State v. Smart

136 P. 452, 22 Wyo. 154, 1913 Wyo. LEXIS 43

• Court: Wyoming Supreme Court
• Decided: November 17, 1913
• Docket: No. 736
• Status: Published

Opinion

Scott, Chief Justice.

This case was prosecuted under the provisions of Chapter 86, Session Laws 1888 of Wyoming, Approved March 9, 1888, entitled “An Act relating to the proper observance of the first day of the week, commonly called Sunday.” Said act as originally passed reads in its entirety as follows:

"Be it enacted by the Council and House of Representatives of the Territory of Wyoming:

“Section 1. Every person or persons, company or corporation, having license to sell liquors under the laws of Wyoming territory, who shall keep open, or suffer his or their agent or employe to keep open, his or their place of business, or who shall sell, give away or dispose of or permit another to sell, give away or dispose of, on his or their premises, any spiritous, malt, vinous or fermented liquors, or 'any mixtures of any such liquors, on the first day of the week, commonly called Sunday, or upon any day upon which any general or special election is being held, shall be guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than twenty-five dollars, or more than one hundred (100) dollars, or imprisonment in the county jail not to exceed three months.

“Sec. 2. It shall 'be unlawful for any person or persons, company or corporation, to keep open any barber shop, store, shop or other place of business for the transaction of business therein, upon the first day of the week, commonly called Sunday: Provided, This section shall not apply to newspaper printing offices, railroads, telegraph companies, hotels, restaurants, drug stores, livery stables, news depots, farmers, cattlemen and ranchmen, mechanics, furnaces or smelters, glass works, electric light plants and gas works, the vendors of ice, milk, fresh meat and bread, except as to the sale of liquors and cigars. Any person, company or corporation who shall violate the provisions of this' section, shall, on conviction thereof, he fined in a sum of money not less than twenty-five dollars, nor more than one hundred dollars, for each offense.

“Sec. 3. So much of section ten hundred thirty-four (1034) of the Revised Statutes of Wyoming as conflict with this act and other acts and parts of acts inconsistent with this act, are hereby repealed. '

“Sec. 4. For the'purpose of this act the first day of the week, commonly called Sunday, shall begin at midnight Saturday and terminate the following midnight.

“Sec. 5 This act shall take effect and be in force from and after its passage.

“Approved March 9, 1888.”

The case was before this court on reserved question and remanded without answering the questions, the decision being handed down on September 12, 1910. (18 Wyo. 436, .110 Pac. 715). The information was thereafter amended and filed in that court on March 13, 1911, and it was thereafter carried on the docket of the lower court as No. 1032. On November 7, 1911, defendant demurred to the information on the ground that the facts stated therein do not constitute an offense punishable by the laws of the State of Wyoming. The demurrer was argued and submitted to the court on May 11, 1912, and the court upon consideration on that day overruled the demurrer as to all statutory grounds but deeming certain difficult constitutional questions affecting the validity of the statute under which the prosecution is sought to be maintained, involved, reserved those questions, ten in number, to this court for its decision. The questions stript of their verbiage may be stated as hereinafter set forth.

1. The First, Second, Eighth and Tenth questions may be discussed and considered together. They are as follows:

“1. Was said act in violation of the provisions of Section 1 of the Fourteenth Amendment to the Constitution of the United States, and particularly the provisions therein: ‘Nor (shall any state) deny to any person within its jurisdiction the equal protection of the laws’, and therefore void ?”

“2. Was said act of March 9, 1888, known as the Sunday Raw, in violation of any of the provisions of the Act of Congress known as the ‘Springer Act,’ the same being Chapter 818 of Volume 24 of the U. S- Statutes at Large, page 170, and particularly of the following provisions thereof:

‘That the legislatures of the territories of the United States now or hereafter organized shall not pass local or special laws in any of the following enumerated cases, that is to say: ****** * For the punishment of crimes or misdemeanors. * * * * * * * Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.

“In all other cases, where a general law can be made applicable, no special law shall be enacted in any of the territories of the United States 'by the Territorial legislatures thereof/ — and therefore void?”

