text:
      Ex parte Thomas.
    No. 331.
    Opinion Filed August 29, 1908.
    (97 Pac. 260.)
    WEAPONS — Regulation—Statutes—Bill of Rights. The provisions of the statutes of Oklahoma (sections 2502, 2503. Wilson’s Rev. & Ann. St. Okla. 1903) prohibiting the carrying of the weapons therein set out are not repugnant to each other, or violative of section 26 of article 2 of the Bill of Rights of the Constitution of Oklahoma, but are valid provisions of such statutes extended to and put in force in the state by the provisions of section 21 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) and section 2 of the Schedule of the Constitution.
    (Syllabus by the Court.)

      Habeas corpus on petition of Richard Thomas.
    Writ denied.

      J. M. Springer, for petitioner.

      Chas. West, Attorney General, and W. C. Reeves, Assistant Atiy. Gen., for respondent.
   Dunn, J.

Richard Thomas was charged by information filed in the county court of Payne county, Okla., with the offense of willfully and unlawfully carrying on or about his person a pistol, concealed, contrary to the statute, etc. Pie was sentenced to pay a fine' of $25 and to be incarcerated in the county jail for 30 days, and, on being taken in charge by the sheriff under this sentence, brought this original action of habeas corpus in the Supreme Court, praying a discharge. The agreed statement of facts and the briefs of the counsel submit to this court for its consideration and decision the question as to the status of the law in reference to carrying weapons in this state. Counsel for petitioner makes a very ingenious argument on the subject, but in our judgment it is more ingenious than sound. He contends that there is no law in the state of Oklahoma to prevent or regulate' the carrying of arms or weapons, and his line of reasoning is as follows: Section 583, c. 25 (section 2502), Wilson’s Rev. & Ann. St. 1903, is as follows:

“It shall be unlawful for any person in the territory of Oklahoma to carry concealed on or about his person, saddle, or saddle bags, any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife or instrument manufactured or sold for the purpose of defense except as in this article provided.”

This section, counsel contends', is repealed by the one which follows it, which reads as follows:

“It shall be unlawful for any person in the territory of Oklahoma, to carry upon or about his person, any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided.”

The contention on these two sections is that, if a person is prohibited from carrying weapons at all, he is certainly prohibited from carrying them concealed, and, as the first paragraph and the evil intended is fully included in the second paragraph, the first is rendered inoperative, void, and of no force and effect. He admits that his client carried the pistol mentioned, and he seeks to avoid the force of the second paragraph which prohibits the carrying of any weapons whatever by the provision of the Constitution of the state (section 26, are. 2; section 35, Bunn’s Constitution), which reads as follows:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or m aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

Under this section he conceives the idea that his client had the absolute right to carry the pistol for which he is now being punished; that section 2503 is in conflict with this section of the Constitution, and must fall; that section 2502, which prohibits the carrying of weapons concealed, and hence a regulation thereof, and not a prohibition, is in conflict and repealed by section 2503, and hence was not carried into force and effect by section 2 of the Schedule of the Constitution, which provides that:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the .state of Oklamoma until they expire b)r their own limitation or are altered or repealed by law.”

There are certain other provisions- of the statute regulating the carrying of weapons and granting permission to the public officers to carry arms, and for other persons to carry shotguns and rifles for hunting or for having them repaired, or for the purpose of using the same in public muster or military drills, etc; also a provision against any one except a peace officer carrying into any church or religious assembly, or to an election or place where intoxicating liquors are sold, and certain other assemblies, any weapon designated in the first and second section above set out. These, particular sections are not of moment here, and hence will not be set out at length.

