text:
    G. L. Byars v. State.
    No. A-85.
    Opinion Filed June 30, 1909.
    (102 Pac. 804.)
    1. CONSTITUTIONAL LAW — Work and Labor — Violation of Eight Hour Law. Defendant, a paving contractor, in violation of article 4, c. 53, p. 517, Laws 1908, being “An act to put into effect section 1 of article 23 of the Constitution, providing what shall constitute a day’s work in all cases of employment by and on behalf of the state or any county or municipality: prescribing penalties for violations thereof,” etc., employed Wm. Hammond and other laborers to labor on the streets of Guthrie more than eight -hours per day. Upon trial and conviction in the county court of Logan county he appealed to this court, contending that the statute limiting the time of labor on public work to eight hours a day was unconstitutional. Held, that said statute is a direction of the state to its agents, and is constitutional and valid.
    2. SAMEv A person who contracts for public work is not by reason of the provisions of this statute deprived of his liberty or his property without due process of law, nor denied the equal protection of the laws within the meaning of the fourteenth amendment.
    3. MUNICIPAL CORPORATIONS — Agents of State — iPaving a Public Work. Municipal corporations are in every essential only auxiliaries of the state for the purposes of local government. The Constitution of Oklahoma expressly reserves to the state control over public highways, including roads, streets, and alleys of all municipalities. The paving of a street, whether done by the state directly or by one of its municipalities, is a work of a public, not private, character.
    4. SAME — Eight Hour 'Labor Law — Violation by Contractor. It is within the powey of a state, as guardian and trustee for its people and having full control of its affairs, to prescribe the conditions upon which it will permit public work to be done on behalf of itself, its counties, cities, or other municipalities. In the exercise of these powers, it may by statute provide that eight ‘hours shall constitute a day’s work for all laborers employed by or on behalf of the state or any of its municipalities, and make it unlawful for any one thereafter contracting to do any public work to require or permit any laborer to work longer than eight hours per day, and require such contractors to pay the current. rate of daily wages.
    (Syllabus by the Court.)

      Error from Logan County Court; J. C. Strang, Judge.

    G. L. Byars was convicted of a violation of Eight-Hour Labor Law (Sess. Laws 1908, p. 517, c. 53, art. 4), and he brings error.
    Affirmed.
    Plaintiff in error, Gr. L. Byars (hereinafter designated as defendant), was by information filed in the county court of Logan county charged with a violation of the provisions of article 4. c. 53, p. 517, Sess. Laws 1908, commionly^known as the "Eight-Hour Labor Law," which information reads as follows:
    "In the County Court of Logan County, State of Oklahoma.
    "The State of Oklahoma v. Gr. L. Byars, Defendant.
    "Information.
    "In the Name of and by the Authority of the State of Oklahoma comes now James Hepburn, county attorney in and for Logan county, Oklahoma, who prosecutes for and on behalf of said state in all courts sitting in said county, and duly authorized and empowered to inform of all offenses committed or triable therein, and gives the court to know and be informed that heretofore, to wit, on or about the 21st day of January, A. D. 1909, at and within the county of Logan, and State of Oklahoma, one G. L. Byars being then and there the agent of one J. F. Hill, which said J. F. Hill then and there had a contract for and on behalf of a certain municipality, to'wit, the city of Guthrie (a municipal corporation existing under and by virtue of the laws of the State of Oklahoma) for the paving, curbing, draining and guttering of a certain street, to wit: Noble avenue in said city of Guthrie, did then and there knowingly and unlawfully work and cause to be worked one Wm. Hammond and other parties to affiant unknown for more than eight, hours for said, day’s work, which said Wm. Hammond and other parties to affiant unknown were then and there under the supervision and control of him the said G. L. Byars.
    "Contrary to and in violation of the statutes in such case made and provided, and against the peace and dignity of the state.
    "James Hepburn, County Attorney.
    "State of Oklahoma, County of Logan — ss.:
    "O. L. Dougherty being first duly sworn on oath says that he has read and knows the contents of the within and foregoing information, and that the allegations and statements therein contained are true.
    “C. L. Dougherty.
    “Subscribed and sworn to before me this 28th day of Jan. A. D. 1909.
    “[.Seal.] Carl L. Bice, Notary Public.
    “My commission expires April 25, 1911.
    “■State of Oklahoma, County of Logan — ss.:
    “James Hepburn, being duly sworn upon oath, deposes and says that he is the County Attorney in and for said Logan County, Oklahoma, that he has read and knows the contents of the within and foregoing information and that the allegations and) statements therein contained are true as he is informed and verily believes.
    “James Hepburn, County Attorney.
    “Subscribed and sworn to before me this 28th day of Jan. 1909.
    “[Seal.] J. C. Strang. County Judge.”
    To which information on said day defendant filed his demurrer as follows:
    “State of Oklahoma y. G. L. Byars.
    “Demurrer.
    “Now comes the defendant by Decius & Levy, his attorneys, and demurs to the information, and for cause of demurrer says:
    “First. Said information does not set up a state of facts which constitute a misdemeanor of any nature.
    “■Second, that the statute under which same is purported to have been instituted is unconstitutional and void.
    “Third. That the statute under which said information is instituted is invalid because it contravenes the 14th amendment to the Constitution of the United States.
    “Decius & Lev]r,
    “Attorneys for Defendant.”
    This demurrer was by the court overruled. Defendant excepted. The defendant, being arraigned, entered a plea of “Not guilty,” and announced ready for trial. Whereupon the state and the defendant waive a jury, and agree that the case should be submitted to the court upon an agreed statement of facts, as follows:

