Virginia. Supreme Court of Appeals.

Cases decided in the Supreme Court of Appeals of Virginia online

. (page 65 of 89)
Online LibraryVirginia. Supreme Court of AppealsCases decided in the Supreme Court of Appeals of Virginia → online text (page 65 of 89)
Font size
QR-code for this ebook


the subject are to be solved in favor of its validity. These
principles and these presumptions are not of mere local
application, but are common to practically all of the States.
Authority is so abundant as to be easily found, and it
would unnecessarily burden this opinion to do more than
cite a few of the late cases by way of illustration. Buttm
V. State Corporation Commission, 105 Va. 634, 54 S. E.
769; Henrr^'s Case, 110 Va. 879, 65 S. E. 570, 26 L. R. A.
(N. S.) 883; McGrew v. Mo, Pac. if. Co., 230 Mo. 496, 132



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812, 823

Opinion.

S. W. 1076; Butler v. Board, etc., 99 Ark. 100, 137 S. W.
251; People V, Prendergast, 202 N. Y. 188, 95 N. E. 715;
iTfip. Irr. Co. V. Ja^nj&, 104 Tex. 395, 138 S. W. 575, Ann.
Cas. 1914 B, 322; Scoiun V. Czamecki, 264 111. 305, 106 N.
E. 276, L. R. A. 1915 B, 247, Ann. Cas. 1915 A, 772; State
V. PaUerson, 181 Ind. 660, 105 N. E. 228 ; Eckerson V. Des
Moines, 137 Iowa 452, 115 N. W. 177; BuUitt V. Sturgeon,
127 Ky. 332, 105 S. W. 468, 14 L. R. A. (N. S.) 268; Evers
V. Hudson, 36 Mont. 135, 92 Pac. 462.

On no subject have the legislatures been given a freer
hand than in dealing with intoxicating liquors. It has been
so far regarded as an enemy of mankind that the most
drastic legislation to suppress its use by the public has been
upheld by the courts. We cite a few cases simply as illus-
trations : Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273,
31 L. Ed. 205 ; Purity Extract Co. V. Lynch, 226 U. S. 192,
33 Sup. Ct. 44, 57 L. Ed. 184 ; James Clark Distilling Co.
V. Western Mo. R. Co., 242 U. S. 311, 37 Sup. Ct. 180, 61
L. Ed. 326, L. R. A. 1917 B, 1218 ; Exjyress Co. v. Whittle,
194 Ala. 406, 69 So. 652, L. R. A. 1916 C, 278; DeUmey v.
Plunkett (Ga.) 91 S. E. 561; State v. Phillips, 109 Miss.
22, 67 So. 651, L. R. A. 1915 D, 530 ; Glenn v. Southern Ex-
press Co., 170 N. C. 286, 87 S. E. 136. For collection of
cases, see 17 Am. ^ Eng. Ency. Law (2d ed.) 207, et seq.

In this State, from the earliest date to the adoption of
the present Constitution, the legislature has exercised un-
controlled power over the manufacture and sale of intoxi-
cating liquors, and since local option and dispensary laws
have come into vogue, has exercised undisputed authority
and control over these subjects also. In view of these
facts, it would require very plain language to convince us
that it was the purpose of the constitutional convention to
take away from the legislature of this State a power exer-
cised by the legislatures of the other States of the Union,



Digitized by VjOOQ IC



824 Pine v. Commonwealth, 121 Va. 812.



Opinion.



and one that has been within the province of the legrisla -
ture of this State from the earliest date.

The constitutional provisions relating to the legislative
department have been classified as mandatory and prohibit
tive. The oaths of the legislators bind them to the per-
formance of the one, and the courts restrain them from the
performance of the other, if they should overstep tiie limits
set. As to all other powers they are free to act as their
judgments dictate.

"In the partition of power between the three depart-
ments of government, the power of making laws Is con-
ferred on the General Assembly ; some laws they are com-
pelled by mandate to make; other laws they are forbidden
to make; these are the only limits to their powers; all sub-
jects of legislation not affected by mandate, nor by pro-
hfbition, are within the discretion of the General Assem-
bly." Commonwealth v. Drevrry, 15 Gratt. (56 Va.) 1, 5.

