Stout v. State ex rel. Caldwell

Citation36 Okla. 744,130 P. 553,1913 OK 123
Decision Date11 February 1913
Docket NumberCase Number: 1781
PartiesSTOUT v. STATE ex rel. CALDWELL.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. INTOXICATING LIQUORS--Action--Use of Premises--Proceeding for Penalty--Nature and Form. 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.

2. CONSTITUTIONAL LAW--Construction and Operation of Constitution--Persons Entitled to Raise Constitutional Question. 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.

3. CRIMINAL LAW--"Jeopardy"--Similar Expressions. 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.

4. SAME--Proceeding for Penalty. Article 2, sec. 21, of the Constitution (Williams' Ann. Const. Okla., sec. 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.

5. CONSTITUTIONAL LAW -- Determining Constitutionality of Statute--Presumption. An act of the Legislature will not be declared unconstitutional unless its conflict with the Constitution is clear and certain.

6. CRIMINAL LAW -- Former Jeopardy-- Penalty. 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, sec. 21, of the Constitution, which provides, "Nor shall any person be twice put in jeopardy of life and liberty for the same offense."

7. SAME--Constitutional and Statutory Provisions-- Punishment for Offenses. 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.

Error from District Court, Oklahoma County; R. H. Loofbourrow, Assigned 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, for plaintiff in error.

Chas. West, Atty. Gen., and Jos. L. Hull, Asst. Atty. Gen., for defendant in error.

AMES, C.

¶1 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, sec. 21 (Williams' Ann. Const. Okla., sec. 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:

"It shall be unlawful for the owner or owners of any real estate, building, structure, or room to use, rent, lease, or permit the same to be used for the purpose of violating any provision of this act. Any person who shall willfully violate the provisions of this section shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of not less than one hundred dollars, nor more than one thousand dollars for each offense, to be recovered at the suit of the state. The penalty so recovered shall become a lien on the property and premises so used, leased or rented in violation of this act from and after the date of the filing of the suit to recover such penalty, and the filing of a notice of the pendency of such suit with the register of deeds of the county wherein said property is located, and upon final judgment said property may be sold as upon execution to satisfy the same, together with costs of suit; provided, however, that such lien shall not attach to property under the control of any receiver, trustee, guardian or administrator; but in such case the receiver, trustee, guardian or administrator shall be liable, on his official bond, for the penalty so incurred, and in addition thereto shall be guilty of a misdemeanor. Each day such property is so used, leased or rented for any such unlawful purpose shall constitute a separate offense, and the penalty herein prescribed shall be recovered for each and every such day. All leases between landlords and tenants under which any tenant shall use the leased premises for the purpose of violating any provision of this act, shall be wholly null and void, and the landlord may recover possession thereof as in forcible entry and detainer."

¶2 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, sec. 21, of the Constitution; Williams' Ann. Const. Okla., sec. 29):

"No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life and liberty for the same offense."

¶3 First. This proceeding to recover the penalty is the punishment of an offense, or at least a part of it.

¶4 On this point the opinion of this court in C., R. I. & P. Ry. Co. v. Ter. of Okla., 25 Okla. 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 railway 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.

¶5 Second. While this is a proceeding to punish an offense, at the same time it possesses many of the attributes of a civil action.

¶6 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 Okla. 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...

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