      “State of Oklahoma. Logan County — ss.;
    “State of Oklahoma v. G. L. Byars.
    “Agreed Statement of Facts.
    “It is hereby stipulated and agreed in the above cause as follows: That Guthrie. Oklahoma, is a city of first class. That one J. F. Hill, a contractor, entered into a contract with reference to paving and guttering of a certain street in said city (a copy of which contract is hereto attached and made a part hereof). That one G. L. Byars, the defendant above named, is agent of said J. F. Hill. That said G. 'L. Byars employed one William Hammond and others to perform labor cf shoveling dirt in the prosecution of said work oh Noble avenue in said city, and that said William Hammond was permitted to work nine hours on each calendar day. That the agreemlent with William Hammond is that he is to receive twenty cents per hour, and no more. That said William Hammond worked nine hours voluntarily, and that he was employed at his own solicitation. That he was hired and employed without knowledge or consent of the city of Guthrie, and that neither the city or its officers had or exercised any control over him. That the contract had no provision ás to the number of hours laborers should work per calendar day, nor any provision as to their compensation, but left the matter free as to manner and means of performing the contract. That said work was healthful outdoor work, not dangerous, hazardous, or in any way injurious to life, limb,' or health, and could be performed for a period ot nine hours each working day of the week without injury from so doing. That the labor he was performing was in no respect or manner more dangerous to the health or hazardous to life or limb than that of persons doing the same kind or character of work as employes of private corporations. That said work so done as provided in said contract was to be paid for solely by the owners of the property abutting on said street, and that said city was not obligated to pay anything therefor. That said work was to be done and performed under article 1, c. 10, p. 160, Sess. Laws 1907-1908, and that all of said work was to be paid for by the property owners. That said city is obligated to take such proceedings as are necessary to levy and collect assessments therefor. That said J. F. Hill, contractor, entered into bond conditioned that he would perform said work, and that he would maintain same for a period of five years.
    “State of Oklahoma.
    “By James Hepburn,
    “County Attorney, Logan County.
    “Gr. L. Byars, Defendant.
    “By Deeius & Levy, Attorneys.
    “Contract.
    “This contract, made and entered into this 11th day of December, 1908, by and between J. F. Hill, of Chicago, Ill., hereinafter called the contractor, party of the first part, and the City of Guthrie, Oklahoma, hereinafter called the city, party of the second part, witnesseth: That whereas the said contractor is the lowest and best bidder for making improvements under and by virtue of the provisions of a resolution passed by the city council of the city, on the 24th day of September, 1908, on the following street or avenue, to wit: Noble avenue from the west line of Drcx-el Boulevard to the east line of fifteenth street by constructing and guaranteeing for a period of five years, as hereinafter provided, an asphalt pavement on the street or avenue and the unpaved portions thereof above described, and in the manner provided for in said resolution and the specifications of the city engineer," approved at the meeting of city council, November 21, 1908:
    “Now, therefore, the said contractor hereby covenants and agrees to furnish all the material and to perform all the work necessary to complete the said improvements according to the terms of said resolution and in conformity to the plans and specifications on file in the city clerk’s office above referred to, to the satisfaction and acceptance of the city engineer and the city council of said city; and, after the completion and acceptance of the asphalt pavemtent, it shall be maintained and kept in good repair for a period of five years by the contractor, at his own expense during said period without further compensation than that provided- for in this contract for the first cost of said work, all as provided in the said specifications. The said contractor agrees to commence work within fifteen days from the time this contract is confirmed by the council of the city, and the work shall be completed to the satisfaction and acceptance of the city engineer and the city eorm-cil of the city within two hundred and fifty (250) working days from and after the approval of this contract. Working days shall include all days except only Sundays and legal holidays and such others as are hereinafter excepted. It is further agreed and understood by the parties hereto that the work herein contemplated shall be commenced at such point or points and prosecuted in such manner and with such force as the city engineer of the city may direct, and for each working day beyond the time fixed in this contract for the final completion of the improvement, such completion shall be delayed by the contractor; said contractor shall pa}»- to the city the sum of ten ($10.00) dollars per day to cover continuing expense of engineer and inspectors. It is further expressly agreed and understood by and between the parties hereto that this contract is made subject to the specifications heretofore adopted on the 21st day of November, .1908, by the city council of Gnthrie; and the proposal of the said J. F. Hill as made on the 10th day of December, 1908, and accepted on the 11th day of December, 1908, copies of which said specifications and proposal are hereto attached and made a part hereof.
    “■The party of the first- part further agrees to -pay for the work and labor of all laborers and teamsters, teams, and wagons crapped on the work and for all material used therein. To prevent all disputes and litigations, it is further agreed by the parties hereto that the city engineer and public improvement committee shall in all cases determine the amount and quality of the several kinds of work which are to be paid for under this contract; and they shall decide all questions which may arise relative to the' execution of the work under this contract on the part of the .contractor, subject however to confirmation by the council in case of appeal to council. This contract is entered into subject to the approval or rejection of the council of the city of Guthrie, and shall not bind either party until so approved and confirmed and is subject to.all city ordinances and the laws of Oklahoma now in force relating to such matters. In consideration of the completion by the said contractor, of all work embraced in this contract, in strict conformhy with the specifications hereinbefore referred to, the city hereby agrees to pay to the said contractor the following prices, viz.:
    “'Schedule.
    “The city further agrees to pay for all said work in street improvement bonds to bear interest at six (6%) per cent, per an-num issued by the city, which the contractor agrees to accept at par, the forms of which are to be determined by the parties hereto and embraced in a resolution or ordinance to be passed by the city council. The city further agrees that it will cause the levy and collection of assessments against the property liable to the same under the laws of the State of Oklahoma, and will levy and collect annually a sufficient tax to pay the bonds so to be issued, with the annual interest thereon as the same shall become due; and the expense of the levying and collection of said asss.sments shall be borne by the city, and the city agrees to pay out of the funds derived from such tax levy said bonds and interest promptly when due to the holders of such securities at the fiscal agency of the said city in the City of New York„ or at the office- of the treasurer of the city of Guthrie at the option of the holders thereof, and the city agrees to cause to be made promptly the annual collection of a sufficient amount of money to pay the securities so issued together with all interest charges. The city further agrees to make to said contractor payments in bonds from time to time as the cost of such improvement is ascertained on the written estimate of the city engineer the amount of such pajunents to be ninety (90%) per cent, of the said estimate as the same shall be approved by the council retaining the ten '(10%) per cent, thereof until the final completion of the work to be done under this contract. Said estimates of the city engineer shall include completed work, work in progress and materials delivered on the streets to be improved. The remaining ten per cent, together with the final estimate and any other amounts due the contractor shall be paid within thirty (30) days after the final completion and acceptance of said work. To each such estimate there shall be added approximately five per cent, in addition to the contract price for the work and materials, to provide for all other expenses incurred bjr the city incident to the improvement; and said contractor shall accept street improvement bonds for said additional five per cent, and pay par therefor to the city, provided that the contractor miay have the option of selecting to pay to the city a lump sum approximately equal to five per cent, of the whole contract and to receive in pay therefor street improvement bonds in an amount equal to such payment which amount shall be included in the estimate and whenever in the judgment of the engineer, the contractor shall have satisfactorily filled his contract, and the woi*k done by him shall have been accepted by the mayor and council, the city shall pay to said contractor the full amount of the final estimate, less all previous payments. The city further agrees to furnish all necessary water for the execution of the work at its hydrants at a price to be agreed upon between the contractor and tbe water commissioner and said water commissioner shall regulate all waste and excessive use of water by the contractor. It is further agreed that the contractor shall, within fifteen (15) days from the confirmation of this contract by the council of the city, furnish bonds in the sum of twenty-five (25%) per cent, and ten (10%) per cent., respectively, of the contract price for the faithful completion of the work and the maintenance of the same with surety to be approved by the city council. The city agrees to pass and adopt such petitions, ordinances, orders, and resolutions and to take such other proceedings as will give to the bonds, which are paid to the contractor under this agreement the highest possible market value and as will best and most speedily give effect to the provisions of the statute and this contract and the officers and employes of the city shall at all times, and by all proper means, facilitate the work to be performed hereunder. The city shall perform all the obligations imposed upon it by this contract and the laws of the state of Oklahoma promptly and without unnecessary delay, particularly with reference to the assessment of benefits, levying and collection of the special assessment and payment of the proceeds thereof contemplated by this agreement and the laws of the state above mentioned.
    “In witness whereof the contractor, J. F. Hill, has caused these presents to be signed by Henry Ranstron, his duly authorized agent and attorney, and the city of Guthrie has caused these presents to be signed by its mayor and attested by its clerk and the seal of the city to be affixed hereto the day and year first above written.

      “J. F. Hill,
    “By Henry Ranstron.
    c<:Witness to signature:
    “L. E. Decius.
    “The City of Guthrie, Oklahoma,
    “By C. M. Barnes, Mayor.
    “Attest: E. W. Kinnan, City Clerk of the City of Guthrie, Oklahoma. [Seal.]”
    The court, having been fully advised in' the premises, found the defendant guilty of knowingly and wilfully working one Wm. Hammond for more than eight hours as a day’s work, as charged in the information. Whereupon defendant files his motion for a new trial, which motion was by the court overruled and exception allowed; whereupon defendant filed his motion in arrest of judgment, which motion omitting the formal parts is as follows:
    “Comes now the defendant and moves the court in arrest of judgment and as grounds therefor says: First. The verdict is not sustained by the evidence. Second. The information does not set up such a state of facts as would constitute a misdemeanor of any nature. Third. The statute under which the action is instituted is in contravention of the Constitution of Oklahoma. Fourth. That the statute under which said information is instituted is invalid as being in conflict with the Constitution of the United States, and particularly the fourteenth amendment thereto. De-cius & Levy, Attorneys for Defendant.”
    This motion was by the court overruled and exception allowed. Whereupon the court pronounced sentence, fixing the punishment at $50 fine, and costs, from which judgment the defendant prosecutes error to this court. Said cause was submitted on briefs ai the May, 1909, term of this court.

      Decius & Levy, for plaintiff in error.

      Charles West, Atty Gen., and E. G. Spilman, Asst. Atty. Gen., for the State.
    No copies of briefs reached the reporter.
   DOYLE, Judge,

(after stating the facts as above). This case involves the validity under the Constitution of the United States and the Constitution of the state of Oklahoma of the statute commonly known as the “Eight-Hour Labor Law,” being article 4, c. 53, p. 517, Sess. Laws 1908. The case has been fully stated, in order that there may be no dispute as to what is involved in its determination. The Constitution of the state of Oklahoma provides in section 1, art. 33 (section 435, Bunn's Ed.) :

“Eight hours shall constitute a day's work in all cases of employment by and on behalf of the state or any county or municipality.”