We agree with counsel that the statutes in "question cover practically the same subject, with the exception that the’first one provides that the instruments mentioned therein shall not be carried concealed, while the second provides that the weapons mentioned. therein shall not be carried at all, and the things which are mentioned cover practically the same articles. A loaded cane and a billy are mentioned in the second, and are not mentioned in the first; and a dagger, slung-shot, and sword are mentioned in the first, and nof in the latter. With this exception and with the difference first noted, the statutes are practically identical, and why the Legislature incorporated them both in the act we are not able to say, but there is no room for holding that one of these repeals the other. They may both stand, and a party may be prosecuted under either. The second paragraph contains no repeal of the first. They are both contained in the same chapter, and in the same article, were passed on the same day, and the rule in such cases is stated in Lewis’ Sutherland on Statutory Construction, § 268, to be as follows:

“The presumption is stronger against implied repeals where provisions supposed to-conflict are in the same act or were passed at nearly the same time. In the first case it would manifestly be an inadvertence, for it is not supposable that the Legislature would deliberately pass an act with conflicting intentions. In the other case the presumption rests on the improbability of a change of intention or, if such change had occurred, that the Legislature would express it in a different act without an express repeal of the first. ‘Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.’ The' presumption is that different acts passed at the same session of the Legislature are imbued by the same spirit and actuated by the same'policy, and that one was not intended to repeal or destroy another, unless so expressed.”

To the same effect is the holding in the case of State v. Rackley from the Supreme Court of the state of Indiana. 2 Blackf. 249:

“Statutes enacted at the same session of the Legislature are to be taken in pari materia, and should receive a construction which will give effect to each, if possible. But if each of them cannot have the entire effect when taken in connection with the others that it would have if taken singly, they must be so constructed as to give effect to what appears to have been the main intention of the Legislature.’

In the case at bar these statutes must have been passed as is said by Mr. Sutherland “through inadvertence”; but construing them so as to give effect to what appears to have been the. main intention of the Legislature in our judgment.will give effect to both, and a prosecutor may proceed under either as the facts require. They are for the greater part cumulative, but not conflicting.

Now .the question arises: Were these sections of the territorial statutes extended to, and did they remain in force in the state of Oklahoma, or are they repugnant to that section of thé Constitution above cited, relating to the right of citizens to bear arms. The question now presenting itself is whether or not the pistol, for the carrying of which defendant is restrained of his liberty, is among the arms which he could be prohibited from carrying or bearing. Practically all of the states under constitutional provisions similar to ours have held that acts of the Legislature against the carrying of weapons concealed did not conflict with such constitutional provision denying infringement of the right to bear arms, but were a valid exercise of the police power of the state. A few of the states which have so held are indicated as follows: Nunn v. State, 1 Ga. 243; State v. Mitchell, 3 Blackf. (Ind.) 229; State v. Reid, 1 Ala. 612, 35 Am. Dec. 41, State v. Jumel, 13 La. Ann. 399; State v. Wilburn, 7 Baxt. (Tenn.) 57, 32 Am. Rep. 551; Cockrum v. State, 24 Tex. 394; State v. Buzzard, 4 Ark. 18. The foregoing authorities could be multiplied, but they are deemed to be sufficient.

The question now arrises: Is a pistol the character of arms in contemplation of the constitutional convention and of the people of the state when they declared that the right of a citizen “to carry and bear arms,” etc., “shall never be prohibited.” We hold that it is not, and most of the states where it has been passed upon support us in this conclusion. Bishop on Statutory Crimes, § 793; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Fife v. State, 31 Ark. 455, 25 Am. Rep. 556; English v. State, 35 Tex. 473, 14 Am. Rep. 374; Aymette v. State, 2 Humph(Tenn.) 154 ;Hill v. State, 53 Ga. 472; City of Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196; 7 Am. and Eng. Ann. Cases, 925. Many of the state Constitutions on this subject contain a reiteration of article 2 of the amendments to the Constitution of the United States that “a well regulated militia being necessary to the security of the free state, the right of the people to keep and bear arms shall not be prohibited.” Some of the courts have held that this section applied to the states,' as well as the general government, but the ultimate conclusion to which practically all of the courts of the Union have finally arrived, including the United States Supreme Court, is that this amendment is a limitation on the federal government only. Presser v. State of Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Fife v. State, 31 Ark. 455, 25 Am. Rep. 556; Andrews v. State, 3 Heisk. (Tenn.) 166, 8 Am. Rep. 8. We have found no constitution containing a provision exactly the same as the one in ours, but the reasons which brought about its adoption and the second amendment to the federal Constitution, and the reasons underlying the motives which have caused it to be written into the different state constitutions, are idenucaily'the same. Some of the state courts in cases of this character have examined the history of this provision at length and while we do not deem it necessary to go iiUo this, those who are interested in the subject will find an excellent review of the entire matter in the case of Aymette v. State, supra, wherein Justice Green, who delivered the opinion of the court has in a well written opinion, reviewed the same from its earliest appearance in England, and has marked its growth until it appears in the Constitution of th'1 United States and finally in the Constitution of the stave of Tennessee. While the language of the Constitution of the different states may vary in terms, yet they have sprung from the same source, and the purposes, aims, and objects to be accomplished by those provisions are identical, the same rule of construction will be applicable. The Constitution of 'the state of Tennessee in force at the time of the opinion last mentioned was “that the free white men of this state have a right'to carry and bear arms for their common defense.” The 'tamte under which the defendant in that case was prosecuted read “that if any person shall wear any bowie knife, or Arkansas toothpick, or other knife or weapon, that shall in form, shape or size, resemble a bowie knife or Arkansas toothpick; under his clothes, or keep the same concealed about his person, such person shall be guilty of a misdemeanor.” The defendant contended that the statute was unconstitutional and that every man had a right to arm himself in the manner which he chose. The defendant, it appears, had a bowie knife, of which the court in dealing with the question of whether or not such an instrument came within the meaning of the constitutional provision said:

