State v. Rayburn
| Citation | 101 P. 1029,2 Okla.Crim. 413 |
| Parties | STATE v. RAYBURN. |
| Decision Date | 25 May 1909 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The provision of section 6109 of Wilson's Revised and Annotated Statutes of 1903 of this state, providing that it shall be the duty of the road overseer to file a complaint as therein provided against a person violating the provisions of section 6090, is directory only.
[Ed Note.-For other cases, see Highways, Dec. Dig. § 151 [*]]
The statute imposing compulsory labor upon persons residing in the several road districts of this state for the purpose of keeping the highways in repair, with the privilege of providing a substitute, or the payment of a stipulated sum in lieu of such personal services, is not a levying of taxes by the poll within the meaning of section 284, Bunn's Constitution of Oklahoma.
[Ed Note.-For other cases, see Highways, Dec. Dig. § 122. [*]
For other definitions, see Words and Phrases, vol. 6, p. 5446.]
Section 6090, which provides that all male persons between 21 and 50 years of age, who have resided 30 days in this (state) territory, who are capable of performing labor on public highways, and who are not a township or county charge, shall be liable each year to perform four days' work of eight hours each on the public roads, under the direction of a road overseer within whose district or ward they may reside, or furnish a substitute to do the same, or pay the sum of $1 per day to the road supervisor, etc., is in full force in this state, notwithstanding section 284 of Bunn's Oklahoma Constitution, which reads: "The Legislature may authorize the levy and collection of a poll tax on all electors of this state, under sixty years of age, not exceeding two dollars per capita, per annum, and may provide a penalty for the nonpayment thereof."
Error from Ellis County Court; A. E. Williams, Judge.
R. J. Rayburn was arrested upon a complaint filed in the county court charging him with willfully failing or refusing to perform road work as required by Wilson's Rev. & Ann. St. Okl. 1903, § 6090. The complaint was dismissed on motion of accused, and the state brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals. Reversed.
On March 10, 1908, complaint was filed in the county court of Ellis county against the defendant in error, who will hereinafter be referred to as "the accused," charging him with willfully failing or refusing to comply with section 6109, Wilson's Rev. & Ann. St. 1903, which reads as follows: ***" That on the 21st day of February, 1908, accused was a citizen and taxpayer of road district No. 2, in Ellis county, in this state, and that he was a person liable to perform work under the laws of the state of Oklahoma. That he was duly and lawfully notified as required by law, on the 21st day of February, 1908, to appear and commence the performance of such road work upon the roads in said district on the 25th day of February, 1908. That the accused willfully failed and refused to comply with said notice, by performing such work or furnishing a substitute therefor, and refused to pay in lieu of such work the sum of $1 per day, as provided by section 6090, Wilson's Rev. & Ann. St. 1903.
The accused was arrested upon said complaint, and, appearing in said court, filed the following motion: "Comes now R. J. Rayburn by his attorney, S. A. Miller, and moves the court to dismiss his cause, and says: That said complaint was not filed within the 10 days' statutory limit, as provided by the statute and laws of the state of Oklahoma." This motion was sustained, and the accused was discharged, to which ruling the state duly saved an exception. The county attorney of said county, in behalf of the state, filed a motion for a new trial, setting forth in substance: That the court erred in sustaining the motion of the accused to dismiss; that the court erred in holding that the provisions of section 6109, Wilson's Rev. & Ann. St., are words of limitation upon the right of the state to prosecute the accused for the crime set forth in the complaint; and that the court also erred in not holding that the statute of limitation applying to misdemeanors generally, which fixes the period of limitation at three years after the commission of the offense in which prosecution shall be commenced, applied to the case at bar. From the judgment of the county court discharging the accused, the state prosecutes error.
The appeal in this case was originally filed in the Supreme Court of this state, and was, upon the creation of the Criminal Court of Appeals, duly transferred to, and is now properly pending in, this court.
Wilson's Rev. & Ann.St.1903, § 6109, making one guilty of a misdemeanor who shall willfully fail to perform the road work required by section 6090, and making it the duty of a road overseer to file a complaint before a justice against such person within 10 days after such failure or refusal and providing that an overseer failing to file such complaint shall be guilty of a misdemeanor, does not limit the time within which right to file a complaint to such 10 days, that limitation being intended to compel vigilance on the part of the overseer and to make him liable for failure to file such complaint.
C. B. Leedy, County Atty., and W. C. Reeves, Asst. Atty. Gen., for the State.
Section 6090, Wilson's Rev. & Ann. St. 1903, reads as follows:
"All male persons between twenty-one and fifty years of age, who have resided thirty days in this territory, who are capable of performing labor on public highways, and who are not a township or county charge, shall be liable each year to perform four days work of eight hours each on the public roads, under the direction of the road overseer within whose district or ward they may respectively reside, or furnish a substitute to do the same, or pay the sum of one dollar per day to any road overseer, who shall receipt for the same and expend it in repairs on the public roads within his district or ward ***."
Section 6092 of said statute reads as follows: "Whenever it shall appear in consequence of sickness or absence from home, or from any other cause, that the road work aforesaid shall not be performed within the time specified in this act, or when the township board shall deem such work unnecessary, the overseer is hereby authorized to require the performance of such work at any time prior to the tenth day of November then next ensuing, and in case any person shall neglect or refuse to do four days work, or furnish a substitute, or pay the sum of one dollar per day, or plant the trees as provided by this act, or if any person shall appear at the proper time and place as directed by the overseer and neglect or refuse to do a reasonable day's work according to his ability, the road overseer shall certify all such delinquent road taxes to the county clerk, who shall place the same on the tax roll for collection, subject to the same penalties and to be collected in like manner as other taxes are by law collected, and the same when collected shall be paid to the road district from which collected, and be expended in improving the roads and highways therein."
The only defense made by the accused in the court below is stated in his motion to dismiss, in which he alleges that: For the reason that the prosecution against him was not commenced within 10 days from the expiration of the time limited in the notice requiring the accused to comply with the provisions of section 6090 of the Statutes of this state, the action is barred by said limitation, and therefore he could not be successfully prosecuted. It is therefore fair to assume that the accused was in all respects liable under said section 6090 for the performance of said labor or the furnishing of a substitute, or the payment of $1 per day as therein provided.
The first question, therefore, presented for our consideration is the proposition raised by said motion upon which the accused was discharged; the accused relying on that part of section 6109, which reads as follows: In order to arrive at an intelligent conclusion upon this proposition, it is necessary to carefully consider section 6092, above quoted, together with section 6090. It will be observed that section 6092 expressly provides that if a person liable for the performance of the work provided to be done under section 6090 fails to either perform the work, furnish a substitute or pay the $1 per day after being notified as the law requires, he can be prosecuted criminally under section 6109,...
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