
    (106 So. 364)
    No. 27387.
    STATE et al. v. DUDLEY. In re DUDLEY.
    (Nov. 2, 1925.
    Opinion by O'Niell, C. J. Nov. 13, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    1. Automobiles &wkey;>332—Ordinance, punishing driving automobile while “under influence of liquor,” held to state offense; “in an intoxicated condition.”
    An ordinance, denouncing the driving of a motor vehicle “while under the influence of liquor,” clearly states the offense; the term “under the influence of liquor” being well recognized as synonymous with the term “in an intoxicated condition.”
    [Ed. Note.—-For other definitions, see Words and .Phrases, First and Second Series, Under the Influence of Liquor.]
    2. Statutes <&wkey;l 18(6)—Act, amending statute as to driving motor vehicle while intoxicated, held not broader than title.
    Act No. 78 of 1924, amending and re-enacting Act No. 132 of 1922, and providing that any person who shall operate a motor vehicle in an intoxicated condition, and in so doing cause injury’to person or property, shall be guilty of a felony, iheld; not broader than its title, though the amended act made it misdemeanor for any person to drive motor vehicle while in an intoxicated condition, regardless of injury thereby caused.
    
      3. Statutes <&wkey;ll8(6)—Acf making that a felony which had formerly' been misdemeanor, held not broader than title declaring purpose to amend.
    An amendatory act which makes that a felony which had formerly been only a misdemeanor is not broader than its title, declaring its purpose to amend the act which formerly made such offense only a misdemeanor.
    4. Contracts <&wkey;>l59—Statutes 4&wkey;47—Use of alternative conjunction “and/or” permissible in contracts, but not in statutes; Legislature must not leave matter to be supplied by courts.
    The use of the expression “and/or” in a contract is permissible and is equivalent to a direction that it be construed so as to best accord with the equity of the situation, using either conjunction, but such usage cannot apply to statutes, since the Legislature, in making its laws, must express its own will and leave nothing to the mere will or caprice of the courts, particularly in the matter of punishing offenses.
    [Ed. Note.—Eor other definitions, se.e Words and Phrases, And/Or.]
    5. Automobiles «&wkey;332 — Statute construed as punishing driving ' while intoxicated, only where injury to person or property results, and as so construed valid.
    Act No. 78 of 1924, providing that o*ne operating motor vehicle while intoxicated “and, or” who shall cause injury to person or property, shall be guilty of felony, construed and •hold not invalid as uncertain and ambiguous, but intended to punish the unlawful act of driving while intoxicated, only where injury to person or property thereby results, such construction necessitating deleting as surplusage the word “or.”
    6. Statutes <&wkey;>202—Words may be rejected to effectuate legislative intent, but not to change it.
    In construing a statute, words may be omitted or expunged to effect the clear legislative intent, but words, the omission of which would change the legislative intent, cannot be rejected or disregarded.
    7. Automobiles &wkey;>332 — Act making felony driving of motor vehicle while intoxicated supersedes act making driving while intoxicated misdemeanor.
    Act No. 78 of 1924, making it a felony to drive a motor vehicle while intoxicated, whereby injury to person or property results, supersedes Act No. 132 of 1922, making it a misdemeanor to drive a motor vehicle while intoxicated, which latter act the former purports ’to amend and re-enact.
    8.Automobiles &wkey;>350—City court, or judge, without jurisdiction to try accused of offense of driving while intoxicated.
    City court, or judge, held without jurisdiction to try one accused of the offense of driving-while intoxicated, in violation of Act No. 78 of 1924, since such offense is made a felony where injury to persons or property results.
    O’Niell, O. J., and Overton and Land, JJ., dissenting in part.
    A. C. Dudley was convicted in the city court of Shreveport, and again on appeal in the district court, of driving a motor vehicle in an intoxicated condition, in violation of Act No. 132 of 1922, and also for driving a motor vehicle while under the influence of liquor, in violation of Ordinance No. 207 of_ the City of Shreveport, and he brings certiorari and prohibition.
    Decree in the first case annulled and set aside, and in the second ease affirmed.
    Crane & Snell, of Shreveport, for relator.
    Aubrey M. Pyburn, Asst. Dist. Atty., and James U. Galloway, Asst. City Atty., both of Shreveport, for réspondents.
   ST. PAUL, J.