As the legislature has all legislative power not taken
away by the Constitution, it would seem that the classifica-
tion into mandatory and prohibitive provisions was in the
main correct. Constitutions, however, sometimes contain
other provisions relating to or affecting the legislative de*
partment, which may be classified as either permissive or
declaratory. This is especially true of modem Constitu-
tions which enter into greater detail and more nearly ap*
proximate legislation than formerly. Indeed, some of
their provisions are purely legislative in character. When
the Constitution has fully dealt with a subject and covered
the entire ground, the legislature would be powerless to
make any change in it, unless specially authorized to do so,
and it may be desirable to confer such authority. In such
case the authority is conferred by a permissive grant in
the Constitution. McGurdy v. Smith, 107 Va. 757, 60 S.
E. 78; Constitution 1902, sees. 89, 95, 100, 101. In other
cases the constitutional provision is only declaratory of the



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812. 825



Opinion.



existing law, and there may or may not be annexed to it a
prohibitory provision. For example, section 47 declared
that, "Each house shall judge -of the election, qualification,
and returns of its members.; may punish them for dis-
orderly behavior, and, with the concurrence of two-thirds,
expel a member." There is no grant of power here that
did not exist before, nor does the declaration of the power
inhibit the house from exercising othet powers, such as
the suspension of a member, or the imposition of a penalty
for neglect* of duty, but he cannot be expelled by less than
a two-thirds vote. Again, that portion of section 175 of
the Constitution which declares, "but the General Assem-
bly may, from time to time, define and determine such
natural beds, rocks or shoals, by surveys or otherwise,"
conferred no power on the General Assembly which it did
not possess l)efore, but is simply declaratory of the exist-
ing law.

The presumption is that the same meaning attaches to a
given word or phrase which is repeated in a Constitution,
unless the contrary is made to appear, and hence the whole
instrument should be examined to ascertain what that
meaning is. Green v. Weller, 32 Miss. 650. There are but
four sections of the Constitution containing the phrase
"The General Assembly shall have power." These are sec-
tions 100, 101, 62 and 84. The first two plainly belong to
the class of permissive provisions, and were necessary to
enable the legislature to act on the subject at all. The con-
vention had dealt fully with the whole subject of courts,
and marked out a complete system, and if this was to be
changed in any way, it was necessary for the Constitution
to provide that, "The General Assembly shall have power"
to make the change. Hence, the provisions permitting the
legislature to establish courts of land registration, and to
confer certain jurisdiction upon clerks of circuit courts.
Section 86, however, is purely declaratory of the existing
104



Digitized by VjOOQ IC



826 Pine v. Commonwealth, 121 Va. 812.

Opinion.

law, and conferred upon the legislature no power not pre-
viously possessed by it. That section declares, "The Gen-
eral Assembly shall have power to establish and maintain
a Bureau of Labor and Statistics, under such regulations
as may be prescribed by law." The word "bureau" means,
"A subordinate department, or a division of a principal
department;" "A department or force of men transacting
a particular branch of public business." Standard Diet.,
Bouvier's Law Diet. ; Button V. State Corp. Com., 105 Va.
634, 639-40, 54 S. E. 769. These definitions sh6w that the
word "bureau" is used to express the same idea as that
commonly expressed in the legislation of this State by
the word "board," as for example, the "board of education."
If the maxim, expressio unius est excusio alterius, be ap-
plied to this section, then the power conferred to eistablish
a "Bureau of Labor" excludes the idea of any other bureau,
and the legislature would be powerless to establish a bu-
reau of charities and corrections, a bureau of fisheries,
a bureau of game, a legislative bureau, a bureau of
printing, or of highways, and probably of education ; and,
indee, of any other subjects. Yet all of these bureaus
or boards have been established long ago, and during the
fifteen years the Constitution has been in operation, there
has not been even an intimation that the legislature did
not have power to establish them. The conclusion is almost
irresistible that no objection has been raised simply be-
cause there was no foundation for it. The section is clearly
simply declaratory of the existing law.

The only remaining section containing the phrase, "The
General Assembly shall have power" is section 62. It dif-
fers slightly, but significantly, from the phrase contained
in the other sections. In order to avoid the idea of a limi-
tation to any extent whatever on the legislative power, it
declares that the General Assembly shall have ftcU power.
No new power whatever is conferred upon the legislature.



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812. 827



opinion.



