State v. Woodward. [Oct. 1910,

• Decision Date: 25 October 1910
• Citation: 68 W.Va. 66
• Court: West Virginia Supreme Court
• Parties: State v. Woodward.[Oct. 1910,

68 W.Va. 66

State

v. Woodward.[Oct. 1910,

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1910.

Decided October 25, 1910.

Submitted June 8, 1910. Decided October 25, 1910.

1. Constitutional Law Criminal Law Due Process Closing

Saloons on Sunday.

Sections 1 and 3 of chapter 14, Acts Extra Session of 1908, closing saloons on Sunday, are not unconstitutional as imposing punishment cruel or unusual or disproportionate to the offence, or depriving of property without due process.

2. Criminal Law Poiver of Legislature Creation of Crimes.

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

3. Intoxicating Liquors Regulation by Legislature.

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 offence against liquor law.

Error to Circuit Court, Bandolph County. James E. Woodward was convicted of keeping open a saloon on Sunday, and brings error.

Affirmed.

W. B. Maxwell, for plaintiff in error.

William G. Gonley, Attorney General, for the State.

Braoton, Judge:

By chapter 14 of the extra session of 1908, Supplement Code issued in 1909, § 933a 1, 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 ordi- nance 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 provides that any person, his agent or employee, 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 employee 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 E. Woodward was indicted in the circuit court of.Bandolph 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 Art. 3, of the State Constitution, 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 low 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 clue 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. The legislature is ordinarily the judge of the expediency of creating new crimes, and of perscribing penalties, whether light or severe. Commonwealth v. Murphy, 165 Mass. 66, Southern Express Co. v. Commonwealth, 92 Va. 66. 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. Lawlen v. Steele, 152 U. S. 133; Mugler v. Kansas, 123 Id. 623; Kidd v. Pearson, 128 Id. 1; Kirhland v. State, and note, 2 Amer. and Eng. Anno. Cases 242, 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 au- thorize 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." Art. 6, § 46. 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 adapted 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., Art. 3, § 5, 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, page 92, that "The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually (by connivance, at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck and then cut down alive. 3. That his entrails be taken out and burned while he is yet alive. 4. That; his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal." Blackstone, Book 4, page 327, says: "The English judgment of penance for standing mute was as follows: that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back...