Relator was tried, convicted, and sentenced in the city court of Shreveport for violating Act 132 of 1922, relative to driving a motor vehicle “while in an intoxicated condition;’’ and also for violating City Ordinance No. '207, relative to driving a motor vehicle “while under the influence■ of liquor.”

He then appealed to district court, where he was tried de novo, and again convicted in both cases.

Thereupon he moved to arrest both judgments ; and, his motion having been denied, he then applied to this court for writs of certiorari and prohibition.

I.

In the case under the city ordinance, his complaint is that said ordinance does not define the word “liquor” as used therein.

In City of Shreveport v. Smith, 130 La. 126, 57 So. 652, this court quoted with approval from 23 Cyc. pp. 57, 61 (now 33 Corp. Juris, 495), as follows :

“Liquor or Liquors. Either of these terms, standing alone, is too wide to have a precise legal signification, unless explained by the context or by necessary inferences from the subject-matter of the statute. When thus explained, however, the terms are commonly understood as including all varieties of intoxicating beverages, whether spirituous, vinous or malt.” (Italics ours.)

And we are of opinion that the term “under the influence of liquor’-’ has a well-recognized meaning with every one, which is exactly synonymous with the term “in an intoxicated condition.”

The ordinance therefore clearly sets forth what is forbidden; and the conviction under the ordinance must stand.

II.

In the case under the state law relator complains that the city judge was without jurisdiction to try him, for this, to wit, that Act 132 of 1922, making it a misdemeanor to operate- a motor vehicle while in an intoxicated condition, has been superseded by Act 78 of 1924, making it a felony to do so; and accordingly the offense charged is triable only by jury (of five) in the district court.

To this the state answers by contending that Act 78 of 1924 is unconstitutional and void, (a) because said act is broader than its title, (b) because _ said act is ambiguous and not capable of judicial construction; and accordingly that said Act 132 of 1922 remains in- full force.

(A) Our conclusion is that Act 78 of 1924 is not broader than its title. It is entitled:

“An act to amend and re-enact Act No. 132 of 1922, entitled ‘An act to make the operation of any motor vehicle of any nature whatsoever by any person, while in an intoxicated condition, a misdemeanor, and providing penalties for the violation of this act,’ and to repeal all laws or parts of laws in conflict herewith.”

The first and third sections of the act make no change in the act of 1922, merely declaring it “unlawful” to operate a motor vehicle while in an intoxicated condition,- and authorizing a revocation of license in case of a second offense. The first section provides no penalty.

The only effective change, if any, is in the second section thereof. The second section of the act of 1922 had made it a misdemeanor merely to operate a motor vehicle while in an intoxicated condition ; but the second section of the act of 1924 apparently provides no penalty whatever for merely operating such vehicle while in an intoxicated condition, and apparently does provide that whoever ghall operate such vehicle in an intoxicated condition, and in so doing causes injury to person or property, shall be guilty of a felony.

And if the act of 1924 be capable of such construction, then said act is not broader than its title. Eor the declared purpose of said act is to amend the act of 1922, and this has been carried out by so amending that act as to make that a felony which formerly was only a misdemeanor. ‘ We are clearly of opinion that an act which makes’ a felony of what had formerly been only a misdemeanor is not broader than the title thereof declaring that its purpose is to amend the act which formerly made such offense only a misdemeanor. And the fact that the new statute then punishes such offense only when some injury to person or property results therefrom, far from broadening said act, has, on the contrary, the effect of greatly narrotmng the body of the act, and thus bringing it still more within the title thereof.

(B) And it is our conclusion that Act 78 of 1924, even if somewhat ambiguous, is none the less capable of judicial construction, and is not only open to the construction which we have indicated above, but is actually capable of none other.

The section under consideration reads as follows:

“Section 2. That any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, and, or who shall cause injury to person or property,shall be guilty of a felony,” etc. (Italics ours.)

The expression and/or is quite .frequently used in contracts, hut we confess that this is the first time we have ever found it in a legislative act. When used in a contract, the intention is that the one word or the other may be taken accordingly -as the one or the other will best effect the purpose of the parties as gathered from the contract taken as a whole. In other words .such an expression in a contract amounts in effect to a direction to those charged with construing the contract to give it such interpretation as will best accord with the equity of the situation, and for that purpose to use either “and” or “or” and be hold down to neither.