It does not authorize the enactment of a single law the leg-
islature might not have enacted if the section had not been
adopted. It is simply declaratory of the existing law, but
thereby inviting attention to the subject. At the time of
its adoption there had been no abatement in the zeal of tem-
perance advocates, and there is nothing to indicate an in-
tention on the part of the State to release its power over
the whole subject of intoxicating liquor. It is not to be
presumed that the convention, while declaring that the
General Assembly had "full power" over the subjects men-
tioned in the section, meant by its silence to take away
a power that had existed from the foundation of the gov-
ernment. No language used takes from the legislature full
power and authority over the whole subject, but a rule of
construction is invoked to take it away by implication. We
are unwilling, under the circumstances, to imply a revoca-
tion of a power of such long existence. If the convention
had desired to restrain the legislature iji this matter, after
so great a lapse of time, we are satisfied it would have done
so in express terms. Certainly we are unwilling to imply
such restraint. Generally, when the convention has de-
sired to place a restraint upon the legislature, it has done
so expressly, as by providing that the General Assembly
shall not charter a church, pass a bill of attainder, ex post
facto law, law impairing the obligation of a contract, ap-
plying a religious test, authorizing a lottery, or the like.
In the instant case, complete authority over the whole sub-
ject of intoxicating liquors has not been taken away from
the legislature by an express provision, nor do we think it
results by necessary implication.

This view of the nature of section 62 of the Constitution
is confirmed by the debtes thereon in the convention. Dur-
ing the discussion of a motion to strike the section out, Mr.
R. Walton Moore said : "This morning I inquired of some



Digitized by VjOOQ IC



828 Pine v. Commonwealth, 121 Va. 812.



Opiniin.



of the members of the committee, includinfi: the chairman,
if any question seemed to exist as to the power of the Gen-
eral Assembly to enact a dispensary system, unless author-
ized by the Constitution. They answered in the negative "
Mr. Quarles said he had seen in the press that some circuit
court had held a dispensary law unconstitutional and he
wished to remove all doubt on the subject. Proceeding fur-
ther to insist on the retntion of the section, he said : **What
harm will it dd? Why should not every doubt about the
question whether or not the legrislature has full power to
deal with this matter be removed ? It may do some good and
I think it will ; it certainly can do no harm. I think the
legislature has the power already, but I may be wrong."
Thereupon, the section was adopted. Debates Constitu-
tional Convention, pages 2751-2.

The court is of opinion that the purpose of the act is a
wise one, but even if it were of a difflerent opinion, it could
make no difference in the result so long as it is within the
legislative power, for judicial opinions of expediency can-
not be substituted for the will of the legislature when con-
stitutionally expressed. As said in Purity Extract Co, V.
Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184: "It is
also well established that, when a State exerting its recog-
nized authority undertakes to suppress what it is free to
regard as a public evil, it may adopt such measures having
reasonable relation to that end as it may deem necessary
in order to make its action effective. It does not follow
that because a transaction separately considered is innocu-
ous it may not be included in a prohibition the scope of
which is regarded as essential in the legislative judgment
to accomplish a purpose within the admitted power of tte
government. Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct.
425, 46 L. Ed. 623; Oti^ v. Parker, 187 U. S. 606, 23 Sup.
Ct. 168, 47 L. Ed. 323; Ah Sin V. Wittman, 198 U. S. 500,
504, 25 Sup. Ct. 756, 49 L. Ed. 1142; New York, ex rel 5ife



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812. 829

Opinion.

V. Hesterberg, 211 U. S. 32, 29 Sup. Ct. 10, 53 L. Ed. 75;
Murphy v. California, 225 U. S. 623, 32 Sup. Ct. JB97, 56
L. Ed. 1229, 41 L. R. A. (N. S.) 153. With the wisdom of
the exercise of that judgment the court has no concern;
and unless it clearly appears that the enactment has no sub-
stantial relation to a proper purpose, it cannot be said that
the limit of legislative power has been transcended. To
hold otherwise would be to substitute judicial opinion of
expediency for the will of the legislature, a notion foreign
to our constitutional system."

We are of opinion that the provisions of the act of Assem-
bly approved March 10, 1916 (Acts 1916, page 215), com-
monly known as the prohibition act, so far as called in
question in this case, are not forbidden by section 62 of
the Constitution of this State.

Counsel for plaintiffs in error cited State v. GUman, 33
W. Va. 146, 10 S. E. 283, 6 L. R. A. 847, as authority for
the position that the prohibition statute in this State is
unconstitutional. In that case the Constitution of West
Virginia declared that, "Laws may be passed regulating or
prohibiting the sale of intoxicating liquor within this
State." Const., Art. 6, sec. 46. The legislature of West
Virginia enacted a statute making it a penal offense to
"solicit or receive orders for, or keep in his possession for
another'* (Code 1887, chap. 32, sec. 1, as amended by Laws
1887, chap. 29), intoxicating liquors. The court held that
the act was in conflict with both the federal and State Con-
stitutions, and was therefore void. The decision was made
in 1889, and is not in consonance with the authorities here-
inbefore cited, most of which are of much more recent date.
For this reason we are unable to follow it.