“8. Does said act discriminate unconstitutionally and unlawfully against liquor sellers as to the penalty fixed in the original act?”

‘To. Does said act unconstitutionally and unlawfully discriminate against liquor sellers and in favor of others permitted to do business therein on Sunday ?”

The act had to do with the regulation and sale of intoxicating liquors. It was in so far as it referred to the sale and keeping open on Sunday a saloon or place where intoxicating liquors were exposed for sale, a law in the nature of a police regulation, and applied uniformly to all persons within the state who had procured and were lawfully engaged in the business of keeping a saloon under a license so to do. Under the general law it is unlawful to sell, give away or dispose of liquor without having first obtained a county license as' required by law. (Secs. 2832, 2838, Comp. Stat. 1910). The law is a regulation of a licensed business and which business is unlawful at any time without such license. It protected the licensee from punishment for an act which would be otherwise unlawful. (23 Cyc. no, m, 112). It is provided by special charter of the City of Laramie (Sec. 1440 Comp. Stat.) as follows: “Said city, in its corporate capacity, is authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by this chapter.” * * * “Fourth; To restrain, prohibit and suppress tippling shops, and all places where intoxicating liquor is sold, * * * * desecrations of the Sabbath day, commonly called Sunday, and all kinds of public indecencies* ******. “Thirty-ninth. The city council of said city shall have the power to license, control and regulate the sale of spirituous and intoxicating liquors within said city, in addition to the county license therefor, and for that purpose shall collect a license fee or tax from each dealer in spirituous or intoxicating liquors of not less than one hundred dollars nor more than five hundred dollars, payable annually in advance, and the council shall annually fix the amount to be paid for such licenses. Each license shall be issued for one year and no less period, and shall clearly state upon its face such conditions as the council may impose upon issuing the same; but such shall be transferable by consent of the council.”

It was not the intention as evidenced by the provision of the charter nor by the general statute that the local municipal government should have any power over the issuance of a county license to keep a saloon, though indirectly the refusal to issue a city license would operate in preventing the carrying on of such business within the corporate limits even though a county license had been obtained therefor. The saloon keeper takes his county license subject to the general law of the state. His business is restricted to the provisions of the law and the grant in the license is restricted to and must be considered within the provisions of the law (23 Cyc. 113), and .when he violates the law with reference to such business it is apparent that his license cannot protect him. (23 Cyc. 191).

The act is not in conflict with the provisions of the Act of Congress, Chapter 818, Volume 24 of the U. S. Statutes at Large, page ifo, known as and commonly called the “Springer Act,” because the act under consideration was neither local nor special. The defendant here is prosecuted under a general law applicable to a particular class not local but as wide in its application as the then territory, now state. The Springer Act was not violated for it prohibited the territorial legislatures from passing any local or special law “granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” The defendant is prosecuted under a general law. Nor was the enactment in violation of the provision of Section 1 of the 14th Amendment to the Constitution of the United States that “Nor (shall any state) deny to any person within its jurisdiction the equal protection of the laws.” There was no discrimination in the act under which the defendant procured his license. The amount thereof was a fixed amount applicable to all equally alike who obtained such a license. (23 Cyc. 80). The Constitution clearly lodged in the legislature the right to enact appropriate laws in aid of its police power to regulate the liquor traffic. As to whether section 2 of the act is or is not constitutional as an exercise of the police power of the state need not be here considered for whether it is or not can not affect the validity of the first section of the act, which is complete in itself and treats of a subject of separate and independent legislation in itself. We may assume in a sense that the legislation was' class legislation 'but the law does not discriminate between different members of that class, —that is to say, those engaged in the business of-a licensed liquor dealer. Any one who chooses to engage in such business must obtain and pay a license so to do and submit to the regulations and restrictions placed upon such business by the statute. It was said in Borck v. State, (Ala.) 39 So. 580: “ If the state can prohibit the sale as to all persons, it certainly has the power to prohibit it as to a class that the state deems unfit to engage in the business;— to such as will not observe and obey the laws of the state made in regard to the traffic.” (Ex parte Burke, 59 Cal. 6, 43 Am. Rep. 231; Sherman v. Patterson,. 82 N. J, L. 345, 82 Atl. 889). In State v. Grossman, 214 Mo. 233, 113, S. W. 1074, it was held that prohibiting the keeping open of a dram shop or the selling, giving away, or otherwise disposing of any liquor on Sunday is not invalid as class legislation. The legislative power to designate Sunday and require its observance is supreme and conclusive. (Hennington v. Georgia, 163 U. S. 299, (16 Sup. Ct. 1086, 41 L. Ed. 166); 1 A. R. C. 554; State v. Dolan, 13 Idaho, 693, 92 Pac. 995 (14 D. R. A. (N. S.), 1259; Dist. of Columbia v. Robinson, 30 App. D. C. 283, 12 Ann. Cas. 1094). It has been held that the legislature may select any day of the week and require that all business should be suspended on such day, works of necessity and charity being excepted. Indeed, in the act under consideration, it is declared unlawful for any saloon keeper to keep his place of business open or sell intoxicating liquors on election days. To each of the questions numbered 1, 2, 8 and 10 we answer “No.”