Sueli latitude in contracts is, of course, permissible to individuals, wbo may contract as they please, but not so with a Legislature in making its laws; it must express its own will and leave nothing to the mere will or caprice of the courts, especially in the matter of punishing offenses.

In State v. Gardner, 151 La. 874, 880, 92 So. 368, this court quoted from United States v. Reese, 92 U. S. 220, 221 (23 L. Ed. 563), as follows:

“Every man should bo able to know with certainty when he is committing a crime. * *' * It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should he set at large.”

Now, therefore, if we'read the above-quoted section 2 retaining the “or,” and disregarding the "and,” we then have a statute which reads that—

“Any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, or who shall cause injury to person or property, shall be guilty of a felony, etc.”

Separating the two disjunctive clauses, we then find that (1) any one found guilty of operating a motor vehicle, of any nature whatsoever, while in 'an intoxicated condition, * * * shall be guilty of a felony, • etc.; and (2) any one found guilty of operating a motor vehicle, of any nature whatsoever, * * * who shall cause injury to person or property, shall be guilty of a felony, etc!

But manifestly it was not the intention of the Legislature to make a felon of any one who, in operating a motor vehicle, should cause injury to person or property, even though perfectly sober at the time; for the' very title of the act and again the first section thereof indicate that it meant to denounce and punish the operating of a motor vehicle only “while in an intoxicated condition.” Therefore the second of these disjunctive clauses would then have to be absolutely rejected, as being clearly not the legislative will.

But the first of these clauses might not be open to the same objection, to wit, that—

“Any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, * * * 'Shall be guilty of a felony,” etc.

Therefore there are but two readings of the section which can possibly accord with the declared legislative intent, to wit: (1) That “any one found guilty of operating' a motor vehicle, of any nature whatsoever, while in an intoxicated condition, * * * shall be guilty of a felony,” etc.; and (2) that “any one found guilty of operating a motor vehicle, of any „ nature whatsoever, while in an - intoxicated condition, and who shall cause injury to person or property, shall be guilty of a felony,” etc.

But the first of these two readings, by making it a felony merely “to operate a motor vehicle, * * * while in an intoxicated condition,” would necessarily include the case provided for in the second reading, to wit, making it a felony “to operate a motor vehicle, * * * while in an intoxicated condition, and cause injury to person__ or property.”

Hence, if we accept the first reading, the second reading becomes mere surplusage: and ultimately the section would read simply that—

“Any one found guilty of operating a motor vehicle of any nature whatsoever, while in an intoxicated condition, * * * shall be guilty of -a felony,” etc.

We have said that the words “or who shall cause injury to person or property,” not only may, but must, be expunged from the section in order to preserve the legislative intent.

But it is quite different with the words “and who shall cause injury to person or -property.” It these words be left in the section, they give it a meaning quite different from that which it has with these words left out. In the latter'case, it is made a felony merely to operate a motor vehicle while in an intoxicated condition; in the former, it is made a felony to operate a motor vehicle while in an intoxicated condition only when injury to person or property results therefrom.

But the Legislature put those words into the statute, and, since they cannot be omitted without affecting the legislative intent, it follows that they cannot be disregarded.

To sum up the whole matter: The section must read either and or or; it cannot read Tooth without being inconsistent with itself. If “or” be read, then the words “who shall cause injury to person or property” not only may but must be expunged to come within the legislative intent as expressed in the title and first section of the act. The word “or” must therefore .be expunged from the section as inconsistent .-with the expressed legislative intent.

On the -other hand, if “and” be read, the- omission of the words “and who shall cause injury to person or property” would materially alter the meaning of the section. And therefore, since the Legislature put the words into the section, and to omit them would change the legislative intent, it follows that the words cannot be disregarded.

Since, therefore, the word “or” must be expunged to accord with the legislative intent, and .the word “and” must be preserved to accord therewith, it follows that the “or” must be rejected and the “and” must be re- . tained; and accordingly the section must be read as follows:

“Section 2. That, any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, and who shall cause injury 'to person or property, shall be guilty of a felony and upon conviction therefor shall be fined in an amount not less than two hundred dollars ($200.00) nor more than one thousand dollars ($1,000.00) or imprisonment in tjie penitentiary for a term of not less than three months nor more than one year, or both at the discretion of the court.”

As the act of 1924 purports to and does amend and re-enact the act of 1922, it follows that the act of 1924 supersedes that of 1922, and that the act of 1922 is no longer in force.