Another objection to the indictment is that it contains
but one count, and yet it charges many offenses, and that
it does not inform the defendant of **the cause and nature
of his accusation."



Digitized by VjOOQ IC



830 Pine v. Commonwealth, 121 Va. 812.

Opinion.

The act covers thirty printed pages and abounds in of-
fenses created and penalties imposed. Section 3 of the act
defines about one dozen specific crimes, and section 5 de-
clares that any person who shall violate any provision of
this act, shall, except as otherwise herein provided, be
deemed guilty of a misdemeanor. Section 7, as we have
seen, declares that "while any good and sufficient indict-
ment may be used, an indictment for any first offense under
sections three, four and five of this act, shall be sufficient
if substantially in the form or to the effect following."
The allegation, therefore, that the single count charges
more than one offense is fully sustained. All of the offenses
charged, however, are misdemeanors. It has been held
more than once in this State that, while any number of
misdemeanors of the same nature and punishable in the
same manner may be charged in the same indictment, there
must be a separate count for each offense, and that a de-
fendant cannot be convicted of more offenses than there
are counts. Mitchell's Case, 93 Va. 775, 20 S. E. 892;
Hatcher & Shaw's Case, 106 Va. 827, 55 S. E. 677. If the
defendant cannot be "convicted of more offenses than there
are counts" in the indictment, it follows that he cannot be
lawfully charged with more than one offense in a single
count.

We have no disposition to detract from anything said in
the cases cited, but they must be read in the light of the
conditions existing when they were rendered. At that time
there was no statute on the subject, and they announce the
principle existing in the absence of statutory regvMm,
The act under consideration in effect declares that more
than one offense arising under the statute may be charged
in a single count. The power of the legislature to chan^
rules of procedure is unquestionable, except as restrained
by the Constitution, and we can see no good reason why it
may not provide that what has heretofore required several



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812. 831



OpinioiL



counts in an indictment may now be accomplished by a
single count, provided the prisoner is not unlawfully pre-
judiced thereby. If the prisoner is not prejudiced, it is a
matter of mere procedure and clearly within the province
of the legislature. The prisoner is not so prejudiced if he
is fully put upon notice of the cause and nature of the of-
fense with which he is charged, and is afforded ample oppor-
tunity to make his defense.

It is claimed by the plaintiffs in error that the constitu-
tional provision, "that in all criminal prosecutions a man
hath the right to demand the cause and nature of his accu-
sation" (Const. 1902, sec. 8), has been ignored. It is a
fundamental proposition that in all cases, civil as well as
criminal, a person haled into court has the right to demand
that he be told in plain, intelligible language what is the
cause of the complaint against him; and this right, in so
far as it relates to crimes, is guaranteed by both the fed-
eral and State Constitutions; the federal Constitution, ap-
plicable to prosecutions by the United States, declaring that,
"In all criminal prosecutions, the accused shall enjoy the
right to * * * be informed of the nature and cause of
the accusation" (amendment VI), and the State Constitu-
tion, "That in all criminal prosecutions a man hath the
right to demand the cause and nature of his accusation."
(Va. Const., sec. 8.) It will be observed that the language
of the two Constitutions is substantially the same. We
have no case in Virginia defining what is meant by "cause
and nature of the accusation," but it is very clearly set
forth by Chief Justice Waite in United States V. Cruik-
shmk, 92 U. S. 543, 23 L. Ed. 588. Paragraph 12 of the
syllabus in that case, taken almost literally from the opin-
ion, is as follows:

**In criminal cases, prosecuted under the laws of the
United States, the accused has the constitutional right *to
be informed of the nature and cause of the accusation.'



Digitized by VjOOQ IC



832 Pine v. Commonwealth, 121 Va. 812.



Opinion.



