In 1939, 1939 Session Laws, Chapter 222, page 465, the legislature enacted what is known as the "Idaho Liquor Act." It authorized the dispensary to buy, import, transport, store and sell alcoholic liquor and to establish, maintain and operate liquor stores in this state for the exclusive sale (in original packages) of alcoholic liquor under the provisions of the Act. So far as material here, Section 902 of the Act provided, and provides:
"Unlawful Manufacture, Traffic in, Transportation, and Possession of Liquor. Except as authorized by this act, any person who shall have in possession, manufacture, transport, purchase, sell, or dispose of any alcoholic liquor shall be guilty of a misdemeanor, and upon conviction shall be punished as otherwise provided by law. * * *"
September 4, 1945, a criminal complaint was filed in the Probate Court of Benewah County, charging, under that Act:
"The said Helen I. Mollendorf on or about the 1st day of September, A.D., 1945, at and in the County of Benewah, State of Idaho, she then and there being did then *Page 158 and there knowingly, willfully, intentionally, unlawfully have in her possession, transport, sell and dispose of alcoholic liquor, to-wit: Whiskey, and did then and there sell and dispose to one Quintin E. Sampont, a quantity of spirits and alcoholic liquor, to-wit: whiskey contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Idaho."
A warrant of arrest was thereupon issued out of said probate court and placed in the hands of the sheriff of Benewah County for service. Pursuant to the warrant, the sheriff arrested the accused and took her before the probate judge of that county, where, being advised of her rights, she pleaded guilty to the charge set forth in the above quoted criminal complaint and, being further advised she was entitled to twenty-four hours before sentence could be pronounced against her, unless she decided to waive such time, asked the court to pronounce judgment at once. Accordingly, the court rendered and entered the following judgment:
"Whereupon, the court being advised in the premises finds that you, Helen I. Mollendorf, are guilty of the charge ofunlawful traffic in alcoholic liquor (emphasis added) as you have confessed you are guilty, and it is the Judgment and Sentence of this court that you pay a fine of $250.00 and that you further pay the costs and disbursements of this action, assessed in the sum of $5.40, and that in lieu of payment of such fine and costs, that you be confined in the Benewah County jail one day for each $2.00 of said fine and costs until the same have been fully paid."
November 8, 1945, accused filed a petition in the District Court of the Eighth Judicial District of the State of Idaho for a writ of habeas corpus. In substance and effect, petitioner alleged that the sheriff arrested her at her place of business; that he then induced "her to drink, a large quantity of intoxicating liquor known as whiskey;" that he "took her to St. Maries before the said probate judge, and induced her to plead guilty to the complaint;" "that thereupon a judgment of the court (referring to the judgment above quoted) was rendered and pronounced;" that she gave the probate judge her personal check for $255.40 in payment of the judgment and that the probate judge accepted the check in satisfaction of the judgment; that the complaint "charged no criminal violation and that the judgment found her guilty of no criminal act;" that she stopped payment upon the check; that she was unlawfully imprisoned and restrained of her liberty in the county jail at St. Maries, County of Benewah, State of Idaho, by Mansfield Shepherd, sheriff of that county; that such imprisonment was illegal; that the jurisdiction of the probate court had been exceeded.
Pursuant to said petition, Honorable Oliver C. Wilson, judge of the said district court, ordered the issuance of a writ of habeas *Page 159 corpus, returnable before Honorable A.L. Morgan (judge of the Second Judicial District), designated to act in the matter for the said judge of the Eighth Judicial District, at the courtroom of said court in the county courthouse in Coeur d'Alene, Kootenai County, State of Idaho, on the 16th day of November, 1945, and on the same day, and pursuant to said order, a writ of habeas corpus issued in the usual form. November 14, 1945, sheriff Mansfield Shepherd made a return on the writ that he held petitioner as a prisoner under and by virtue of said judgment and commitment issued pursuant thereto. November 16, 1945, the matter was heard, at which time the sheriff produced petitioner in court. December 15, 1945, Judge Morgan rendered and entered the following order:
"* * *
"It appears to the Court that Helen I. Mollendorf was illegally imprisoned and detained by you.
"You are therefore commanded not to interfere with or detain the said Helen I. Mollendorf further upon process and matters set forth in her petition, and Helen I. Mollendorf is unconditionally released from further imprisonment."
The appeal to this court is from the order.
At the outset it should be stated the record very clearly discloses the charges made by the petitioner against the sheriff (as well as other officials) are groundless. The decisive question presented on this appeal, is: Was the petitioner illegally imprisoned, as found and adjudged by the trial court?
It will be noted Section 902, supra, was given the subhead: "Unlawful Manufacture, Traffic in, Transportation, and Possession of Liquor." This court held in State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649, 653, that:
"`The purpose of the title of a statute is to indicate to the lawmaker, and the citizen as well, the character and subject-matter of the legislation proposed by the act.'"
That, of course, also applies to the subhead of a section. Hence, the subhead indicated only, and quite properly, the subject matter of the legislation proposed by the section.
"`* * * The subject of a statute is one thing, and its detailed provisions quite another. One is the topic, the other its treatment; one is required to be stated in the title, the other is not.'" State v. Dolan, 13 Idaho 693, 702, 92 P. 995,997, 14 L.R.A., N.S., 1259.
The subject of the proposed legislation indicated by the above quoted subhead was liquor. In legislating upon that subject, the legislature created several separate and independent public offenses. It made it unlawful to either possess intoxicating liquor, manufacture intoxicating liquor, *Page 160 transport intoxicating liquor, purchase intoxicating liquor, sell intoxicating liquor, or dispose of intoxicating liquor, except as provided in the act. It did not create any other or additional public offense.
Futhermore, how could, for instance (as held in the majority opinion), the mere possession of alcoholic liquor constitute "an exchange of goods?" In other words, how could mere possession constitute an "exchange of alcohol"? And, further, just how could mere possession constitute the "business of bartering, or buying and selling" alcoholic liquor? Surely, the legislature should be credited with having more common sense than to have understood it would.
That brings me to a consideration of the above quoted complaint. It charged, with minute particularity, a sale of whiskey by petitioner to one Quintin E. Sampont. She does not contend the complaint did not fully advise her she was so charged. On the contrary, she insists the complaint did fully advise her she was charged with a sale of whiskey to Sampont and, further, that that is the charge to which she pleaded guilty, but that notwithstanding the fact she was so charged with a sale of whiskey to Sampont, and not with "unlawful traffic in alcoholic liquor," the probate judge found her guilty of "unlawful traffic in alcoholic liquor," as the above quoted judgment of the probate court shows. Hence, that such judgment is not supported by written accusation or complaint as required by Section 19-4001, I.C.A. The order appealed from should be affirmed.
MILLER, J., authorizes me to say he concurs in this dissent.