■Senate Bill No. 79, approved May 37, 1908, being the statute under which defendant is prosecuted reads:

“An act to put into effect section 1, of article - 2'3, 'of the Constitution, providing what shall constitute a day’s work in all cases of employment by and on behalf of the state or any county or municipality; prescribing penalties for violation thereof, and establishing Labor Day and declaring an emergency.
“Be it enacted by the- people of the state of Oklahoma:
“Section 1. -Eight hours shall constitute a day’s work in all eases of employment by and on behalf of the state or any county or municipality.
“Sec. '¿. 'Any person, firm or corporation, or any agent, contractor or sirbcontraetor, who shall violate the provisions of this Act, or who shall aid, abet, assist, connive at, or permit any violation thereof is. guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty ($50.00) dollars nor more than one thousand ($1,000.00)' dollars and by imprisonment of not less than thirty days nor more than six months or by both fine and imprisonment. Each day such violation continues shall constitute a separate offense.
“Sec. 3. Not less than the current market rate of wages in the locality where the work is performed shall be paid.”

Counsel for the defendant contend: That under the terms of this statute, under the guise of a police regulation when it is not so in fact, the right of the employer and employe to contract is abridged in such a manner as to be an infringement upon the constitutional rights of both parties. That said statute is invalid because it contravenes the fourteenth amendment to the Constitution of the United -States, and that “the contract for paving is not ‘entered into by and on behalf of the city of Guthrie.'’ The city of Guthrie as a municipality is acting simply as an agent of the property owner, whose property abuts on the streets along the proposed improvement. While the city has supervisory power over the streets, the improvement as shown by the statement of fact is to be paid for solely by the property owners. Work of the kind mentioned therein does not come within the purview of the statute. Work in behalf of the city would be work for which the city was liable, and which was to be paid for by the city, and not abutting property owners.” We believe the contention of counsel for defendant is without merit, and is unsupported by reason or authority. We see in this law no infringement of constitutional rights.

There is nothing on which to base the statement that this statute is enacted by virtue of the police power of the state, and for this reason it is unnecessary to discuss or consider it. Tire foregoing provision of the Constitution was formulated and adopted by the people of Oklahoma as a part of the organic law. The manifest purpose of this provision is to promote the industrial welfare of the people by fixing a high standard for employes on public work. The statute in question is clearly calculated to promote the purpose and public policy of the state as expressed in the Constitution, and does not restrict or .interfere with the right or liberty of the employe and employer to contract, and can only be regarded as a direction by a principal to his agent, and therefore as a matter of consideration to the principal and agent only. Oklahoma as a sovereign state is no less free as a party to contract than any person in the state, and the lawmaking power, has the right to provide that contracts made by the state or any agent of the. state shall be executed in conformity with the requirements of the Constitution and the statute, a-nd the only way to make such laws effective is to make their violation criminal. The state has declared by constitutional provision and bv this statute that eight hours shall constitute a day’s work in all cases of employment by and on behalf of the state or any county or municipality, and that all laborers or employes engaged in the service of the state or any countjr or municipality shall not work thereunder more than eight hours per day, and that any violation of the statute shall be punished as a misdemeanor. The state does not take away the property of the citizen or interfere with his personal liberty. The right by virtue of which the state regulates the use of its property is not only one of dominion and sovereignty. It'is also the same in quality and character as the right of the person with whom it contracts, and, when the state engages directly or indirectly in the construction of public improvements, it may employ and refuse employment to whom it will, the same way and to the same extent that any citizen may exercise the right in reference to his private and personal affairs. The right is the same in either ease. This proposition is so elementary that a citation of authorities is unnecessary.

A contractor bidding for work to be done by the state, county, or municipality understands in making his estimates that under the law eight hours per day is the maximum time which his employes may work. He cannot be prejudiced for all other bidders on the same work have equal knowledge of the law governing the hours of labor to be performed on public work. It is obvious that otherwise an unscrupulous contractor would have an unfair and undue advantage over his law respecting competitors who base their estimates upon, and intend to conform to the requirements of the statute. A contractor is not compelled to bid. He does so voluntarily with full knowledge of the restrictions imposed by the statute, and all contracts made by any agent of the state must conform to the provisions of the statute, and, if not actually inserted therein, they would still be as the law of the state a part of the contract.

The case of Atkin v. State of Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, is precisely in point on every question involved in the case at bar. The statute of Kansas is similar to ours. Atkin contracted with Kansas City to pave a public street in said city, and hired a laborer to shovel dirt for 10 hours a day in execution of the work. He was prosecuted and convicted. The case was tried upon an agreed statement of facts as in this case. He appealed to the Supreme Court of Kansas, which court affirmed the judgment, and sustained the validity of the statute. The case was then taken to the Supreme Court of the United States, where the judgment of the Supreme Court of Kansas was affirmed.

Justice Harlan, delivering the opinion of the court says:

