorporated in the Revised Statutes of 1870, and there appear as sections 905 and 907.

The titles of the amendatory acts of 1888, 1892, and 1902 limit their scope to the amendment of section 3 of Act 166 of 1855, relating exclusively to the powers of banking corporations, and give no notice whatever of a purpose. to add a penal section to that statute, or to amend sections 905 and 907 of the Revised Statutes of 1870. Hence Act 189 of 1902 is a plain violation of article 31 of the Constitution of 1898.

[2] 'Conceding the unconstitutionality of paragraph 7 of section 1 of Act 189 of 1902, sections 905 and 907, Rev. St. 1870, would remain as the existing legislation on the same subject-matter. State v. Dalcourt, 112 La. 423, 428, 36 South. 479; City of Shreveport v. Kahn, 136 La. 371, 67 South. 38. Hence the case should be remanded for a retrial of the first motion to quash and for further proceedings according to law.

It is therefore ordered that the judgment below he affirmed as to the unconstitutionality of paragraph 7 of section 1 of Act No. 189 of 1902, but otherwise be reversed, and the case remanded for further proceedings according to law.

See dissenting opinion of O’NIELL, J., 69 South. 861.