2. Questions 5 and 6 are as ollows:

“5. Was said Sunday law, so changed in its terms and original language in sections 2642, 2643 and 2644 of the Revised Statutes of Wyoming, 1899, as to render the same nugatory and void?”

“6. Was said act included in said revision of 1899 or repealed thereby?”

It is apparent that these questions go. only to the construction of the statute and do not raise any constitutional question and for that reason this court is without jurisdiction to answer them and returns the same unanswered.

3. Question number 7 is as follows:

“7. Was said act lawfully passed as disclosed by the Journals of the two houses of the tenth legislative assembly of the Territory claiming to pass the same?”

It is urged that the law never legally passed the legislature and, therefore, failed to become a law. It is conceded that the enrolled act filed in the office of the Secretary of State bears the signature of the President of the Council, the Speaker of the House and the approval and signature of the then Governor of the Territory. The legal enactment of the law appears at least prima facie and the burden is upon the defendant to show not only that there is a doubt as to whether the act regularly passed the legislature, but to make an affirmative showing from the journals of both or either branch of the legislature that there was such a defect in the proceedings as to vitiate the purported enactment. The history of the bill as gleaned from the House and Council Journals shows that on February 20, 1888, the bill was first introduced in the Council and all proceedings were regular and with a few amendments the bill passed the Council on March 9th, following, as Council File No. 41, entitled, “A Bill for the proper observance of Sunday.” On the same day as appears from the House Journal at page 310, the bill reached the House and was read the first time, and after an amendment was under suspension of the rules passed to the third reading, read, placed upon its final passage and regularly passed by an aye and nay vote, 14 of the members voting aye, 6 voting no, absent 3. In the Council Journal at page 258 appears the following: “March 9, 1888, C. F. No. 41 was then taken from the table on motion of Mr. Holliday and the amendments made by the Honorable House concurred in.” Immediately following this recital and on the same page as a part of the day’s proceedings the following entry appears, to-wit: “The chair announced signing Council Enrolled Acts Nos. * * * 29 * * *.” Then follows the recital of the receipt of the following message from the House, to-wit:

“Hall of the House, Cheyenne, Wyo., March 9, 1888. Hon. President of the Council :

Sir: I have the honor to inform your honorable body that the House has this day passed C. F. No. 41 ‘relating to the proper observance of Sunday' as amended in section 2 (rider attached) and the said bills are herewith respectfully enclosed.

Very respectfully,

H. Glafcku, Chief Clerk.”

On page 259 of the Council Journal the following appears:

“Cheyenne, March 9, 1888.