“Assuming that the statute has application only to labor or work performed by or on behalf of the state, or by or on behalf of a municipal corporation, the defendant contends that it is in conflict with the fourteenth amendment. He insists that the amendment guarantees to him the right to pursue any lawful 'calling, and to enter into all contracts that are proper, necessary, or essential to the prosecution of such calling, and that the statute of Kansas unreasonably interferes with the exercise of that right, thereby denying to him the equal protection of the laws. Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 L. Ed. 186. In this connection reference is made by counsel to the judgment of the Supreme Court of Kansas in Ashby’s Case, 60 Kan. 101, 106, 55 Pac. 336, 338, in which that court said: ‘When the eight-hour law was passed, the Legislature had under consideration the general subject of the length of a day’s labor, for those engaged on public works at manual labor, without special reference to the purpose or occasion of their employment. The leading idea clearly was to limit the hours of toil of laborers, workmen, mechanics, and other persons in like employment to eight hours without reduction of compensation for the day’s services.’ ‘If a statute,’ counsel observes, ‘such as the one under consideration, is justifiable, should it not apply to all persons and to all vocations whatsoever? Why should such a law be limited to contractors with the state and its municipalities? * * * Why should the law allow a contractor to agree with a laborer to shovel dirt for 10 hours a day in performance of a private contract, and make exactly the same act under similar conditions a misdemeanor when done in the performance of a contract for the construction of a public improvement? Why is the liberty with reference to contracting restricted in the one ease and not in the other ?’
“These questions — indeed, the entire argument of defendant’s counsel — seem to attach too little consequence to the relation existing between a state and its municipal corporations. Such corporations are the creatures — mere political subdivisions — of the state for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. They are, in every essential sense, only auxiliaries of the state for the purposes of local government. They may be created, or, having been created, their powers may be restricted or enlarged, or altogether withdrawn at the will of the Legislature; the authority of the Legislature, when restricting or withdrawing such powers, being subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed. Rogers v. Burlington, 3 Wall. 654, 663, 18 L. Ed. 79; United States v. Railroad Co., 17 Wall. 322, 328, 329, 21 L. Ed. 597; Mount Pleasant v. Beckwith, 100 U. S. 514, 525, 25 L. Ed. 699; State Bank of Ohio v. Knopp, 16 How. 369, 380, 14 L. Ed. 977; Hill v. Memphis, 134 U. S. 198, 203, 10 Sup. Ct. 562, 33 L. Ed. 887; Barnett v. Dennison, 145 U. S. 135, 139, 12 Sup. Ct. 819, 36 L. Ed. 652; Williams v. Eggleston, 170 U. S. 304, 310, 18 Sup. Ct. 617, 42 L. Ed. 1047.
“In the case last cited we said that ‘a municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the Legislature/ It may be observed here that the decisions by the Supreme Court of Kansas are in substantial accord with these principles. That court in the present case approved what was said in City of Clinton v. Cedar Rapids & Missouri River R. R. Co., 24 Iowa, 455, 475, in which the Supreme Court of Iowa said: ‘Municipal corporations owe their origin to-, and derive their powers and rights wholly from, the Legislature. It breathes into them the breath of life, without which they cannot exist. As it creates so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the Legislature might, by a single act if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations of the state and the corporations could not prevent •it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the Legislature/ See, also, In re Dalton, 61 Kan. 257, 59 Pac. 336, 47 L. R. A. 380; State ex rel. v. Lake Koen Co., 63 Kan. 394, 65 Pac. 681; State ex rel. v. Com’rs of Shawnee Co., 28 Kan. 431, 433; Mayor, etc., v. Groshon, 30 Md. 436, 444, 96 Am. Dec. 591.
“The improvement of the boulevard in question was a work of which the state, if it had deemed it proper, to do so, could have taken immediate charge by its agents; for it is one of the functions of government to provide public highways for the convenience and comfort of the people. Instead of undertaking that work directly, the state invested one of its governmental, agencies with power to care for it. Whether done by the state directly or by une of its instrumentalities, the work was of a public, not private, character. If, then, the work upon which the defendant employed Beese was of a public character, it necessarily follows that the statute in question in its application to those undertaking' work for or on behalf of a municipal corporation of the state does not infringe the personal liberty of any one. It may be that the state in enacting the statute intended to give its sanction to the view held by many, that, all things considered, the general welfare of employes, mechanics, and workmen, upon whom rest a portion of the burdens of government will be subserved if labor performed for eight continuous hours was taken to be a full day’s work; that the restriction of a day’s work to that number of hours would promote morality, improve the physical and intellectual condition of laborers and workmen, and enable them the better to discharge the duties appertaining to citizenship. We have no occasion here to consider these questions, or to determine upon which side is the sounder reason; for, whatever may have been the motives controlling the enactment of .the statute in-question, we can imagine no possible ground to dispute the power of the state to declare that no one undertaking work for it or for one of its municipal .agencies should permit or require an employe on such work to labor in excess of eight hours each day, and .to inflict punishment upon those who are embraced by such regulations, and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public- work in any mode he may choose to adopt without regard .to the wishes of the state. On the contrary, it belongs to the state, as the guardian and trustee for its people and have control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to re1 view its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern.
“If it be contended to be the right of every one to dispose of his labor upon such terms as he deems best — as undoubtedly it is —and that to make it a criminal offense for a contractor for public work to permit or require his employe to perform labor upon the work in excess of eight hours each day is in derogation of the liberty both of employes and employer, it is sufficient to answer that no employe is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do.
“So, also;, if it be said that á statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor'rests upon legislators, not upon the courts.' No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law. should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true — indeed the public interests imperatively demand — that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution. It cannot be affirmed of the statute of Kansas that it is plainly inconsistent with that instrument. Indeed, its constitutionality is beyond all question.
“Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or to his employe the equal protection of tlie laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the state or-of its municipal subdivisions, and alike to all employed to perform labor on such work.
“Some stress is laid on the fact, stipulated by the parties for the purpose of this case that the work performed by defendant’s employe is not dangerous to life, limb, or health, and that daily labor on it for 10 hours would not be injurious to him in any way. In the view we take of this case, such considerations are not controlling. We rest our decision upon the broad grounds that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for •the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not by its regulations infringe the personal rights of others; and that has not been' done. The judgment of the Supreme Court of Kansas is affirmed.”

The case of Ryan v. City of New York, 177 N. Y. 271, 69 N. E. 599, in the Court of Appeals of New York, is also in point. That distinguished citizen and eminent jurist, lion. Alton B. Parker, as Chief Justice announcing the decision of the court in that case, says:

“Has the Legislature power to provide that its employes and those of the several municipalities shall receive £not less than the prevailing rate5 of wages in the locality? In other words, has the Legislature — which possesses all the power of the sovereign not expressly withheld by the Constitution — power to provide that work done for it or its several subdivisions shall be paid for at such a rate as individuals and corporations in the same locality pay? That question was before this court some years ago in so far as it affects the right of the Legislature to fix the rate of’ wages of laborers upon the works of the state. Clark v. State of New York, 142 N. Y. 101, 36 N. E. 817. In 1889 the Legislature passed an act (Laws 1889, p. 508, c. 380) providing that the rate of wages upon the public works of the state should be $2 a day, That was more than the then prevailing rate, and there were those who questioned the power of the state to interfere with its agents in fixing the wages of men working under them. They thought- the superintendent of public works had the sole power of fixing wages of employes in that department, and therefore could defy the direction of the Legislature as to the amount of compensation to be paid, although he could disburse such moneys only as were appropriated by the Legislature, and they entreated the Attorney General to commence an action to have the court declare the impotency of the Legislature to interfere on the important subject of compensation to laborers. But, when the case reached this court in 1894, the Attorney General was unable to point to the provision of the Constitution which divested the representatives of the people for all matters of legislation of this power, and vested it in the several inferior officials having charge' of certain administrative duties conferred, upon them in the majority of instances by acts of the same Legislature. The court — unaffected, as was its duty, by the argument that the statute was unwise, and mindful that its duty was discharged fully, and could only bo discharged b_y declaring whether the Legislature had the power to enact the statute complained of — unanimously.held that tlie power belonged to it. Judge O’Brien writing for the unanimous court, says (142 N. Y. 101, 105, 36 N. E. 817, 818): ‘There is no express or implied restriction to be found in the Constitution upon the power of the Legislature to fix and declare the rate of compensation to be paid for labor ot services performed upon the public works of the state.’
“The principle of that decision controls this one. There the Legislature undertakes to fix arbitrarily the sum to be paid every employe of the state. Here the Legislature undertakes to provide for the payment of not less than the prevailing rate of wages, not only to the direct employes of the state, hut also to its indirect employes working in several subdivisions — the cities, counties, towns, and villages. In the administration of the affairs of those subdivisions, as well as in those of the state at large, the Legislature is unrestrained unless by express provisions of the Constitution. As expressed in Roder's Case, 166 N. Y. 1, 29, 59 N. E. 716, 723, 52 L. R. A. 814, 82 Am. St. Rep. 605: ‘The authority of the state is supreme in every part of it, and in all the public undertakings the state is the proprietor. For convenience of local administration the state has 'been divided into municipalities, in each of which there may be found local officers exercising a certain measure of authority, but in that which they do they are but the agents of the state, without power to do a single act beyond the boundary set by the state acting through its Legislature.’ Thus all of these agencies and employes in the several municipalities are doing the work of the state, which is the sovereign and master.
“Nevertheless, we find that the argumeni is again made, as in 1894 in Clark’s Case, that- the Legislature is without power to interfere with the agencies it has created for the government of the municipalities. And this is said in the face of the decision in Clarke’s .Case, and notwithstanding the fact .'that the Legislature has the power at any time to absolutely change the form of government of a municipality, to blot out,of existence any municipal charter, or to consolidate, several municipalities under a single /charter, as it did in the .creation .of Greater New York. And this argument is made in spite of the. .many .well-known illustrations of power-of .thé Legislature, to control .the .affairs ol^ municipalities. .The scope of that power is, illustrated by the construction of the new aqueduct by a board created by 'the. Legislature, the expense being charged upon the city of New York, although not a single officer of tlie city had a voice in controlling the expenditure of the millions that its construction involved, and by the act compelling the elevation of the Harlem Bailroad tracks in the city of New York, and the imposition of one-half of the expense, amounting to several millions, upon the city of New York, the work all being done through an agency created by the state.
“Not only does the Legislature fix the salaries of the prin-pal municipal officers throughout the state, but in the city of New York, where this case arises, it fixes the rate of compensation-for many laborers. The street cleaning, department will serve as an illustration. The charter provides for the payment of definite sums in some eases, and for a maximum sum in others, for a force numbering over 5,000 employes in that department and including 3,100 sweepers and 1,600' drivers, hostlers, and stable foremen. The charter in this respect has the support of Clark’s Case, supra. Now, there are a few mechanics connected with the department whose compensation is not fixed by the charter, and who, therefore, come under the prevailing rate provision of the labor law. Their compensation could be fixed, of course, at a definite sum, as that of the other employes is, but, instead, it is provided, in effect, that they shall be paid at a rate not less than that paid by others for similar services in that locality. Certainly no one can argue that the Legislature can provide that the street sweeper shall he paid fox example $2 a day, but cannot provide that he shall be paid the prevailing rate of wages when that happens to be $2. But, if one can be found who will attempt to make such an argument, surely it can be safely said that he cannot find a constitutional provision upon which to rest it.”

