Hankins v. People of State

• Decision Date: 16 June 1883
• Citation: 106 Ill. 628,1883 WL 10254
• Parties: GEORGE HANKINSv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

106 Ill. 628

1883 WL 10254 (Ill.)

GEORGE HANKINS

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Jun. 16, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Criminal Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. EMERY A. STORRS, for the plaintiff in error:

The fine provided by the statute in this class of cases is “not less than $100.””” Rev. Stat. (Cothran's ed.) Crim. Code, sec. 127, p. 470.

This being a penal statute, it must be strictly construed. Rapplee v. Morgan, 2 Scam. 551; Edwards v. Hill, 11 Ill. 23; Chapman v. Wright, 20 Id. 120; Frees v. Tripp, 70 Id. 496; Albrecht v. The People, 78 Id. 510; Hall v. State of Ohio, 20 Ohio, 7; United States v. Storr, 1 Hemp. 469; Ferritt v. At well, 1 Blatchf. 151; Bettis, Admr. v. Taylor, 8 Porter, 564; Andrews v. United States, 2 Story, 202.

The fine provided for such cases as this being “not less than $100,” it is a penalty of $100 and no more. Stinson v. Pond, 2 Curtis' C. C. (Mass.) 502.

The lower court, by imposing a much heavier fine,--$250 and costs,-- transcended the limit conferred by the statute. The court therefore erred, and the judgment should be reversed. Fitzgerald v. State, 4 Wis. 395; Harvey v. State, 5 Id. 529; Taylor v. State, 35 Id. 298.

All such statutes are to receive a strict construction, and can not be extended to embrace cases not named, or to increase the punishment. United States v. Morris, 13 Pet. 464; United States v. Wiltberger, 5 Wheat. 76; United States v. Sheldon, 2 Id. 114; Potter's Dwarris on Statutes, 128, 144; King v. Burrill, 12 Ad. & Ell. 468; Lamond v. Effie, 3 Q. B. 910; Everett v. Mills, 4 Scott's N. C. 531; Green v. Wood, 7 Q. B. 178; Samuel v. Nettleship, 3 Id. 188; “ The Enterprise,” 1 Paine, 32; Chase v. New York Central R. R. Co. 26 N. Y. 523; In re Powers, 25 Vt. 265; Water Vliet Turnpike Co. v. McKean, 6 Hill, 616; Melody v. Reab, 4 Mass. 473; Rapplee v. Morgan, 2 Scam. 563.

Original jurisdiction in all cases of misdemeanor, when the punishment is by fine only, not exceeding $200, is conferred upon justices of the peace. Rev. Stat. (Cothran's ed.) Crim. Code, sec. 381.

By act of legislature, authority is conferred upon the city of Chicago (sec. 45, art. 5, Municipal Code, p. 21,) “to suppress gaming and gambling houses.” Section 1307, article 23, ordinances of the city of Chicago, page 309, provides for just such cases as this.

The defendant having been acquitted under this ordinance, can not be again put upon trial for the same offence. Berry v. People, 36 Ill. 423; Houston v. Moore, 1 Wheat. 1. Mr. LUTHER LAFLIN MILLS, State's Attorney, and Mr. W. E. LEFFINGWELL, for the People:

The statute has changed the common law rule that a penal statute must be strictly construed. Rev. Stat. chap. 131, sec. 1. See, also, Robbins v. People, 95 Ill. 176; Stevens v. People, 67 Id. 588.

All penalties shall be proportioned to the nature of the offence. Const. 1870, art. 1, sec. 11.

Circuit courts shall have original jurisdiction of all causes at law and in equity. Const. 1870, art. 6, sec. 12.

