State v. Woodward

• Decision Date: 25 October 1910
• Citation: State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (W. Va. 1910)
• Parties: STATE v. WOODWARD.
• Court: West Virginia Supreme Court

69 S.E. 385

68 W.Va. 66

STATE v. WOODWARD.

Supreme Court of Appeals of West Virginia.

October 25, 1910

Submitted June 8, 1910.

Syllabus by the Court.

Sections 1 and 3 of chapter 14, Acts Ex. Sess. 1908 (Code Supp. 1909 §§ 933a1, 933a3), closing saloons on Sunday, are not unconstitutional as imposing punishment cruel or unusual or disproportionate to the offense, or depriving of property without due process.

The Legislature has power to create and define crimes and fix their punishment, so only that such punishment is not cruel or unusual or disproportionate to the offense.

The Legislature has power to regulate and restrict the sale of intoxicating liquor, and to revoke license and close places where sold under it upon conviction of offense against liquor law.

(Additional Syllabus by Editorial Staff.)

The punishment known as "drawing" consists in tying the culprit's feet to a horse's tail and dragging him along the ground to the place of his execution.

The word "cruel," used in the Constitution, providing that cruel and unusual punishments shall not be inflicted was intended to prohibit torture, agonizing punishment, but never intended to abridge the selection of the lawmaking power of such kind of punishment as was deemed most effective in the suppression of crime.

Error from Circuit Court, Randolph County.

James R. Woodward was convicted of keeping open a saloon on Sunday and brings error. Affirmed.

W. B. Maxwell, for plaintiff in error.

Wm. G Conley, Atty. Gen., for the State.

BRANNON J.

By chapter 14 of the extra session of 1908 (Code Supp. 1909, § 933a1) a new offense is created. In its first section it enacts that: "All rooms, except drug stores, where any of the liquors mentioned in section one, paragraph c, chapter thirty-six, acts of nineteen hundred and five, are sold or kept for sale, either at wholesale or retail, shall be kept closed and securely locked on the first day of the week, commonly called Sunday, from and after the hour of twelve o'clock Saturday night and until five o'clock on the morning of the succeeding Monday, and no person shall be permitted in such room for any purpose during the days and hours when it is by law or ordinance required to be closed. All openings of every sort from such room to any other room, hall, vestibule, entrance or stairway, situated in the building, or from such room to any building or room adjoining the room in which said business is carried on, or from such room to any basement or cellar, chamber or attic, shall be kept securely closed and locked on said first day of the week." Its third section (section 933a3) provides that any person, his agent or employé, violating the first section "shall on conviction be fined not less than fifty dollars nor more than two hundred and fifty dollars, and be imprisoned in the county jail not less than six months nor more than twelve months; and such violation by an agent or employé shall be deemed an offense as well by the principal or employer, and they may be indicted for the same either jointly or separately. The court before which such conviction is had shall as a part of its judgment revoke the license granted for the sale of spirituous liquors on said premises, and shall order that said room and premises shall not be used for the sale, storage or manufacture of such liquors for one year from and after such conviction." Under this James R. Woodward was indicted in the circuit court of Randolph county; the indictment charging that, having a state license to sell at retail spirituous liquors, he did, in a certain room in which he sold and kept for sale spirituous liquors, "unlawfully unlock and open the said room and enter therein on the morning of said day, being the first day of the week commonly called Sunday." Woodward was found guilty by a jury, and the judgment was that he pay a fine of $50 and be confined in jail six months, and that his liquor license be revoked, and that the room where he sold and kept liquors for sale should not be used for the sale, storage, or manufacture of such liquor for one year after the date of the judgment.