The foregoing opinions and ¿uthorities therein cited set forth the true principles upon which this statute must be sustained. If the principles enunciated, and the conclusions therein reached are correct, and we believe they áre, and hereby adopt them, they conclusively refute and fully answer the contention of defendant that the statute under consideration in this case is unconstitutional and void. 1

The Constitution of Oklahoma expressly reserves to the state control over all public highways, including the roads, streets, and alleys of its municipalities. The opening, construction and maintenance of public highways is purely a governmental function, whether done by the state directly or by one of its municipalities, for which the state is primarily responsible. And it is immaterial whether such public work is paid for by the state, the county, the city, or by the benefited property' owners. It is a work of a public, not private, character. The manner of payment does not change the character of work.

For the reasons stated, the judgment of the county court of Logan county is hereby affirmed, and the cause remanded with direction to carry into effect the judgment.

FURMAN, PRESIDING Judge, and BAKER, Judge, concur.


source: Caselaw Access Project

author: DOYLE, Judge,

license: Public Domain

text:
    D. C. Stout v. Territory.
    No. 2183,
    Okla. T.
    Opinion Filed July 24, 1909.
    (103 Pac. 375.)
    1. INDICTMENT AND INFORMATION — Sufficiency—Statutory Offense. Where the statute provides that any one of a certain-class of persons, who shall do a certain act under certain circumstances, shall be guilty of a crime, the indictment or information must describe the person accused as one of that class, and aver that he did the act under the circumstances which made it a crime, as this fact is an essential element of the crime.
    2. SAME. Where the statute (Wilson’s (Rev. & Ann. St. 1903, sec. 5358), creates and defines an offense, an indictment or information which does not allege all the essential elements constituting such offense is insufficient.
    3. INTOXICATING LIQUORS — Sale on Sunday — Indictment—Sufficiency. Where an indictment charging a violation of section 2616, Wilson’s Rev. & Ann. St. 1903, which provides: “Every innkeeper, or person licensed to sell liquors, who sells or gives away any strong or spirituous liquor, or wine, upon Sunday, is guilty of a misdemeanor” — fails to allege that the defendant was an innkeeper or a person, licensed to sell liquors, held that said indictment fails to state facts sufficient to constitute an offense under said section.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; B. F. Burwell, Judge.

    D. C. Stout was convicted of a violation of Wilson’s Eev. & Ann. St. 1903, § 2616, making an innkeeper, or person licensed to sell intoxicating liquor, who shall sell on Sunday, guilty of a misdemeanor, and he appealed to the Supreme Court of Oklahoma Territory, whence the cause tvas transferred to the Supreme Court of the state of Oklahoma, and from thence .to the Criminal Court of Appeals.
    Reversed and remanded, with directions.
    This conviction was had upon an indictment returned at the April, 1907, term of the district court of the Third judicial district of the territory of Oklahoma, held in and for Oklahoma county. The charging part of which indictment reads as follows:
    “Do present and find that in said county of Oklahoma, in said territory of Oklahoma, on the 7th day of April, in the year of our Lord one thousand nine hundred and seven, the said defendant, D. C. Stout, did unlawfully and wrongfully sell malt, spirituous, and vinous liquors on the first day of the week, commonly called Sunday,' contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the territory of Oklahoma.”
    To which indictment defendant filed his demurrer, and for grounds thereof alleges:
    “(1) That the indictment does not substantially conform to the requirements of the criminal procedure act of the territory of Oklahoma; (2) that more than one offense is charged in the indictment; (3) that the facts stated do not constitute a public offense.”
    Which demurrer was by the court overruled and .exception allowed.
    Upon the trial on April 24, 1907, the jury returned a verdict finding the defendant guilty as charged. A motion for a new trial and motion in arrest of judgment having been filed, the same were on the 25th clay of April, 1907, bjr the court overruled, and exceptions allowed. Whereupon the court pronounced judgment, and sentenced defendant to pay a fine of $150. Defendant gave notice of an appeal to the Supreme Court of Oklahoma Territory. On August 23, 1907, his petition in error and case-made was filed with the clerk of said court. Upon the organization of the state of Oklahoma, under the provisions of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267), and the state Constitution, said cause was transferred to the Supreme Court of the state. Upon the organization of the .Criminal Court of Appeals the Supreme Court, as provided by law, transferred the cause to this court. At the May, 1909, term said cause was submitted.

      Ledm Guthrie, for appellant.

      Charles West, Atty. Gen., and E. G. Spilman, Asst. Ally. Gen., for the Territory.
   DOYLE, Judge,

(after stating the facts as above). This was a criminal prosecution under the liquor license law of Oklahoma Territory.

The first proposition contended for is that “the court erred in overruling defendant’s demurrer to the' indictment.” Counsel for appellant predicate this proposition upon the assumption that the offense charged was a violation of section 3410, Wilson’s Rev. & Ann. St. 1903, which reads as follows: “Every person who shall sell or give away any malt, spirituous, and vinous liquors on .the day of any special or general election or at any time during the first day of the week, commonly called Sundai^, or who shall keep an open saloon after midnight, or open same before five o’clock in the morning shall forfeit and pay for every such offense the sum of one hundred dollars”. — and contends that the aforesaid section provides for a forfeiture only, but does not make the offense charged a misdemeanor. Counsel for the state in their brief argue that: “It is not denied that the section of the statute quoted contemplates a forfeiture of money in case the things inhibited by the law are done, and that this means that the person who sells liquors as prohibited subject themselves to suit on their bond and the payment of money. But it is also true that the indictment in this case charges the unlawful and wrongful selling of ‘malt, spirituous, and vinous liquors." This language is broad enough to cover the offense, and bring it within ihe meaning of section 2616, Wilson’s Statutes,” which reads as follows: TEverjr innkeeper, or person licensed to sell liquors, who sells or gives away any strong or spirituous liquor, or wine, upon Sunday, is guilty of a misdemeanor.” Counsel for the state conclude as follows:

“The record fails to substantiate this conclusion, and it would appear otherwise from the fact that the court, in imposing sentence and rendering judgment, did not fix the fine at $100, as provided by section 3410, cited, but did impose a fine of $150, which would conclusively lead to the presumption that the fine was assessed under section 2616, rather than section 3410, and that defendant was tried and convicted-under section 2616, supra.’3

We believe that this indictment was intended to charge an offense under section 2616, Wilson’s Statutes. This section only applies to innkeepers, or persons licensed to sell intoxicating liquors. It was intended to reach the ease of a licensed liquor dealer, who, under the provisions of the act to regulate the traffic in intoxicating liquors, should violate the conditions of his license as expressed in the foregoing section. The indictment does not aver that the defendant was an innkeeper or a person licensed to sell liquor. In a prosecution under said section this became a necessary and essential allegation. The record shows that proof was offered, tending to show that defendant was a licensed liquor dealer at the timie alleged. For this reason we are of opinion that the indictment lacks the certainty required in criminal pleading, and is therefore insufficient.

“It is undisputed law that, when a statute enacts that any one of a certain class of persons, who shall do or omit a certain act under certain circumstances, shall be guilty of a crime, the indictment must describe the person indicted as one of that class, and .aver that he did or omitted the act under the circumstances which made it a crime. Every one of .these things is an essential constituent of the crime.” (State v. Sloan, 67 N. C. 357.)

See, also, Tilsworth v. State, ante, p. 268, 101 Pac. 288.

