Ex parte Cain
| Decision Date | 03 February 1908 |
| Citation | 93 P. 974,20 Okla. 125,1 Okla.Crim. 7,1908 OK 9,1908 OK CR 3 |
| Parties | Ex parte CAIN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The word "imprisonment," in its ordinary sense contemplates and means within the common jail, rather than in the penitentiary.
[Ed Note.-For other definitions, see Words and Phrases, vol. 4 pp. 3445-3447.]
The offense of manufacturing, selling, bartering, giving away, or otherwise furnishing any intoxicating liquor of any kind including beer, ale, and wine, contrary to the provisions of the prohibition article of the Constitution, is a misdemeanor.
The maximum punishment for said offense is by imprisonment in the county jail not exceeding one year, and by fine not exceeding $500.
The prohibition provision in the Constitution prohibiting the manufacture, sale, barter or giving away of any intoxicating liquors, including ale, beer, and wine, contrary to said provisions is valid and self-executing.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors,§§ 21-23.]
Petition by Jim Cain for writ of habeas corpus. Writ denied.
F. E. Riddle, for petitioner.
W. C. Reeves, Asst. Atty. Gen., and J. D. Carmichael, Asst. Co. Atty., for respondent.
The petitioner in this case was tried in the county court of Grady county, sitting as such and exercising the jurisdiction of a county court of the state of Oklahoma, on the 11th day of January, 1908, and adjudged guilty of the crime of selling intoxicating liquor, and is now confined in the jail of said county in the custody of M. B. Louthan, sheriff of said county, under a commitment duly issued out of said court by virtue of said adjudication. The information made against said petitioner, and on which he was convicted, is in due form, and charges that the said petitioner "at and within said county and state on the 23d day of November, 1907, then and there being, did then and there willfully and unlawfully sell to one Emmett Ades intoxicating liquors, to wit, one-half pint of whisky, for a price unknown to the affiant, contrary to the form of the statute," etc. This cause is now properly before this court on writ of habeas corpus; the petitioner contending that said county court was without jurisdiction to try said cause or to sentence said petitioner under said conviction, and for the reason of said want of jurisdiction that he is now unlawfully restrained of his liberty by said sheriff.
***" Prohibition article of the Constitution. Counsel for petitioner earnestly contends that the offense charged is a felony, and that, the county court having no jurisdiction of felonies, the judgment rendered in said court adjudging said defendant guilty of said charge is absolutely void. The retail liquor traffic is a mere privilege, and, in defining the extent to which the privilege goes, the law should be strictly construed against the traffic. Schmidt v. State, 14 Mo. 137. That the state in the exercise of its police powers has the right to prohibit the manufacture and sale of intoxicating liquors is no longer an open question. Bartemeyer v. Iowa, 85 U.S. 129, 21 L.Ed. 929; Boston Beer Co. v. Massachusetts, 97 U.S. 33, 24 L.Ed. 992; Foster v. Kansas, 112 U.S. 205, 5 S.Ct. 8, 97, 28 L.Ed. 629; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.
But is said provision self-executing? If not, the statutes of Oklahoma Territory relative to the licensing of the liquor traffic are still in force, and will so remain until statutory provisions are enacted to make said prohibition provision effective. C. & F. R. Co. v. Trout, 32 Ark. 17; Lamb v. Lane, 4 Ohio St. 167; Doddridge v. Stout, 9 W. Va. 703; Chahoon v. Commonwealth, 20 Grat. (Va.) 733. The doctrine is well settled that, as a rule, negative or prohibitory clauses in a Constitution are self-executing. Law v. People, 87 Ill. 385; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3; De Turk v. Commonwealth, 129 Pa. 151, 18 A. 757, 5 L. R. A. 853, 15 Am. St. Rep. 705; State v. Woodward, 89 Ind. 110, 46 Am. Rep. 160. If it supplies the rule for enforcement and fixes the penalty for violation, there can be no doubt as to its character; but a provision may sometimes be both prohibitive and mandatory, and not self-executing; hence in such cases it always becomes a question of intention, and to determine the intent the rule is courts will consider the language used, the object to be accomplished by the provision, and the surrounding circumstances, and to determine these questions from which the intention is to be gathered courts will utilize extrinsic matters when it becomes necessary. Even though there may be no penalty attached for violations of constitutional provisions, it does not necessarily imply that the provision is not self-executing. The want of a penalty, however, is a circumstance which should be given great weight in determining as to whether or not the same is self-executing, though it is not conclusive. The proper rule is that prohibitive and restrictive provisions are self-executing when they may be enforced by the courts independent of statutory enactments.
The next thing to determine is whether or not a penalty has been prescribed for such violation. Was it the intention that the words "shall be punished on conviction thereof by fine of not less than fifty dollars and by imprisonment of not less than thirty days for each offense," should be a limitation upon the action of the Legislature, or prescribe a penalty that was immediately enforceable in the courts? The same provision states; "Upon the admission of this state into the Union this provision shall be immediately enforceable in the courts of the state." The rules of construction should be so applied to written Constitutions as to give effect, if possible, to the intent of the framers and of the people who have adopted it, and to promote the objects for which the same was framed and adopted. But it may be contended, if we adopt the literal words of this provision that, whilst it is stated that the same shall be immediately enforceable, yet we find no maximum punishment provided, and that consequently the same is not a complete criminal statute without such definite provision, and that, therefore, it is not enforceable without additional legislation to give it effect. A statute providing a minimum, without fixing the maximum, punishment, is neither invalid as being in violation of section 9, art. 2, of our Constitution, nor as being too vague and indefinite to be enforced, at least as to the minimum punishment which is valid without additional enactments. State v. Fackler, 91 Wis. 419, 64 N.W. 1029; State v. Williams, 77 Mo. 310. Hence it is not necessary, in considering as to whether or not said provision is self-executing, to determine as to whether or not punishment in excess of 30 days' imprisonment and $50 fine under said prohibition provision incorporated in our Constitution, without further legislation, could be imposed; for, having determined that said prohibitory provision prescribed an enforceable minimum punishment, we necessarily conclude that said provision, as it appears in said Constitution, is self-executing. Section 13 of the enabling act provides as follows: "That said state, when admitted as aforesaid, shall constitute ***; and that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof." Also section 2 of the schedule of the Constitution reads as follows: "All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union which are not repugnant to this Constitution and which are not locally inapplicable shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law." Section 1935, Wilson's Rev. & Ann. St. Okl. T. 1903, being section 14, art. 1, c. 25, is as follows: "Except in cases where a different punishment is prescribed by this Code or by some existing...
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