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Ellery v. State

Supreme Court of Arizona

June 1, 1933

SID W. ELLERY, Appellant,
STATE, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment affirmed.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr. K. Berry Peterson, Attorney General, and Mr. C. T. McKinney, Assistant Attorney General, for the State.


Page 839

[42 Ariz. 81] LOCKWOOD, J.

Sid. W. Ellery, at the time of the acts with which this case is concerned superintendent of banks for the state of Arizona and hereinafter called defendant, was convicted of a violation of section 214, Revised Code of Arizona 1928, which reads as follows: "§ 214. Prohibitions on officials; penalty. It shall be unlawful for the superintendent or any examiner or employee of his office to borrow money, either directly or indirectly from a bank [42 Ariz. 82] under the jurisdiction of the department. Every person who shall violate any provision of this section shall forfeit his office or employment, and shall be guilty of a misdemeanor," and has brought this appeal before us. There are a number of assignments of error, but we shall consider them rather in the logical order of the propositions of law raised thereby than by the specific assignments made.

The first contention is that the section above quoted is unconstitutional for the reason that it refers to a subject which is not expressed in the title of the act containing it, in violation of section 13, part 2, article 4, of the Constitution, which reads as follows: "Section 13. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title." In considering this objection we shall have to state briefly the manner in which the Revised Code of 1928 was adopted. In 1925 a commissioner was appointed charged with the duty of making a thorough and complete revision and codification of all the statutory law of the state of Arizona. This work was continued for two years and the commissioner made a report of his labors to the legislature which met in 1927. That legislature appointed a committee of its own members to assist him and to prepare for submission to a later session bills for the enactment of the new Code. Pursuant to this authority, there was prepared a complete revision of the statutory law of Arizona. A special session of the legislature was called to meet November 19th, 1928, one of the purposes being stated "to enact legislation to revise the civil and penal codes, the laws of Arizona." A number of different bills containing titles such as "Banks and Banking," "Public Finances," "Penal Code," etc., [42 Ariz. 83] were then presented to and passed separately by the legislature, each bill containing the statement that it was adopted as "a part of the Revised Statutes of Arizona." These bills were numbered consecutively by chapters from 1 to 139 and by sections from 1 to 5349, instead of the chapters and sections of each separate bill beginning from 1 and running to whatever number was required to complete it. After all of these separate measures had been duly passed and submitted to and approved by the Governor, the legislature passed and adopted Senate Bill No. 100, which was presented to the Governor on the fourth day of January, 1929, and by him signed on the fifth day of January, subsequent to the passage and approval of all of the separate bills before referred to. We quote the bill in full with the exception of the space represented by stars. In that space is found in regular order, divided into parts, chapters and sections entitled and numbered substantially as they appear in the printed Code of 1928, the entire statutory law of Arizona up to that time, both civil and criminal. "State Senate "Eighth Legislature "Fifth Special Session

"Senate Bill No. 100

"An Act to Revise, Codify and Adopt A Revision and Codification of the Laws and Statutes

Page 840

of the State of Arizona and Declaring an Emergency

"Be it enacted by the Legislature of the State of Arizona:

"Section 1. That the laws and statutes of the State of Arizona, revised, codified, harmonized and reduced by the Code Commissioner appointed by the Governor under the provisions of Chapter 35, Session Laws Seventh Legislature, 1925, as further prepared for submission to the Legislature by the Legislative Code Committee, under the provisions of Chapter 31, Session Laws, Fourth Special Session, Eighth Legislature, 1927, and as amended and adopted by the Eighth Legislature, Fifth Special Session, [42 Ariz. 84] 1928, be and the same are hereby enacted as the laws and statutes of the State of Arizona, which said laws and statutes are as follows: * * *

"Section 2. Each and all of the aforesaid laws and statutes shall take effect and be in force at 12 o'clock noon on the first day of July, 1929.

"Section 3. All laws and statutes of a general nature now in force, are hereby repealed, said repeal to take effect at 12 o'clock noon, ...

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