The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-10-22

commissioners, although doubtless the
sc neral prohibition against gambling
would have extended To all games Tor
money whether enumerated or not.
But. as said before. chapter ., con
cernng gaming was already stricken
out by the legislature. bill No. 30 Tor a
penal code having passed both branches
some five days before senate bill NO.
IS was introduced. (The penal code had
not become a law. for the governor did
not approve 1t until Feb. 10. 1882
There was. therefore, before the body
no chapter .. concerning gaming. to
be amended In the penal code. as chap
ter 10 followed chapter S. There were,
however. In the penal code. or house
bill No. 50 at the time OF Its passage as
an act to establish penal code. and as
appears by the enrolled bill, three chap
ters .. under different parts. titles and
subdivisions"
"The senate bill must be regarded as
an Independent bill. So that even II
the legislature. by the senate bill could
have amended the penal code. regard
ing the latter as another bill which
had not yet become a law, what one OF
the three existing chapters did senate
bill No. As refer to? The Constitution
win easily guide us as to a conclusive
answer"
Here the opinion quotes section OF
constitution which provides that no
bill except general appropriation bills
and bills for the codiflca ton and gen
eral revision OF the laws shall be passed
which do not have their subject matter
clearly expressed in title. Also the
following section Of the constitution Is
quoted: mo law shah be revised or
amended. or the provisions thereof ex-
| tended, by reference to its title only.
but so much thereof as Is revised.
amended or extended shall be re-en-
acted and published at length" Re
suming, the opinion reads:
"Who could ever tell by the title OF
! the act that II related to any particu-
lar one Of the several subjects included
in the several chapters numbered o,
in the penal code? There was not even
a reference to title or a subject for
a part of the many titles and sub
jects, and OF the several parts Of the
code sought to be altered by the bill
Was any subject clearly expressed In
such a title? Aianifestly not Its am
biguoumess Is too plain to require COM
ment.
"Our imperative duty is to uphold the
constitution when a statute conflicts
with 1t. Whether the legislation being
inquired into Is good or bad. mora
or immoral in its tendencies. cannot
enter into our examination of the Ques-
tions involved. II the legislature has
violated constitutional commands In
the enactment OF the senate bill now
printed as law Of the penal code
we must declare that 1t has. 1t were
far better at this time, in the early
history of this new state, that a legis-
lative act be declared Invalid that
that precedent be set by which plain
provisions of the constitution may be
nulllfed by loose and questionable in.
terpretations Of our fundamental law
Being Of the opinion that the senate
bill. printed as sections 500 to 607 Of the
penal code. did not clearly express any
subject In its title. It follows that Il
was passed in violation Of the consti'
tuition.
As consequence, the sections ol
said act have no proper place in Tho
published codes. and should be ex
plunged therefrom. Respondent con-
cedes that the same laws which wers
in force In 1889. re-enacted as part oi
chapter s (sections S57 to 369 pena
code. are alive and must control now
The order of the district court directing
the acquittal Of the defendant Is af
frmed."
Three other opinions were HANDED
down as follows: State ex rel. Petel
Koch, relator, VS.. Frederick W.Wright
state treasurer fEom Gallatin county
The state treasurer. on the advice o
the attorney general, kept the money
received from the sale of agricultural
college bonds. The local executive
board at Bozeman demanded tn,
money, and 1t was refused. Peter
Koch, treasurer Of the college. then Sc
cured an Alternative writ of mandate
which directed the state treasurer Il
turn the money over to the local boarj
or show cause why he did not do so
The supreme court says the law 1.
plain, making il the duty of the stat,
, treasurer to turn over the money L
the local board. The writ Is made per
manent. Opinion by Dewitt.
Jacobs. Sultan & Co., respondent, VS.
Union Mercantile company. appellant
from Lewis & Clarke. The judgmen
of the lower court is affirmed. Opinion
by Chief Justice Pemberton.