The indictment must set forth the offence with clearness
and all necessary certainty, to apprise the accused of the
crime with which he stands charg^ ; and every ingredient
of which the offence is composed must be accurately and
clearly alleged. It is an elementary principle of criminal
pleading, that, where the definition of an offence, whether
it be at common law or by 3tatute, includes generic terms,
it is not sufficient that the indictment shall charge the of-
fence in the same generic terms as in the definition, but it
must state the species — it must descend to particulars.
The object of the indictment is — first, to furnish the ac-
cused with such a description of the charge against him
as will enable him to make his defense, and avail himself
of his conviction or acquittal for protection against a fur-
ther prosecution for the same cause ; and, second, to inform
the court of the facts alleged, so that it may decide whether
they are suflScient in law to support a conviction, if one
should be had. For this facts are to be stated, not conclu-
sions of law alone. A crime is made up of acts and intent;
and these must be set forth in the indictment, with reason-
able particularity of time, place, and circumstances.'*

After thus stating the law, the Chief Justice gives a num-
ber of instances of allegations deemed too vague and un-
certain, and says: "The accused has, therefore, the right
to have a specification of the charge against him in this re-
spect, in order that he may decide whether he should pre-
sent his defence by motion to quash, demurrer, or plea ; and
the court that it may determine whether the facts will sus-
tain the indictment."

To the same effect is Head's Case, 11 Gratt. (52 Va.)
819, and ArringtorCs Case, 87 Va. 96, 12 S. E. 224, 10 L.
R. A. 242, holding that the indictment must always allege
the offense with such fullness and precision that the de-
fendant may know for what he is prosecuted, and thereby
be enabled to prepare his defense, and that the conviction



Digitized by VjOOQ IC



Pine v. Commonwealth, 121 Va. 812. 833

Opinion.

or acquittal may be pleaded in bar of any future prosecu-
tion for the same offense. The subject is discussed with
ability by Downey, C. J., in McLaughlin v. State, 45 Ind.
338. In State v. Terry, 109 Mo. 601, 19 S. W. 206, Sher-
wood, C. J., goes into the subject very fully, and discusses
it with ability. In that case the legislature of Missouri had
passed a statute on the subject of obtaining money by false
pretences and authorized a brief form of indictment with-'
out giving the necessary details of the offense. Commenting
upon the indictment prescribed by this statute, the Chief
Justice said: "The legislature may change it in form, but
cannot change the substance of its material averments,
without impinging upon constitutional guaranties."

Referring to the provision of the Bill of Rights of that
State, similar to the Bill of Rights in this State, declaring
tiiat a man has the right to demand the cause and nature
of his accusation, he said : "The right to make such a de-
mand is just as great, just as mandatory, as any other of
the kindred rights grouped together in the same section of
the Constitution. So that the simple question is here pre-
sented, does an indictment which follows the statutory
form prescribed, and uses the precise language set forth
in the section quoted, meet with the requirements of the
Constitution? ♦ ♦ . * But the 'nature and cause' ot an
accusation are not stated where there is no mention of the
full act, or series of acts, for which the punishment is to
be inflicted."

In 1 Arch. Crim. PI. & Pr. 88, it is said : "T»ie principal
rule as to the certainty required in the indictment may, I
think, be correctly laid down thus : That where the defini-
tion of an offense, whether by a rule of common law or by
a statute, includes generic terms (as it necessarily must),
it is not sufficient that the indictment should charge the of-
fense in the same generic terms as in the definition, but it
must state the species, it must descend to particulars." To
105



Digitized by VjOOQ IC



834 Pine v. Commonwealth, 121 Va, 812.

Opinion.

the same effect see Mears V. Cotti., 2 Grant. Cas. (Pa.)
385; Com. v. PhdlUps, 16 Pick. (Mass.) 211; 17. S. v. MiUs,
7 Pet. 142, 8 L. Ed. 636; United States v. Cook, 17 WalL
174, 21 L. Ed. 538; State v. Lea/med, 47 Me. 426; 1 Chitty
Cr. Law, 170; 1 Bishop Cr. Pr., sees. 81, 86, 88, 519.

Tested by the doctrine of these cases, the indictment
under consideration, standing alone and unaided by the
particulars of the offense, is, in some of its aspiects, plainly
insufficient. For instance, by section 3 of the act it is made
an offense to ''transport" for sale ardent spirits, and yet
the indictment, under section 7, nowhere mentions "trans-
port" as one of the offenses of which evidence may be o6-
fered. Section 3 makes it an offense to "advertise" for
sale, or to "aid in procuring ardent spirits" without stating
the facts constituting the offense; and by section 4 it is
made an offense to act as "agent" or "employee" in certain
instances, without stating the facts showing such agency or
employment; but these various offenses may be committed
in different ways. In fact, there may be serious conflict as
to whether a given act amounts to advertising, or amounts
to aiding, or to acting as agent or employee, in all of these



Online LibraryVirginia. Supreme Court of AppealsCases decided in the Supreme Court of Appeals of Virginia → online text (page 65 of 89)