State ex rel. Pincock v. Franklin

• Decision Date: 06 May 1924
• Docket Number: 4060
• Citation: 226 P. 674,63 Utah 442
• Court: Utah Supreme Court
• Parties: STATE ex rel. PINCOCK, Sheriff, v. FRANKLIN et al

226 P. 674

63 Utah 442

STATE ex rel. PINCOCK, Sheriff, v. FRANKLIN et al

No. 4060

Supreme Court of Utah

May 6, 1924

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Proceeding by the State, on the relation of H. D. Pincock, Sheriff of Weber County, against J. P. Franklin and others. Judgment for relator, and defendants appeal.

ANNULLED in part, and AFFIRMED in part.

Chez & Douglas, of Ogden, for appellants.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for respondent.

GIDEON J. THURMAN, FRICK, and CHERRY, JJ., and RITCHIE, District Judge, concur. WEBER, C. J., did not participate.

OPINION

GIDEON, J.

The appellants, defendants below, were charged by the complaint with maintaining a common nuisance in Weber county, in this state. The premises upon which it is alleged the nuisance was maintained are described by metes and bounds in the complaint. The suit is a proceeding in the name of the state upon relation of a citizen of the state, in this case the sheriff of Weber county.

The court made findings and entered judgment against the defendants. The findings support the judgment. The judgment is to the effect that:

"It is hereby ordered, adjudged and decreed, that the defendants, and each of them, and their agents and employees be and they are hereby enjoined and restrained from using those premises, commonly known and designated as No. 1535 Twenty-Fourth street, in Ogden City, Weber county Utah, for any purpose for the period of one year, beginning this date, that said premises and all buildings thereon be, and they are hereby closed for the period of one year for any and all purposes; that the said defendant, and each of them be, and they are hereby permanently enjoined and restrained from maintaining a common nuisance within this judicial district.

"It is further ordered, adjudged and decreed, that the defendant J. P. Franklin pay to the state of Utah, a fine in the sum of $ 1,000.00 and that he be imprisoned in the county jail of Weber county, state of Utah, for six months."

The appeal is from the judgment as entered.

The nuisance complained of is defined in Comp. Laws Utah 1917. So far as material, section 3350 is as follows:

"All premises, buildings, vehicles, boats, and all other places where intoxicating liquors are manufactured, sold, bartered, kept, stored, or given away, or used in violation of law, or where persons are permitted to resort for the drinking of intoxicating liquors as a beverage, or where intoxicating liquors are kept for use, sale, barter, or delivery, in violation of law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars, and other property kept in and used in maintaining such premises, buildings, vehicles, boats, or other places, are hereby declared to be common nuisances."

Section 4276 is as follows:

"Whenever a nuisance is kept, maintained, or exists, as defined in this title, the county attorney or any citizen of the county may maintain an action in equity in the name of the state of Utah, upon the relation of such county attorney or citizen, to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building or ground upon which said nuisance exists. * * *"

Section 4282 is as follows:

"Whenever a permanent injunction issues against any person or persons for maintaining a nuisance as herein provided for, or against any owner or agent of the building kept or used for the maintenance of such nuisance, all parties found guilty of maintaining such nuisance, or assisting to maintain such nuisance by furnishing or letting such building for the maintenance of such nuisance or otherwise, shall be punished by a fine of not more than $ 1,000, or by imprisonment in the county jail not more than six months, or by both fine and imprisonment. Said money fines and costs of action shall be a perpetual lien upon all property, both personal and real, used for the purpose of maintaining said nuisance, and the payment of said fines shall not relieve the person or persons from any other penalties provided by law. The collection of said fines or lien shall be effected in the same manner as provided for the collection of taxes on real estate."

There are three appellants; each has filed separate assignment of errors. Appellants are all represented by the same counsel.

After the appeal had been perfected and the records sent to this court, counsel filed with the clerk the following stipulation:

"Whereas, the above-entitled case is to be argued on appeal at the February term of court and the constitutionality of title 74 of the Compiled Laws of Utah 1917, and particularly section 4282 thereof is being assailed upon said appeal; and

"Whereas, counsel for the state is willing to concede that said section 4282 is invalid only in so far as it attempts to confer jurisdiction upon a court of equity to impose a penalty of imprisonment upon the defendant:

"Now, therefore, it is hereby stipulated and agreed by and between the parties hereto and their respective counsel, that so far as counsel are concerned, the argument on appeal and the questions to be considered therein may be confined and limited to the question of the constitutionality of title 74 of the Compiled Laws of Utah 1917, and particularly, section 4282 thereof, it being expressly agreed that neither party hereto waives his argument with respect to the matter of the constitutionality of said title and section hereinbefore referred to."

By the foregoing stipulation the Attorney General in effect concedes that the provision of section 4282, supra, authorizing the imposition of a jail sentence in an equity proceeding, is beyond the power of the court to enforce and is contrary to the provisions of our Constitution. Without pausing here to consider that question, or the provisions of the Constitution relied upon, it is sufficient to say that we are satisfied that the provision of section 4282 authorizing the court in equity proceedings to impose a jail sentence cannot be sustained either on principle or when considered in connection with the provisions of article 1, §§ 10 and 12, of the Constitution of Utah.

The discussion in the briefs and at the oral argument took a wide range, and included certain phases of the controversy that we deem not controlling nor necessary to a determination of the rights of the parties on this appeal. As we understand the claim of counsel, both of appellants and respondent, the legal questions presented for determination may be stated as follows: (a) Can the statute respecting the power of the court to impose a fine be sustained after eliminating its power to impose a sentence of imprisonment? (b) Is the provision of the section quoted authorizing the imposition of a fine in an equity proceeding beyond the power of a court in such proceeding or prohibited by the Constitution?

The first proposition presents no difficulty. The general rule of interpretation in such cases is stated in Sutherland, Statutory Construction, § 169, as follows:

"Where a part only of a statute is unconstitutional, and therefore void the remainder may still have effect under certain conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject-matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the Legislature would have passed one without the other. The constitutional and unconstitutional provisions may even be expressed in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point or test is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance.

"If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so inseparably connected that they cannot be divided without defeating the object of the statute. And the converse is true. The vicious part must be distinct and separable, and, when stricken out, enough must remain to be a complete act, capable of being carried into effect, and sufficient to accomplish the object of the law as passed, in accordance with the intention of the Legislature. It should be confined to the same limits and still subject to the intended qualifications."

Analyzing the statute quoted, it is at once apparent that the elimination of the clause authorizing the imposition of a sentence of imprisonment does not destroy or affect the other provisions of the section. Neither are the parts of the statute so dependent upon each other for their meaning that it can be presumed that the Legislature would not have passed one without the other. The first query should therefore be answered in the affirmative.

Passing now to the second proposition: It is argued by appellants' counsel that the fine authorized by the statute is for an act punishable by law, and the imposition of a fine results, and must necessarily result, from criminal proceedings. Such being the fact, the appellant was entitled to a jury trial and the enforcement of the provision is beyond the power of a court in equity proceedings. On the other hand, it is the contention of the Attorney General that the fine authorized by the statute is not the result of a criminal proceeding but is a penalty imposed on the law-breaker in the nature of a tax. It is argued that the language of the statute clearly indicates such legislative intent.

As a...