The legislature may create two or more offences, which may be committed by a single act, each of which is punishable by itself. Wragg et al. v. Penn Township, 94 Ill. 23.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The indictment in this case was for keeping a gaming house, contrary to the provisions of the statute. Section 127 of the Criminal Code is as follows: “Whoever keeps a gaming house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures, or permits any persons to frequent or come together to play for money or other valuable thing at any game, or keeps, or suffers to be kept, any tables or other apparatus for the purpose of playing at any game or sport for money or other valuable thing, or knowingly rents such place for such purpose, shall, on conviction, for the first offence, be fined not less than $100, and for the second offence be fined not less than $500, and be confined in the county jail not less than six months, and for the third offence shall be fined not less than $500 and be imprisoned in the penitentiary not less than one year and not more than five years.” On being tried in the Criminal Court of Cook county, plaintiff in error was convicted, and fined $250. The case was removed to the Appellate Court for the First District, and the judgment was affirmed, and the record is brought to this court on error. Various objections are urged. It is first insisted, that under the statute the Criminal Court exceeded its jurisdiction by imposing a fine of more than $100. It is claimed that sum is the amount of the fine fixed by the statute, and the court is powerless to exceed that amount on such a conviction; that under the canons of construction the section must be read as though it said $100, and no more; that such statutes must be strictly construed, and therefore no greater amount than that sum could be imposed. The doctrine of strict construction in cases of penalties has been long and uniformly established in this court. Wilson v. Ohio and Mississippi R. R. Co. 64 Ill. 542, Edwards v. Hill, 11 Id. 22, Erlinger v. Boneau, 51 Id. 94, Chicago and Alton R. R. Co. v. The People, 67 Id. 11, Chicago and Northwestern R. R. Co. v. Stanbro, 87 Id. 195, Raplee v. Morgan, 2 Scam. 561, Chapman v. Wright, 20 Id. 120, Freese v. Tripp, 70 Id. 496, Albrecht v. The People, 78 Id. 510, and many other cases not necessary to be referred to, as this is the doctrine of this court, independent of the reported cases of other courts. The doctrine is so elementary and well recognized that it does not need other authorities for its support.

This court has, in two cases heretofore before us for decision, affirmed judgments for fines of more than $100 on convictions under this section. (See Robbins v. The People, 95 Ill. 175, and Stevens v. The People, 67 Id. 587.) It is true in neither of those cases was the question under consideration presented or discussed, but they are referred to as showing this question is not so obvious as to have attracted the attention of counsel arguing those cases. Although the rule of strict construction obtains in this class of cases, it must not be so strict as to defeat the intention of the legislature. This is forbidden by the first section of the chapter entitled “Statutes.” It provides that “all general provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may be fully carried into effect.” This rule of construction is, in express terms, made applicable to all laws then or since in force. This provision requires a liberal construction to effectuate the purpose of the legislature, but it does not require the court to bring cases of a like nature, not named in terms or by clear implication, into the statute, nor to give a narrow and restricted meaning to the language employed, but to fairly and reasonably carry out the intention of the legislature, as gathered from the entire provision or enactment.

We are, then, required to determine, from the language of the section, whether it was the purpose of the legislature to limit the fine for a first offence to no more than $100. As a general rule, the exclusion of one subject or thing is the inclusion of all other things. When the legislature, in this case, excluded the power of the court to impose a fine of less than $100, it, by implication, authorized the exercise of power to impose a fine for more than that sum. It fixed the minimum, but fixed no maximum. Had there been an intention to fix that sum as the limit, both as a minimum and maximum, it appears almost incredible that no language was employed to manifest the intention, especially so, when, in the same section, in fixing the penalty for a repetition of the same offence by confinement in the penitentiary, a minimum and a maximum were prescribed. It therefore appears that the fixing of a penalty for the first offence, in omitting to limit it to not more than $100, was not from inadvertence or mistake, but was intentional, and if so, it must have been designed to authorize a fine of more than $100 for the first offence. It would, however, not be strained construction to say that for the first offence there is a limit. The legislature evidently regarded a second offence as graver than the first, because the minimum fine for it is fixed at $500, and imprisonment for not less than six months in the county jail. It is, then, reasonable to infer that it was not intended the fine for a first offence should be more than that of the second and greater offence. It would be unreasonable to suppose the legislature designed to confer power on the court to punish more severely for the lesser than it might for a greater offence.

On this question of construction of the section under consideration we receive but little aid from adjudged cases. In the case of Drake v. The State, 5 Texas App. 649, a defendant was indicted and tried for murder, and the jury found him guilty of murder in the second degree, and fixed his term of service in the penitentiary for life. The statute provided that in such cases the person so convicted should be confined in the penitentiary not less than five years, without fixing a maximum limit. In the opinion of the court affirming the judgment it is said, it was urged that the punishment was too severe, but the court did not allow the objection. In the case of Childs v. The State, 2 Texas App. 36, a woman was convicted for murder in the second degree, and sentenced, on the verdict of the jury, to confinement in the penitentiary for the period of sixty years, and the judgment was affirmed. Thus it seems that the power to extend punishment beyond and greatly above the minimum term fixed by the statute seemed so obvious to both ...