The defendant moved the court to quash the indictment and for a new trial; but the court overruled the motions. In his motion to quash the indictment he suggested that the statute is contrary to the fourteenth amendment of the federal Constitution and section 10 of article 3, of the state Constitution (Code 1906, p. li), both providing that no person shall be deprived of life, liberty, or property without due process of law. We cannot see that the statute is obnoxious to that objection. It provides for the ordinary process of law by conviction on trial upon indictment. I need not cite authority to show that this is due process of law. Surely, so far as fine and imprisonment are concerned, under our Constitution he must be indicted and tried by his peers. This is in the highest sense due process of law under which even life may be taken. We do not think that that feature of the statute which commands the court on conviction to revoke the liquor license and to close the place of sale is any more open to constitutional objection, since that is a part of the penalty prescribed by the statute for the offense and is inflicted only after due process has been had. This matter falls under the rule that the Legislature is clothed with power well-nigh unlimited to define crimes and fix their punishment. So its enactments do not deprive of life, liberty, or property without due process of law and the judgment of a man's peers its will is absolute. It can take life, it can take liberty, it can take property, for crime. "The Legislatures of the different states have the inherent power to prohibit and punish any act as a crime, provided they do not violate the restrictions of the state and federal Constitutions; and the courts cannot look further into the propriety of a penal statute than to ascertain whether the Legislature had the power to enact it." 12 Cyc. 136. "The power of the Legislature to impose fines and penalties for a violation of its statutory requirements is coeval with government." Mo. P. R. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463. The Legislature is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties, whether light or severe. Commonwealth v. Murphy, 165 Mass. 66, 42 N.E. 504, 30 L.R.A. 734, 52 Am.St.Rep. 496; Southern Express Co. v. Commonwealth, 92 Va. 66, 22 S.E. 809, 4 L.R.A. 436. For such a fundamental proposition I need cite no further authority. As to that feature of the act forfeiting license and closing the saloon, it falls under the power to punish after conviction. It is a forfeiture which may as validly be enacted as the imposition of imprisonment and forfeiture of money. The power of the Legislature to declare what are nuisances and to authorize their removal is established clearly by authority. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Kidd v. Pearson, 128 U.S. 623, 9 S.Ct. 6, 32 L.Ed. 346. Kirkland v. State, 72 Ark. 171, 78 S.W. 770, 65 L.R.A. 76, 105 Am.St.Rep. 25, 2 Am. & Eng. Ann.Cas. 242, and note, is full on this subject.

When Woodward accepted his license, he accepted it subject to legal regulations, and surely for a violation of the law the Legislature could declare its forfeiture. And so it might authorize the closing of the saloon as the instrument used in the violation of the law. Statutes providing forfeiture of liquor licenses are numerous and constitutional. Fines may be imposed, and this is a fine levied on a specific article, instead of the offender's estate at large. The power is universally conceded, says Bishop's Statutory Crimes, §§ 993, 1056. So license may be revoked. Id., § 1003a. Our very Constitution gives the state power to deal with the evil resulting from intoxicating liquors in the provision that "laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this state." Article 6, § 46 (page lxiii). This is a very great power; it is hard to say where its limits are. It may make any kind of regulations in the wisdom of the Legislature adopted to regulation. This power falls within the great police power so widespread and so necessary to a state government. Though counsel for Woodward made the suggestion in the motion to quash the indictment that the act deprived of life, liberty and property without due process, he seems not to rely on it, as he does not pursue it in his brief. He seems rather to base his charge of unconstitutionality on that provision of the Constitution of the state (article 3, § 5, p. 1) saying that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offense." What is meant by the provision against cruel and unusual punishment? It is hard to say definitely. Here is something prohibited, and in order to say what this is we must revert to the past to ascertain what is the evil to be remedied. Within the pale of due process, the Legislature has power to define crimes and fix punishments, great though they may be, limited only by the provision that they shall not be cruel or unusual or disproportionate to the character of the offense.

Going back to ascertain what was intended by this constitutional provision, the history of the law tells us of the terrible punishment visited by the ancient law upon convict criminals. In our days of advanced Christianity and civilization this review is most interesting, yet shocking and heartrending. Take the case of treason. Blackstone says (book 4, p. 92) that: "The punishment of high...