State v. Reps

• Citation: 223 N.W.2d 780,302 Minn. 38
• Decision Date: 01 November 1974
• Docket Number: No. 44125,44125
• Parties: , 78 A.L.R.3d 548 STATE of Minnesota, Plaintiff, v. Raymond REPS, Defendant.
• Court: Supreme Court of Minnesota (US)

Page 780

223 N.W.2d 780

302 Minn. 38, 78 A.L.R.3d 548

STATE of Minnesota, Plaintiff, v. Raymond REPS, Defendant.

No. 44125.

Supreme Court of Minnesota.

Nov. 1, 1974.

Syllabus by the Court

1. This court may review and determine questions certified to it pursuant to Minn.St. 632.10 regardless of a prior trial court ruling. The interests of the parties and their opportunity to address the legal issues are the same as if a ruling had preceded the certification or an actual appeal had been pursued.

2.--7. Minn.St. 514.02 is not unconstitutional: (a) as repugnant to Minn.Const. art. 1, § 12, prohibiting imprisonment for debt; (b) as a denial of due process, of equal protection of the laws, or of other constitutional guarantees, or (c) on the basis that it creates an invalid presumption.

William A. Lindquist, Winona, for defendant.

Warren Spannaus, Atty. Gen., Curtis D. Forslund and Jonathan H. Morgan, Sols. Gen., Robert F. Carolan and Kenneth E. Raschke, Jr., Spec. Asst. Attys. Gen., St. Paul, Jerome A. Schreiber, County Atty., Lake City, for plaintiff.

Heard before KNUTSON, C.J., and PETERSON, KELLY, TODD, and SCOTT, JJ., and considered and decided by the court en banc.

KELLY, Justice.

In the summer of 1971, defendant entered into a written agreement with Margaret Splittstoesser whereby defendant agreed to make certain improvements on the Splittstoesser property for a contract price of $2,561. After defendant had begun performing under the contract, Splittstoesser paid him $2,300 on account in three payments. In December 1971, mechanics liens for supplies used by defendant were filed against the Splittstoesser property by various materialmen.

Defendant was subsequently charged, pursuant to Minn.St. 514.02, and arraigned on the following information:

'I, Jerome A. Schreiber, County Attorney * * * hereby inform the Court that * * * Raymond Reps did willfully, wrongfully and unlawfully fail to use the money paid to him by Margaret Splittstoesser on account of certain improvements made by her as owner of certain real estate * * * after notice of non-payment of such materials, to-wit: the defendant did not pay outstanding bills * * * incurred by the defendant for materials used by him as contractor when he constructed an addition to the home of Margaret Splittstoesser * * *.'

Defendant moved to dismiss the information on the grounds that the facts stated therein do not constitute a public offense. The court made no ruling on the motion, but, pursuant to Minn.St. 632.10, reported the case to this court for decision of the legal and constitutional questions involved and certified the following questions:

1. Is Minn.St. 514.02, subd. 1, pursuant to which the information herein is filed, unconstitutional:

(a) As repugnant to Minn.Const. art. 1, § 12, prohibiting imprisonment for debt?

(b) As a denial of due process or other constitutional guarantees for the omission of the intent to defraud as an element of the crime of theft established?

(c) As a denial of due process of law, protection against being compelled to testify against oneself, or other constitutional guarantees for the omission as an element of the offense that defendant failed to apply all proceeds received from the owner to the extent needed to the cost of labor, skill, material, or machinery furnished for the improvement?

(d) As a denial of due process of law or other constitutional guarantees in being too vague, indefinite, and uncertain as to when, in point of time with relation to the acts constituting the offense, the crime is committed and, further, for not requiring or defining the relationship necessary between the defendant and parties having unpaid charges which defendant had the duty to pay with the proceeds received from the owner?

(e) As a denial of equal protection of the laws in providing that money paid by the owner must be used first for the payment of the cost of labor, skill, material, and machinery contributed to the improvement by others before those proceeds can be retained by the defendant for the payment of his own personal labor, skill, material, and machinery contributed to such improvement?

2. Is Minn.St. 514.02, subd. 3, unconstitutional as in conflict with constitutional guarantees of due process, trial by jury, protection against being compelled to testify against oneself, presumption of innocence, and proof beyond a reasonable doubt in that it raises a presumption as to the existence of essential elements of the offense charged?

3. Is Minn.St. 514.02, subd. 3, unconstitutional as a violation of due process or other constitutional guarantees in that it raises a presumption which is illogical, irrational, and not rooted in common experience?