The city judge has no jurisdiction to’ try for offenses under the act of 1924; and accordingly the conviction in the case under the state law must be set aside.

Decree.

The conviction and sentence in the ease of City of Shreveport v. A. C. Dudley are therefore affirmed, and the conviction and sentence in the case of State of Louisiana 'v. A. O. Dudley are therefore annulled and set aside, and the accused discharged therefrom.

OVERTON, J.,

concurs in decree, affirming conviction under city ordinance, but thinks the act of 1924 too vague to be 'held constitutional, and thinks that the act of 1922 is still in force. He therefore dissents from the decree setting aside the conviction obtained under the act of 1922.

LAND, J., concurs in above.

O’NIELL, C. J.

(concurring in the result). I agree that the city ordinance, forbidding a person under the influence of liquor to drive a motor vehicle, is plain .enough, without saying intoxicating liquor. No one could doubt that the expression “under the influence of liquor” means “under the influence of intoxicating liquor,” for that is the only kind of liquor that has the influence meant by the expression.

I agree also that the judge of the city court did not have authority or jurisdiction to try the defendant for a violation of the Act 132 of 1922, for operating a motor vehicle while he was in an intoxicated condition. Section 41 of article VII of the Constitution declares:

“Cases in which the punishment may bo at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict.”

Imprisonment at hard labor means imprisonment in the penitentiary. The Act 132 of 1922, as originally enacted, declared that any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, should be deemed guilty of a misdemeanor and be punished by fine or imprisonment in the parish jail. But the Act 78 of 1924, in unmistakable terms, declares that the Act 132 of 1922 is amended and re-enacted, so that any one found guilty of operating a motor vehicle, of any nature whatsoever, while in an intoxicated condition, “shall be guilty of a felony,” and be punished by either fine “or imprisonment in the penitentiary,” etc.

I am averse, though, to the rewriting or revising of this statute so as to say that it is not unlawful for an intoxicated person to drive a motor vehicle, unless he happens to injure some person or property’, in which event the intoxicated driver is guilty of a felony, subject to imprisonment in the penitentiary.

If the Act 132 of' 1922, as amended by the Act 78 of 1924, is so doubtful' or obscure in its meaning that it cannot be enforced, we ought to say so, and let the Legislature write the law anew. Article II of the Constitution reminds us that the state government is divided into three distinct departments, the legislative, the executive, and the judicial department and admonishes us that one department, or the officials in any one department, shall not exercise any function belonging to another department, except in such instances as are expressly directed or permitted by the Constitution.

It is conceded that the deleting of the word “or” will change the meaning of this statute. It is not contended that the writing of -the word “or” into the statute was accidental, or without a purpose. In fact, before we would finally consider this case in our consultation room, we obtained from the secretary of state a photograph of the original act on file in his office, and it shows that the act is printed as it was written and adopted, with the words “and, or.”

Section 16 of article III of the Constitution requires that évery act of the Legislature shall have a title indicative of its object. The title of the Act 78 oi 1924 is not at all indicative of its object, if its object was to amend the Act 132 of 1922 so as to make.it lawful for an intoxicated person to drive a motor vehicle, so long as he does not injure any person or property, and to make it a felony, subject to imprisonment in the penitentiary, if the intoxicated driver does happen to injure some one or some one’s property.

I concede that the phraseology of the Act 78 of 1924 is not artistic. Literally it means that it is unlawful for an intoxicated person to operate a motor vehicle, whether he does or does not thereby injure any person or property, and that it is unlawful also for a person operating a motor vehicle to injure any person or property, whether the operator be intoxicated or not intoxicated. That is what the Legislature has said. There is no occasion for us to decide, in this case, whether the statute is or is not so doubtful, or so drastic, that it should not be enforced. The conviction for the alleged violation of the statute is null in any event, because the judge of the. city court had not the authority or jurisdiction to try the ease. It the statute, as amended, is unenforceable, there is no authority for the prosecution; and, if the statute, as amended, is enforceable, the case is triable only by a jury of five members, in the district court. Therefore the rewriting of the statute, in the majority opinion, so as to make it lawful for an intoxicated person to drive a motor vehicle, so long as he does not thereby injure any person or property, was not at all necessary for a decision of the case. The decision in that respect is founded upon the supposition that was entertained by the district attorney and by the judge of the city court that, if .the statute, as amended, is so obscure and doubtful in its meaning that it cannot be enforced, we ought to unscramble the eggs and enforce the statute as it was originally enacted. That might be the consequence if the act of 1924 were an independent statute, purporting to repeal, and not to amend and re-enact, the act of 19£2, and if the new act were unconstitutional' or otherwise null. But the statute which we are trying to find the meaning of is the act of 1922, as amended and re-enacted in 1924. There is only one statute. If wo cannot find its meaning or give it effect, as it is, we have no authority to unamend it, so to speak, or to re-enact it as it was first enacted.