The defendant’s demurrer should have been sustained. It is evident that the indictment is not direct and certain as regards the offense charged, and the particular circumstances of the offense charged that are necessary to constitute a complete offense under said section. Section 5358, Wilson’s Statutes provides:

“The indictment must be direct and certain as it regards: First, the party charged; second, the offense charged; third, 'the particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

It is a well-settled principle of criminal pleading that, where a statute creates and defines an offense, an indictment or information which does not allege all the essential elements constituting such offense is insufficient.

With this view of the case, it is not necessary to pass upon the assignment of error in relation to the instructions given.

The judgment of the district court is therefore reversed, and the case remanded, with directions to sustain the demurrer to the indictment.

FURMAN, PbesidiNg Judge, and OWElN, Judge, concur.


author: OWEN, Judge, PEE CURIAM.

text:
    Ketch Canard and Joe Whitmire v. State.
    No. 182.
    Opinion Filed July 27, 1909.
    (103 Pac. 737.)
    1. INDICTMENT AND INFORMATION — Information in Felony. A felony may be prosecuted by information. For opinion of this court see In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, which is here approved.
    2. SAME — Sufficiency. In the prosecution of a defendant by information for a felony, it is not necessary that the information should allege that there was a preliminary hearing before a committing magistrate, or a waiver of the same, although such facts must exist in order to authorize the filing of such information.
    3. SAME — Presumption in Favor of. When the information is filed in court by the .county attorney, the presumption of law is that it is legal; that the examination of the defendant has been had or waived.
    4. SAME — Motion to Quash — Preliminary Examination. Whether an examination has or has not been had is not a question of pleading, but a question of fact, to be raised by the defendant or not at his option, by a motion to quash, supported by affidavits.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee, Countyj John F. King, Judge.

    lvetch Canard and Joe Whitmire were convicted of forgery, and they appeal.
    Affirmed.
    This is a prosecution by information, filed by the county attorney in the district court in Muskogee county, charging' the plaintiffs in error (herein referred to as the defendants) with the crime of forgery. To this information the defendant interposed a demurrer. This demurrer was overruled. Trial was had, which resulted in a verdict of guilty. The defendants in due time filed motion for new trial, which was overruled, to which an exception was reserved, and the case is in this court on appeal.

      Oooh (& De Graffenreid, for plaintiffs in error.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen.; for the State.
    — On question of necessarjr allegations in information: In re McNaught, 1 Okla. Cr. 528; State v. Farris, 5 Idaho 666; State of Washington v. Fben L. Boyce, 24 Wash. 514; Anderson v. Stale, 5 Wash. 351; People v. Shubriclc, 51 Cal. 565; State v. Moore, 2 Penn. (Del.) Rep. 2'99; State v. Lends, 31 Wash. 515; Stale v. Barnett, 3 Kan. 250; Stale v. Finley, 6 Kan. 366; Hieles v. People, 10 Mich. 395; Commonwealth v. Brennan, 193- Pa. 567; Miller v. United States, 8 Olda. 315; Wier et al. v. Allen el al., 47 la. 482; Vickers v. People, 31 Colo. 491; People v. Connor, 17 Cal. 384; Keith v. Ter., 8 Olda. 307; Fisher v. IT. S., 1 Olda. 195; Jones v. Territory, 4 Olda. 45; 27 Cen. Dig.. Indictment and information; §§ 108-114; 22 Gye. 234.
   OWEN, Judge,

(after stating .the facts as above). Two questions are presented by the record in this case: First. Can a felony be prosecuted by information? Second. Is it necessary to allege; in an information charging a felony, that defendant has had a preliminary examination before a magistrate; or that such preliminary examination was waived?

The first question presented was settled by this court in the case of In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241. The opinion in that ease decides this question, and is approved here.

As to the second question, section 26, Bunn’s Constitution of Oklahoma is as follows:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate or having waived such preliminary examination.”

Counsel for defendants urge with much force that the trial court acquires no jurisdiction of a felony charge prosecuted by information, unless the defendant has had a preliminary examining trial, or has waived the same, and that the information must allege one or the other. We agree with counsel that there must be an examination or a waiver, but do not agree with their contention that it is necessary- to plead this examination or waiver in order to give the court jurisdiction. We understand the rules governing prosecutions by information to be identical with those governing prosecutions by indictment. When the information is filed in court by the prosecuting attorney, the presumption of law is that it is legally done; that the examination of the defendant has been had or waived, and consequently the court has jurisdiction the same as when an indictment has been returned by a grand jury in open court. When an indictment is presented by a grand jury in open court, the presumption is that it is legally presented; that the jurors were properly summoned, legally qualified, and competent, and that the required number, ■at least, concurred in the finding. These facts, though essential to the lawful finding and presentment, are not necessary to be set forth in the indictment. Washburn v. People, 10 Mich. 372. Whether an examination has or has not been had is not a question of pleading, but a question of fact 'to be raised by the defendant or not at his option, which fact is always within the knowledge of the defendant. If he claims that this right or privilege has been denied to him;, and will insist on his right to it, he can and should do so Avhen he is arraigned on the information. The fact that a prisoner has not been given an examination before an examining magistrate before the filing of an information against him is a matter that may be properly pleaded in abatement, or by motion to quash, which is in the nature of a plea in abatement, founded on affidavits or such other proofs as the court may permit. If it were necessary to allege a preliminary hearing, it would be necessary to prove it. Would this not work prejudice to the defendant? Would not proof that the examining magistrate had believed the defendant guilty on examining trial influence the jurjr against him? Would it not put upon the defendant an additional burden to permit the prosecuting attorney' to argue as a circumstance tending to establish defendant’s guilt that the examining magistrate wlio held the examination immediately after the commission of the alleged crime believed.the defendant guilty?

We find that the courts of Iowa, Delaware, Idaho, Michigan, Washington, Kansas and California have passed on the question at issue here under similar constitutional provisions and statutes, and have all held against the contention of counsel for defendant.

The Constitution of the state of Delaware (article 5, § 7) provides that prosecutions upon informations shall only be had after examination and commitment, and held to bail by a judge or justice of the peace. The Supreme Court of that state, in construing this provision of the Constitution, in the case of State v. Moore, 2 Pennewill (Del.) 299, 46 Atl. 669, held:

“It is not necessary, in order to give the court jurisdiction, to aver in the information an examination and commitment or holding to bail of the defendant. It is a matter of defense, and defendant may avail. himself of the failure to proceed by examination and commitment or holding to bail by a'plea in abatement.'”

Under the provisions of the Constitution and statutes of •Idaho, before a defendant can be prosecuted for a criminal offense, such defendant must either have had a preliminary examination or have waived the same. The Supreme Court of that state in the case of State v. Farris, 5 Idaho, 666, 51 Pac. 772, in construing these provisions, held:

“We do not think the first objection is well taken. There is nothing in either the Constitution or the statutes which, directly or by implication, requires that the fact of there having been a preliminary examination should be set forth in the information.”

The court in that case held, and we think properly, that ■an information filed without such preliminary examination or waiver thereof confers no jurisdiction upon the trial court.

In the state of Michigan the statute provides that:

“No information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law before a justice of the peace,' or other examining magistrate or officer, unless such person shall waive his right to such examination.” (Laws 1859, p. 393, No. 138, § 8.)

The Supreme Court, in construing this section in Washburn v. People, 10 Mich. 372, says:

■ “It is not doubted that a defendant * * * has a right to insist upon such examination before he can be put upon his trial, or called upon to answer the information. But the statute is express that he may waive his right; and we think he may waive it when called upon to plead to the information, as well as when brought before the magistrate for examination. It is not a matter which goes to the merits of the trial, but to the regularity of the previous proceedings. If he malee no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he has .waived or now intends to waive it. If he intends to insist upon the want of the examination, we think he should, by plea in' abatement, set up the fact that it has not been had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information. The latter is the simpler course. The circuit court is a court of general criminal jurisdiction, and the proceeding by information instead of indictment is not, under this statute, an exceptional or special one, but the general mode provided for the prosecution of offenses. We can therefore see no more satisfactory reason for ¡requiring this preliminary examination or its waiver to be set out in the information than for averring in an indictment that the grand jury was composed of at least 16' competent jurors, or that the indictment was found by at least 12, or any other fact essential to the constitution of a legal grand jury. We cannot think it necessary, on the trial for an offense, to prove the fact of such examination or waiver more than on the trial under indictment to prove the preliminary matters referred to. The same rule should apply to both. * * * If not necessary to be proved, it need not be alleged.”

