Stout v. State
| Decision Date | 07 January 1913 |
| Citation | 130 P. 553,36 Okla. 744 |
| Parties | STOUT v. STATE EX REL. CALDWELL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 14, 1913.
Syllabus by the Court.
Section 4191, Comp. Laws 1909, provides as the punishment of one who uses or permits his premises to be used for violating the prohibition law both fine and imprisonment and a penalty. Held:
(a) That the proceeding to recover the penalty is the punishment of an offense.
(b) That while this proceeding punishes an offense, it at the same time is in the nature of a civil action and is governed by the rules of procedure applicable to civil instead of criminal cases.
A defendant, sued for the penalty provided by section 4191, Comp. Laws 1909, for unlawfully permitting his premises to be used in violation of the prohibition law, may plead that the statute is invalid because in conflict with the former jeopardy section of the Constitution, although he has not been previously prosecuted for the crime pronounced by the statute.
The terms "jeopardy of life and liberty for the same offense," "jeopardy of life or limb," "jeopardy for the same offense," "twice in jeopardy of punishment," and other similar provisions used in the various Constitutions, are to be construed as meaning substantially the same thing.
Article 2, § 21, of the Constitution (Williams' Constitution and Enabling Act, § 29), which provides, "Nor shall any person be twice put in jeopardy of life and liberty for the same offense," is not intended to apply to a civil proceeding which affects merely property rights, even though such proceeding is in part a punishment of an offense.
An act of the Legislature will not be declared unconstitutional unless its conflict with the Constitution is clear and certain.
Section 4191, Comp. Laws 1909, imposing, as the penalty for the offense there described, a penalty to be recovered at the suit of the state, and a fine and imprisonment to be administered in a criminal prosecution, is not in conflict with article 2, § 21, of the Constitution, which provides "Nor shall any person be twice put in jeopardy of life and liberty for the same offense."
The fact that the Constitution prescribes the punishment for the sale of intoxicating liquors does not prevent the Legislature from imposing other and different or greater punishment for using or permitting one's premises to be used for the sale of intoxicating liquors, as the two offenses are separate and distinct and require different proof to support them.
Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; R. H. Loofbourrow, Judge.
Action by the State, on the relation of Fred S. Caldwell, counsel to the Governor, against D. C. Stout, to recover a penalty for using certain premises in Oklahoma City for the purpose of unlawfully disposing of intoxicating liquors. Judgment for plaintiff for $500, and defendant brings error. Affirmed.
Kistler McAdams & Haskell, of Oklahoma City, for plaintiff in error.
Chas.
West Atty. Gen., and Jos. L. Hull, Asst. Atty. Gen., for defendant in error.
On the petition for rehearing our attention was first called to the contention that section 4191, Comp. Laws 1909, is in conflict with article 2, § 21 (Williams' Constitution and Enabling Act, § 29) of the Constitution, prohibiting twice placing any person in jeopardy for the same offense, and we granted the petition in order that this position might be fully examined. We have been assisted in this examination by careful briefs and oral argument, and have given the subject a painstaking investigation, having carefully examined the authorities cited by counsel and many others disclosed by our own researches. Section 4191 is as follows:
The offense charged against the defendant under this statute is using his premises for the purpose of selling and otherwise illegally furnishing spirituous, vinous, fermented, and malt liquors, and permitting his premises to be used for such purposes. It will be noticed that any person who willfully violates the provisions of this section is guilty of a misdemeanor, and in addition thereto is liable to a penalty of not less than $100 nor more than $1,000 for each day during which the property is so used. The punishment for the misdemeanor is a fine of not less than $50, nor more than $500, and imprisonment not less than 30 days, nor more than six months. Section 4206, Comp. Laws 1909. The punishment therefore, for a violation of the section involved, is fine and imprisonment and penalty. It will be observed that the statute uses the expression, "and in addition thereto," so that the punishments are concurrent, and not severable, and if one can be imposed all must be imposed. The punishment for the misdemeanor is administered in a criminal prosecution, while the penalty is collected in a suit brought by the state. Both sides agree that it requires two proceedings to complete this punishment, one criminal, and one in the nature of a civil action, and we concur in this agreement; so that the question presented is whether or not, for the punishment of a crime, a man may be twice tried. It will also be observed that this statute imposes both punishments for the same offense. It is not a case of the same acts constituting different offenses, or offenses against different governments. The constitutional provision referred to is as follows (article 2, § 21, of the Constitution; Williams' Constitution and Enabling Act, § 29):
First. This proceeding to recover the penalty is the punishment of an offense, or at least a part of it.
On this point the opinion of this court in C., R.I. & P. Ry. Co. v. Territory of Oklahoma, 25 Okl. 238, 105 P. 677, is conclusive. That was a proceeding in the nature of a civil action, instituted against the railroad to recover the statutory penalty for accepting and receiving quail for the purpose of transportation. The quail were received in Blaine county and transported through Garfield county, where the suit was brought. The organic act of Oklahoma territory provided that "all offenses committed in said territory, if committed within any organized county, shall be prosecuted and tried within said county," and it was argued by the railroad company that the suit should have been brought in Blaine county, as it was the prosecution of an offense, although it was in the form of a civil action. This position was upheld by the court upon the authority of United States v. Chouteau, 102 U.S. 603, 26 L.Ed. 246; Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123; A., T. & S. F. R. Co. v. State, 22 Kan. 1.
Second. While this is a proceeding to punish an offense, at the same time it possesses many of the attributes of a civil action.
Its ultimate object is the recovery of a money judgment, and it cannot at any time result in depriving the defendant of life or liberty, but merely of property. It is governed by the rules of procedure in civil instead of criminal cases, and would not require evidence beyond a reasonable doubt to support it, or a unanimous verdict, or the other peculiar classes of protection which are thrown around those whose life or liberty is at stake. In re Seagraves, 4 Okl 422, 48 P. 272, held that an action to recover a penalty for intruding within the Indian country cannot be enforced by a criminal proceeding. This subject has recently received a careful consideration in Hepner v. U. S., 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720, 27 L. R. A. (N. S.) 739, 16 Ann. Cas. 960, which was an action to recover the penalty prescribed by statute for inducing an alien to migrate to the United States for the purpose of performing labor there. The United...
To continue reading
Request your trial