Mr. President:

Your committee No. 12 beg leave to report back Council Files Nos. 41 and 47 correctly enrolled. Robert Smith, Chairman.” Under date of March 9, 1888, House Journal 312, “The Speaker announced he had signed Council Enrolled Act No. 29 relating .to the proper observance of Sunday. * * * * * *. On motion a recess was taken for ten minutes. House reconvened at 5 :2o p. m.” The enrolled act was then officially delivered to the Governor, who officially approved and signed it, and by separate message to each so notified the Council and the House of his approval and the affixing of his signature thereto. It is here urged that the Council did not have the bill before it when it concurred in the amendment. It is also urged that the President of the Council signed the bill before its enrollment. That the Council did not have the bill before it at the time it concurred in the amendment can be inferred, if at all-, from th'e fact that the Journal recites the receipt of the communication from the House immediately after the recital of its concurrence in the amendment. But the journal álso recites that the bill was taken from the table on motion of .Mr. Holliday and the amendment made by the House concurred in. It is a self-evident fact that the bill could not have been taken from the table unless it was there; and the recital that it was so taken from the table, and the further fact that it contained an amendment of which the Council could have had no knowledge in the absence of the bill, to our minds outweighs the circumstance of the order in which the business of the day appears on the journal. The same is true of the order of the recitals of the journal on which it is urged that the bill was signed before it was enrolled. The journal recites that the enrolled act was signed, and it so appears on file in the office of the Secretary of State (then Territory), and if the journal speaks the truth in that matter it was enrolled before it was signed, notwithstanding the order of the recitals of the day’s business in the journal. (Goff- v. Rickerson, Sheriff, 61 Fla. 29, 54 So. Rep. 264). The recitals of the journals cannot be here disputed and ihey recite that the President of the Council and the Speaker of the House, respectively, did sign the Enrolled Act and thereafter such Enrolled Act-was sent to the Governor for his approval, and such Enrolled Act as it appears on file in the office of the Secretary of State bears the signature of the President of the Council, the Speaker of the House and the •signature and approval of the Governor. Taking the journal entries in their chronological order there may be some doubt as to. the validity of the Act. The journals show the date oirwhich' these various acts were done and we think in that respect the recitals purport absolute verity. Further, the presumption obtains that such proceedings were regular and such presumption is only overcome when it affirmatively appears from the journals to be otherwise. Upon the recitals of the journals there arises at most only a doubt as to the validity of the act assailed, and.that being so it is the duty of the court to maintain the law. To question number 7 we answer, “Yes.”

4. Questions number 3 and 4 are as follows:

"3. Was said Act a valid law in force at the time of the adoption of the Constitution of this State of Wyoming?”

“4. Was said Sunday law repugnant to the Constitution of Wyoming and void for that reason?”

The act having been legally enacted continued in force under the provision of Section 3, Art. 21 of the Constitution of the State unless repugnant thereto, and which is as follows : “All laws now in force in the Territory of Wyoming, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.” Section 15, Art. 5, of the Constitution also provides that “all prosecutions shall be carried on in the name of the State.” The territorial legislature was. not limited by the provision of the Constitution of the.State (Sec. 24, Art. 3) to the effect that “if any subject is embraced in any act which is not expressed in the title,-such act -shall be void only as to so much thereof as

shall not he so expressed/’ The State of Wyoming was not then in existence and there was no limitation upon the territorial legislature in that respect. The law was continued in force as a law of the State of Wyoming by virtue of the provisions of the constitution. Section 24, Art. 3, was not retroactive but was intended to and did provide a rule and guide for the legislature in the future, fix parte Burke, 39 Cal. 6, 43 Am. Rep. 231). We therefore hold that the act was not repugnant to the provisions of the Constitution of the State of Wyoming and answer “Yes” to question number 3, and “No” to question number 4, respectively.

5. Question number 9 is as follows:

“9. Is such penalty intelligible, lawful, constitutional and enforceable against licensed liquor sellers?”

In so far as this question seeks a statutory construction independent of the constitutionality of the act it need not be discussed or answered. That the legislature had the right to fix a penalty is conceded and as to whether the act discriminates against licensed liquor dealers is discussed in another part of this opinion, in which we held adversely to defendant’s contention. Independent of the construction of the act we answer that the penalty fixed in the original act was not discriminative in such sense as to render the act void and limiting our answer to this phase of the question, we answer, “No.” The answers to the respective questions as herein made will be certified to the District Court of Albany county, except as to questions 5 and 6, which, for the reasons stated, we return to the trial court without answering.

Beard, J., concurs. Potter, J., being ill, did not participate in this opinion.