The Supreme Court of the state of Washington, in passing on this question in the case of State v. Anderson, 5 Wash. 350, 31 Pac. 969, held it was not necessary to allege that the accused had had a preliminary hearing, or that he had waived the same. The syllabus is as follows:

“In the prosecution of a defendant by information for a criminal offense it is not necessary that the information should allege that there was no grand jury in session., and that defendant had been committed on said charge by a magistrate, although such facts must exist in order to authorize the filing of an inform ati on.”

This case was approved by the same court in the case of State v. Boyce, 24 Wash. 514, 64 Pac. 719, and again in the ease of State v. Lewis, 31 Wash. 515, 72 Pac. 121.

In the state of Kansas the law provides:

“No information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor as provided by law * * * unless such person shall waive his right to such examination.” (Laws 1864, p. 113, c. 64, § 8.)

The Supreme Court of that state, in the case of State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471, in construing that section of the law, says:

“A defendant not coming within the exceptions named in that act is entitled under it to a preliminary examination and may plead its omission, but it is not necessary that the information should allege such examination or waiver of it; that being a matter which goes, not to the merits of the trial, but to the regularity of the previous proceedings.”

The same court, in the case of State v. Finley, 6 Kan. 366, in passing on this question, says:

Cfli is true that, before the county attorney is authorized tó file an information in a criminal action in the district court, there must have been a preliminary examination, unless defendant has first waived such examination, * * * But it is not necessary that the information itself should show these facts. * * . * All that is required of the information is that it charge the,offense sufficiently, and show that it is prosecuted by the proper officer. If there had been in fact no preliminary examination in this case, and no sufficient cause existed for filing the information without a preliminary examination, the defendant should -have raised the , question in the court below, in a proper manner,, as by a plea in abatement.” |

Before a prosecution by information for a felony can legally be bad in this state, it must'be preceded by a preliminary examination before an examining magistrate, or the accused must have waived such examination. In the case at bar the information is silent as to whether or not such preliminary examination was had, or whether or not the same was waived by the defendants. The question, having been raised by demurrer, depends upon matter apparent on the face of the information. Under the presumption of law that when an information is filed by the prosecuting attorney of the county, it is legally done, and that the examination of the defendant has been had or waived, we must presume in this ease that the defendants did have their preliminary hearing, and that the trial court had jurisdiction.

Denied September 10, 1909.

(103 Pac. 881.)

Therefore we are of the opinion that the demurrer was properly overruled, and there was no error in the action of the court in overruling the motion for new trial, which raised the same question, and the judgment of the court below is affirmed.

FURMAN, PeesidiNG Judge, and DOYLE, Judge, concur.

ON PetitioN For Rehearing.

PEE CURIAM.

The decision in this case, affirming the judgment of the district court, was filed the 87 th. day of July, 1909. On July 30, 1909, plaintiffs in error filed their petition asking for a rehearing. The reasons assigned in the petition are as follows:

‘‘■First. Because the court erred in holding that the plaintiffs in error could be prosecuted for felony by information which did not allege and affirmatively show that the plaintiffs in error had previous to the filing of the information an examining trial or waived such.
“Second. Because the court erred in the opinion in holding that the district court had jurisdiction of the offense charged. without showing that an examining trial or a waiver of such had been had.
“Third. Because the court erred in holding that it was not necessary to allege, in an information charging felony, that defendant had had a preliminary examination before a magistrate, or that such an examination had been waived.”

Buie 9, adopted by this court July 1, 1909, with reference to petitions for rehearing, provides as follows:

“Such petition shall briefly state the grounds upon which counsel relies for a rehearing, and show either that some question decisive of the case and duly submitted by the counsel has been overlooked bjr the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral .argument, or which has been overlooked by the court, and the question, statute, or decision so overlooked must be distinctly and particularly set forth in the petition.”

The petition filed in this case does not comply with this rule. There is no contention made that this court has overlooked any decisive question in this case, or that the decision is in conflict with an express statute or controlling decision to which the attention of the court was not called in brief or oral argument, and no contention that this court has overlooked any controlling decision or express statute, and no additional authorities have been called to the attention of the court on the questions raised in the original hearing.

The petition for rehearing will be denied.


author: OWEN, Judge,

text:
      Ex parte Wm. Westmoreland.
    No. A-232.
    Opinion Filed July 27, 1909.
    (103 Pac. 370.)
    1. BAIL — Jurisdiction to Adrriit to Bail in Capital Cases. A justice of the peace is without authority of law to admit to bail upon arrests in criminal cases where the punishment may be death.
    2. BAIL — Bailable Offenses. Under section 8, art. 2, of the Constitution, persons charged with capital offenses are bailable by suf-ficient sureties, except when the proof of guilt is evident or the presumption thereof is great.
    (Syllabus by the Court.)
    Petition by William Westmoreland for writ of habeas corpus. Petitioner admitted, to bail.
    The petitioner, William Westmoreland, files his petition, properly verified, praying for a writ of habeas corpus, and alleges that he is confined and being illegally restrained by Thomas M. Latham, sheriff of Texas county, Okla., by virtue of a certain warrant issued on the 19th day of June, 1909, by J. E. Wharton, justice of the peace of Guymon township, Texas county, Olda., charging him with the commission of a crime of murder. He alleges the facts to be that prior to the issuance of the warrant, by virtue of which he is now restrained, the said J. E. Wharton issued a warrant on proper information filed before him, charging this petitioner with the crime of murder, and that by virtue of said warrant he was taken before the said J. E. Wharton, justice of the peace, and given a preliminary hearing, and on said hearing bound over to await the action of the district court, and was by the said J. E. Wharton, justice of the peace, admitted to bail in the sum of $10,000j which bail he had made, with good and sufficient sureties; that on approving said bail the said justice ordered the said Thomas M. Latham, sheriff of Texas county, to release him from custodj', and that in obedience to said order he was released; that a short time thereafter on the same day the said justice issued the warrant under which petitioner is now restrained, said warrant being based on the original information filed before him, and charging the petitioner with the offense on which he had been given a preliminary hearing. The petitioner prays that he be discharged from custody, or, in the event this court is of the opinion that the justice of the peace acted without authority in admitting him to bail, that this court proceed to examine as to the facts relating to the charge against him, and that he be admitted to bail in such sum as this court deems proper. The attorneys lor petitioner waive his appearance at this hearing. The sheriff files his answer, admitting the facts set forth .in the petition as substantially correct.
    In support of the petition there was filed the following agreed statement of facts, signed by the attorneys for petitioner and the county attorney, to wit:
    “Now come Wallace G. Hughes, county attorney of Texas county, Oklahoma, and Wiley & Harris, who represent the defendant, and agree that the evidence in this case will show that the homicide took place at the home of the defendant in the town of Guymon, and that defendant was at his home sick in bed, and the deceased came to the home of the defendant and attempted to get into the home of the defendant through a window, and had taken down the wire screening on said window in his efforts to enter the home of the defendant; that, failing to get into the home of the defendant through the window, the deceased then went around to the back door of the home of the defendant and attempted to enter said door, when the defendant fired the fatal shot, and that the deceased was mortally wounded and died on the porch of the defendant; and the evidence will further show that the defendant is a small man, and the deceased was a large, strong man, and that the county attorney has failed to find any testimony contradicting this evidence, and believes that the above testimony is true and that on this basis he recommended to the justice of the peace who held the preliminary trial that defendant be admitted to bail in the sum of $10,000/’

      Wiley & Ilams, for petitioner.

