State v. McGillic
| Citation | 141 N.W. 82,25 N.D. 27 |
| Parties | STATE v. MCGILLIC |
| Decision Date | 27 March 1913 |
| Court | North Dakota Supreme Court |
An appeal from the District Court for Morton County; Crawford Special J.
Reversed and case remanded.
Order vacated and annulled.
Andrew Miller, Attorney General, Alfred Zugar, F. C. Heffron, and C L. Young, Assistant Attorneys General, for appellant.
The crime of keeping and maintaining a common nuisance, as defined by the prohibition law of this state, may be committed by one who is in control of the building or place. Such person is in the same class as the "owner" or "agent," and is responsible. Jensen v State, 60 Wis. 577, 19 N.W. 374; 21 Am. & Eng. Enc. Law 1011-1014.
It is sufficient in law to constitute the offense, if it is permitted that a building be so used. Crofton v. State, 25 Ohio St. 249, 2 Am. Crim. Rep. 378; Mansfield v. State, Tex. Crim. Rep. , 24 S.W. 901.
B. W. Shaw, for respondent.
The statute is directed against the "owner," "agent," or "other person." Such "other person" must belong to the same class. The doctrine of ejusdem generis applies. State v. Prather, 79 Kan. 513, 21 L.R.A.(N.S.) 23, 131 Am. St. Rep. 339, 100 P. 57; 36 Cyc. 1119, 1120; State v. Campbell, 76 Iowa 122, 40 N.W. 100; State v. Stoller, 38 Iowa 321.
Penal statutes are not to be construed or extended so as to embrace, by implication, cases or acts not clearly within the prohibition of the statute. State v. Prather, 79 Kan. 513, 21 L.R.A.(N.S.) 23, 131 Am. St. Rep. 339, 100 P. 57; United States v. Wiltberger, 5 Wheat. 95, 5 L.Ed. 42.
Portions of the act not expressed or covered in its title are void. Const. § 61.
The state appeals from an order of the district court sustaining a demurrer to a criminal information. As our holding sustains the information under attack, it is set out in full, that it may constitute a form adjudicated as sufficient in prosecutions for such violations of chapter 193 of the Laws of 1907, as are sought to be covered thereby. The information reads:
Information.
H. R. Bitzing, state's attorney in and for said county of Morton and state of North Dakota, in the name and by the authority of the state of North Dakota, informs this court that heretofore, to wit, on the 3d day of May, 1910, and on divers other days and times between said date and the 1st day of December, 1910, at the city of Mandan, in the county of Morton, and state of North Dakota, one Patrick McGillic, late of the county of Morton and state aforesaid, did commit the crime of knowingly permitting a building to be used for the purpose of unlawful dealing in intoxicating liquors, in violation of chapter 193 of the Laws of North Dakota for 1907, committed in the manner following, to wit:
That at said time and place the said Patrick McGillic, being then and there the duly elected, qualified, and acting police commissioner of the city of Mandan, did unlawfully and knowingly permit a portion of building controlled by him, namely, a suite of rooms upstairs in the building known as "the Pioneer Block," and also known as "the McGillic and Olson Building," located in said city of Mandan, to be used as a place where intoxicating liquors were sold, bartered, exchanged, and given away as a beverage, and as a place where persons were permitted to resort and did resort for the purpose of drinking intoxicating liquors as a beverage, and as a place where intoxicating liquors were kept for sale, barter, exchange, and delivery as a beverage, in violation of chapter 193 of the Laws of North Dakota for 1907, and contrary to the statutes in such case made and provided, and against the peace and dignity of the state of North Dakota.
To this information a general demurrer is interposed "on the ground that the information does not state facts sufficient to constitute a public offense." Under this, respondent urges that the information is deficient in that it nowhere contains the words "owner" or "agent" of the statute defining the offense, nor does it charge that an owner or agent let any building for such purposes, or knowingly permitted such use; and that by alleging simply that the defendant "did unlawfully and knowingly permit a portion of a building controlled by him," and described, to be used for such purposes, it is insufficient to charge a crime under said chapter 193 of the Laws of 1907. He contends It is contended by respondent that the offense under this statute can only be committed by "the owner, agent, or other person belonging to the same class, who leased or let the building for the unlawful purpose, and cannot be committed by any such person who merely knowingly permitted the building to be used for such unlawful purpose; that the 'other person' in this statute is someone who has the same right to let the building for the unlawful purpose as the owner or the agent of the owner; that the doctrine of ejusdem generis applies."
We recite at length the foregoing argument of respondent. He has been diligent in bringing to the attention of the court many instances mentioned to emphasize his contention that the statute strikes at only an owner, or an agent of an owner, or a person in the same class possessing, as does such agent or owner, the presumed right or actual right to sublet.
In the construction of statutes the court must keep in the forefront the legislative purpose,--the reason which prompted the enactment. With a knowledge of this, and knowing what was intended to be covered, the statute should then be scrutinized in the light of such purpose, to determine whether it is broad enough, under a reasonable construction of it, to place the ban upon the acts intended by the legislature to be condemned. Accordingly, we should now determine the reason for the act, and what it was sought to remedy thereby, and whether under a reasonable construction the legislation embraces the matters intended to be covered.
We find that chapter 193 of the Laws of 1907 was obviously enacted to supplement § 9373 of the Revised Codes of 1905, and other portions of our so-called prohibition law. It particularly supplements the common-nuisance feature of the old law. That law is aimed primarily at a place wherein is permitted the commission of acts violative of the prohibition law, the statute condemning the place of the violations by declaring it to be a common nuisance. The person in control or charge, whether temporarily or continuously, is the keeper of such nuisance and the person punishable for its maintenance. And in prosecutions under the prohibition laws it is a well-known fact, of which the court may take judicial notice as a matter of common knowledge, "known to all men of ordinary understanding and intelligence." , that under the law prior to chapter 193 the owner might lease to a tenant or permit an occupant to use, control, and occupy a place wherein a nuisance might be maintained by such lessee, occupant, or person in control, without the owner being criminally liable, unless the state could prove such facts as would render the owner liable as a joint principal in the unlawful business. And proof of mere letting, leasing or permitting of a tenant or occupant to occupy premises, with proof that the place is conducted as a common nuisance by the tenant, was insufficient alone to fasten criminal responsibility upon the landlord, even though he had actual knowledge of the use to which the leased premises were put so long as the landlord did no overt act toward the conduct of the tenant's unlawful business. The mere leasing a building, knowing that it may be so used, did not render the owner criminally liable. To bring criminal responsibility home to an owner, agent, or any other person having the right to sublet, and who, with knowledge that the place to be leased or occupied was to be used as a common nuisance, leases to a tenant premises to be so used, or otherwise permits its use for such unlawful purpose, was the object sought by and the purpose for the enactment of this statute. Clearly the legislature had in mind the wrong in the owner escaping criminal liability in leasing his property for such nefarious purposes, and by this legislation has manifested an intent to bring ...
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