4. Is Minn.St. 514.02, subd. 3(1), unconstitutional as a denial of due process of law, protection against being compelled to testify against oneself, or other constitutional guarantees, in that it places upon the defendant the burden of going forward with the evidence to prevent the raising of a presumption as to the existence of essential elements of the offense?

5. Is Minn.St. 514.02, subd. 3(2), unconstitutional as a denial of due process of law or other constitutional guarantees in that it requires the filing of a bond by the defendant to prevent the raising of a presumption as to the existence of essential elements of the offense charged?

1. The preliminary issue is whether the statutory certification procedure is proper in this case. No ruling on defendant's motion for dismissal was made by the district court and, while Minn.St. 632.10 ¹ makes no mention of the need for an order or an appeal, this court expressed the view in early decisions on this subject that certification in criminal cases must be preceded by a ruling by the trial court. State v. Byrud, 23 Minn. 29 (1876); State v. Smith, 116 Minn. 228, 133 N.W. 614 (1911); State v. Wellman, 143 Minn. 488, 173 N.W. 574 (1919); State v. Lyckholm, 150 Minn. 532, 185 N.W. 291 (1921); see, also, State v. Johnson, 139 Minn. 500, 166 N.W. 123 (1918).

Other and more recent cases, however, have implicitly recognized the propriety of review upon certification without an order or an appeal. State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 21 N.W.2d 792 (1946); State v. Brattrud, 210 Minn. 214, 297 N.W. 713, 134 A.L.R. 1248 (1941). While such a review may not have conferred appellate jurisdiction in the traditional sense, we think it is nevertheless sufficiently appellate in nature, regardless of a trial court ruling, to warrant our determination. The interests of the parties and their opportunity to address the legal issues are the same as if a ruling had preceded the certification or an actual appeal had been pursued. This court's inherent power of review, in any event, is not conditioned by statutory limitations. See, In re Appeal of O'Rourke, Minn., 220 N.W.2d 811 (1974).

2. The first certified question is whether Minn.St. 514.02, subd. 1, is unconstitutional as repugnant to Minn.Const. art. 1, § 12, prohibiting imprisonment for debt. Minn.St. 514.02, subd. 1, provides as follows:

'Whoever, on any improvement to real estate within the meaning of section 514.01, fails to use the proceeds of any payment made to him on account of such improvement by the owner of such real estate or person having any improvement made, for the payment for labor, skill, material, and machinery contributed to such improvement, knowing that the cost of any such labor performed, or skill, material, or machinery furnished for such improvement remains unpaid, and who has not furnished to the person making such payment either a valid lien waiver as to any unpaid labor performed, or skill, material, or machinery furnished for such improvement, or a payment bond in the basic amount of the contract price for such improvement, conditioned for the prompt payment to any person or persons entitled thereto for the performance of labor or the furnishing of skill, material, or machinery for the improvement, shall be guilty of theft of the proceeds of such payment and upon conviction shall be fined not more than $1,000 or imprisoned not more than one year, or both.'

It is asserted by defendant that such statute is violative of Minn.Const. art. 1, § 12, which provides in part:

'No person shall be imprisoned for debt in this state, but this shall not prevent the legislature from providing for imprisonment, or holding to bail, persons charged with fraud in contracting said debt.'

This same issue has been raised in this court on two prior occasions. An early forerunner ² of the statute now in question made the failure of a contractor, who had received his pay from the owner, to pay his laborers and materialmen, although he might not be guilty of any fraud, a felony punishable by imprisonment. In Meyer v. Berlandi, 39 Minn. 438, 40 N.W. 513 (1888), this court ruled the statute unconstitutional, stating:

'Section 3, if not unconstitutional on other grounds, is clearly repugnant to section 12, art. 1, of the constitution of the state, prohibiting imprisonment for debt. It is not necessary that a contractor be guilty of any fraud or other tort in order to subject him to the penalties of this section.' 39 Minn. 441, 40 N.W. 514.

The issue was again raised in State v. Harris, 134 Minn. 35, 158 N.W. 829 (1916), where the statute ³ provided that misuse by a contractor, 'with intent to defraud,' of moneys paid him by the owner for improvements constituted larceny. In distinguishing this 1915 statute from the act earlier considered in Meyer v. Berlandi, Supra, and thereby upholding its constitutionality, the court stated:

'* * * The 'intent to defraud' which is the gist of the act of 1915 was not contained in the act there under consideration, and it is the 'intent to defraud' which makes unlawful and criminal the acts prohibited by the statute.' 134 Minn. 38, 158 N.W. 830.

A subsequent amendment has, inter alia, eliminated the words 'intent to...