      Ohas. West, Atty. Gen., and Olías. L. Moore, Asst.-Atty. Gen., for the State. ,
   OWEN, Judge,

(after stating the facts as above). The only question to be determined in this case is: Did the justice of the peace act without authority in admitting the petitioner to bail after binding him over to await the action of the district court? Section 8 of article 2 of the Constitution of the state of Oklahoma is as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

There is no provision in the Constitution as to what court or officer, shall admit to bail. Section 5770, Wilson’s Rev. & Ann. St. Okla. 1903-, provides:

“Bail, by sufficient sureties, may be admitted upon all arrests in criminal eases where the punishment may be death, unless the proof is evident or the presumption great; and in such cases it shall be taken only by the Supreme 'Court or a district court, or by a justice or judge thereof. * * *

It is clear, from reading this section, that the justice of the peace, in admitting the petitioner to bail, acted without authority. The justice acted within his power and jurisdiction when he issued the second warrant on the original information, and directed that the defendant be again taken into custody by the sheriff.

On considering the agreed statement of facts in this case, this court is of the opinion that under section 8, art 2‘, of the Constitution, above set out, the petitioner should be admitted to bail, and this court fixes the amount of the'bail in the sum of $10,000, to be approved by the sheriff of Texas county, Okla. It is therefore ordered'by this court that a mandate-issue to the proper authorities of Texas county, Okla., admitting the petitioner to bail in the sum aforesaid.

FURMAN, PeesidiNg Judge, and DOYLE, Judge, concur.


text:
    Hamp Snapp v. State.
    No. 170.
    Opinion Filed July 27, 1909.
    (103 Pac. 553.)
    1. ■ INDICTMENT AND INFORMATION — Misdemeanor—“Information.” The office of an “information” charging- a misdemeanor, under the criminal procedure act of Oklahoma, is not only to give the county court jurisdiction to issue the warrant of ai-rest, but it is also the pleading- on the part of the state, informing said defendant of what offense he is charged with, for the purpose of the trial.

      2. SAME — Verification—Demurrer. Section 5306, Wilson’s Rev. & Ann. St. 1903, provides: “The county attorney shall subscribe his name to informations filed in the probate or district court and indorse thereon the names of the witnesses, known to him at the time of filing the same. He shall also indorse thereon the names of such .other witnesses as may afterward become known to him, at such time before the trial as the court may by rule prescribe. All informations shall be verified b3' the oath' of the prosecuting attorney, complainant or some other person” Held, that overruling a demurrer to an information, not verified as ■ required by the foregoing section, constitutes reversible error.
    (Syllabus by the Court.)

      Error from McClain County Court; E. E. Glaseo, Judge.

    Hamp Snapp was convicted of unlawfully selling liquor, and brings error to the Supreme Court. ’Cause transferred to Criminal Court of Appeals.
    Beversed and remanded.
    This conviction was had on an unverified information filed in the county court of McClain county, by the county attorney of said county, which information, omitting the formal part, reads as follows:
    “Comes now Ben Franklin, the duly qualified and acting county attorney, in and for McClain county, and state of Oklahoma, and on his official oath gives the county court in and for said MoClain county and state of Oklahoma, to know and be informed that the above-named defendant Hamp Snapp, did, in McClain county, and in the state of Oklahoma, on the 24th day of December, in the year of our Lord A. D. 1907, commit the crime of selling intoxicating liquors in manner and form as follows. The defendant aforesaid at the time and place aforesaid did sell baider and deliver to one Zeb White, and others whose names are to this informant unknown, a quantity, the amount of which is to this informant unknown, of intoxicating liquor; namely, whisky, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma. Ben Franklin, County Altorney, McClain County.” . '
    To which information a demurrer was filed, which demurrer the court overruled, exception allowed. Whereupon the defendant was duly arraigned and entered a plea of “not guilty.” On Jan-nary 15, 1908, a trial was had, which resulted in a verdict of guilty. On said day a motion for a new trial was filed. On January 1?, 1909, a motion in arrest of judgment was filed, which motions were by the court overruled, and exception allowed. Whereupon the court sentenced defendant to pay a fine of $2'50 and to be confined six months in the county jail. On April 29, 1908, defendant filed his petition in error and case-made in the Supreme Court. Upon the organization of the Criminal Court of Appeals, the Supreme Court transferred, as provided by law, said cause to this court. At the May term, 1909, of this court, said cause was submitted.

      Bennie, Hocker & Moore, for plaintiff in error.

      Fred S. Caldwell, for .the State.
   DOYLE, Judge,

(after stating the facts as above). The petition sets fforth numerous 'assignments! of ¡error, which are argued in the brief. However, it is unnecessary to notice but the one, that:

“The court erred in overruling defendant’s demurrer to the information, which demurrer was properly presented prior to the plea herein, and exception properly saved thereto by proper motion in arrest of judgment was by the court overruled, to which the defendant duly excepted: v (A) Because said information was not verified. (B) Because said information fails to state that the sale complained of was an unlawful sale. (C) Because said information charges more than one offense, charging a sale to one Zeb White, and also sales to other persons unknown to the county attomejc (D) Because said information concludes ‘against the form of the statutes in such cases made and provided’; and, whereas there is no statute of Oklahoma prohibiting such sales. (E) Because there are no names of witnesses indorsed on said information.”

Under this assignment the question presented is identical with that in the case of Salter v. State, ante, p. 464, 102 Pac. 719, wherein this court held that a verification upon information and belief is not in law or in fact a verification on oath or affirmation, and in the case of De Graff v. State, post, p. 518, 103 Pac. 538, the question has been fully determined. See, also, Ex parte Flowers, ante, p. 430, 101 Pac. 860. The third paragraph of the syllabus in the Flowers Case is as follows:

“Under the laws of this state no particular form of affidavit charging the commission of a misdemeanor is prescribed. Such affidavit sufficiently complies with the requirements of the statutes when it substantially states an offense' defined by the statutes, and such affidavit is sufficient to base an information upon, provided that the information predicated on such affidavit is positively sworn to by the county attorney.”

Counsel for the state in his brief contends that:

“An information of this sort filed by a prosecuting attorney of this state requires no verification other than the official oath of the public prosecutor, and section 1960, Gen. St. Olda. 1908, the same being from Sess. Laws Okla. T. 1895, p. 189, c. 41, § 5, in so far as it undertakes to require any other or different verification on the part of county attorneys,' is repugnant to section 26’, art. 2, of the Constitution of the state of Oklahoma. If the Constitution, in providing that crimes maj1' be prosecuted by information, used the term ‘information* in its common-law sense, and an ‘information* at common law required no verification other than the official oath of the public prosecutor, by what authority can the Legislature change the common-law sense in which the term ‘information* has been used in the Constitution by requir-, ing informations to be verified in a manner entirely unknown to the common, law ?**

In the opinion rendered in the case of Salter v. State, supra, this court said:

“This contention is obviously without merit. The error of the argument is so self-evident as to require only a passing notice. Counsel overlooks the fact that by the adoption of the fourth amendment of the federal Constitution the procedure by information lost its prerogative function or quality. It could not thereafter be the vehicle of preferring any arbitrary accusation. United States v. Tureaud (C. C.) 20 Fed. 621. The constitutional provision in the Bill of Rights is but a reiteration of this essential safeguard of the liberty and security of the citizen against the arbitrary action of those in authority. Such pernicious practice may suit the purpose of despotic power, but is alien to the pure atmosphere of political liberty and personal freedom. The Constitution expressly requires a showing.of cause before a warrant shall issue, and the constitutional safeguards for security and liberty cannot in this manner be abrogated or abridged. They must stand as adopted by the people.”

Clearly, within the eases above cited, the judgment in this case cannot be permitted to stand. As the case must be remanded for a new trial we wish to call attention to the fact that the instruction defining “reasonable doubt” is erroneous. See Abbott v. Territory, 1 Okla. Cr. 1, 94 Pac. 179, 16 L. R. A. (N. S.) 260; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.

For the reasons stated in Salter v. State, and De Graff v. State, supra, the judgment of the county court of McClain county, in this case, is hereby reversed, and the case remanded to that court for further proceedings not inconsistent with the views expressed in this opinion.

FUBMAN, PRESIDING Judge, and OWElN, Judge, concur.