There are some expressions in the majority opinion rendered in this case which seem to be not consistent with the ruling that the amendment of the statute has made it lawful for an intoxicated person to operate a motor vehicle, so long as he does not thereby injure any person or property. Eor example, on the second page of the typewritten document, it is said:

“For the declared purpose of said act (of 1924) is to amend the act of 1922, and this has been carried out by so amending ¿hat act as to make that a felony which formerly was only a misdemeanor.”

What was formerly only a misdemeanor, under the act of 1922, was the operating of a motor vehicle by a person "in an intoxicated condition. I agree that that,has been made a felony by the amendment of the act; but I cannot reconcile that with the. idea that the amendment has made it lawful for an intoxicated person to operate a motor vehicle, so long as he does not injure any person or property.

On the third page of the original Qpinion, it is said, with regard to the 'use of both conjunctions “and” and “or,” in the alternative:

“Such latitude in contracts is, of course, permissible to individuals, who may contract as they please, but not .so with a Legislature in making its laws; it must express -its own will and leave nothing to the mere will or caprice of the courts, especially in the matter of punishing offenses.”

I cannot reconcile that doctrine with our taking the liberty of rewriting this statute, and, by expunging a word, giving the statute an effect which the Legislature did not intend it to have. I say that the Legislature did not intend that we should delete the word “or” and thereby make the amendment of the law such as to make it lawful for an intoxicated person to drive the motor vehicle, so long as he does not injure any person or property. The title of the amending act contains a copy of the amended act, declaring its purpose to be:

“To make the operation of any motor vehicle of any nature whatsoever by .any person while in an intoxicated condition a misdemeanor,” etc.

This title of the amended act was copied again in the first section of the amending act. There was not the slightest suggestion that the law was to be amended so as to make that lawful which was theretofore unlawful; that is, the operating of a motor vehicle by an intoxicated person, without injuring any person or property. Again, in the second paragraph of the amending act, the first section of the amended act is copied verbatim, viz.:

“Section 1. JBe it enacted by the Legislature of Louisiana, that it shall.be unlawful for any person, while in an intoxicated condition to operate any form of motor vehicle, whatsoever.”

What right have we to expunge a word from this amending act, and thereby convert it into the meaning that the act of 1922 is amended so as to read:

“That it shall be not unlawful for any person while in an intoxicated condition to operate any form of motor vehicle whatsoever—unless he injures some person or property.”

Again, on the fourth page of the majority opinion in this case, it is said that the very title of this amending act, as well as its first section, indicates that it was meant to denounce and punish a person for operating a motor vehicle only while in an intoxicated condition. Perhaps it was not meant to punish a person for injuring another, or another’s property, by the operating of a motor vehicle, unless the person operating the vehicle was in an intoxicated condition. But that conclusion would not justify our inverting the language of this statute so as to make it, lawful for an intoxicated p'erson to operate a motor 'vehicle, so long as he does not happen to injure any person or property.

The two justices who have dissented from the decree annulling the conviction under the statute have expressed the opinion that the act of 1924 is too vague to be held constitutional, and that the act of 1922 is still in force. I doubt that the act of 1922 would be revived in its original form if it should be declared so vague as to be unconstitutional in its* amended form. But, if the act of 1924 is so vague as to be unconstitutional, and if, therefore, the original act of 1922 is in force, the conviction and sentence for violation of the act of 1922 should be affirmed. That is the theory on which the district attorney and the judge of the city court proceeded in this case. The city court was without jurisdiction, and so was the district judge alone, if the act of 1924 is valid, because the act makes the offense punishable by imprisonment in the penitentiary, and therefore triable only by a jury of five members; and there was no authority for the prosecution if the statute, as amended, is not enforceable. Therefore I concur in the decree that the conviction for violation of the statute was illegal.  