“The words ‘bear arms,’ too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep them which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber or assassin. These weapons would be useless in war. They could not be employed advantageously in the common defense of the citizens. The right to keep and bear them is not, therefore, secured by the Constitution.”

In a later case (Andrews v. State, supra,) the Supreme Court of Tennessee, again dealing with the same subject and speaking through Justice Freeman, said:

“In order to arrive at what is meant by this clause of the state Constitution, we must look at the nature of the thing itself, the right to keep which is guaranteed. It is ‘arms’ (that is, such weapons as are properly designated as such, as the term is understood in the popular language of the country), and such as are adapted to the ends indicated above (that is, the efficiency of the citizen as a soldier, when called on to make good ‘the defense of a free people’), and these arms he may use as a citizen, in all the usual modes to which they are adapted, and common to the country. What, then, is he protected in the right to keep and thus use? Not everything that may be useful for offense or defense; but what may, properly be included or understood under the title of ‘arms,’ taken in connection with the fact that the citizen is to keep them as a citizen. Such, then, as are found to make up the usual arms of the citizen of the country, and the use of which will properly train and render him efficient in defense of his own liberties, as well as of the state. Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we would hold that the rifle of all descriptions, the shotgun, the musket, and repeater are such arms; and that under the Constitution the riijht to keep such arms cannot be infringed or forbidden by the Legislature, their use, however, to be subordinated to such regulations and limitations as are or may be authorized by the law of the land, passed to subserve the general good, so as not to infringe the right secured and the necessary incidents to the exercise of such right.”

The court in this case considered three cases together, in one of which there was involved, as in the case at bar, the carrying of a pistol. The case of Hill v. State, supra, was one wherein the defendant was indicted for carrying a pistol. The provision of the Constitution of Georgia reads:

“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed; but the General Assembly shall have power to prescribe the manner in which arms may me borne.”

In considering the question as to whether or not the statute which provided that “no person in said state shall be permitted or allowed to carry about his or her person any dirk, bowie knife, pistol, or revolver, or any kind of deadly weapon, to any court of justice or any election ground or precinct,” etc., was in violation of the terms .of the Constitution, the Supreme Court said:

“The language of the Constitution of this state, as well as that of the United States, guarantees only the right to keep and bear the arms necessary for a militiaman. It is to secure the existence of a well-regulated militia. That, by the express words of the clause, was the object of it, and I have always been at a loss to follow the line of thought that extends the guarantee to the right to carry pistols, dirks, bowie knives, and those other weapons of like character, which, as all admit, are the greatest nuisance of our day. It is in my judgment a perversion of the meaning of the word ‘arms/ as used in the phrase ‘the right to keep and bear arms/ to treat it as including weapons of this character. The preamble to the clause is the key to the meaning of it. The word ‘arms/ evidently means the arms of a militiaman, the weapons ordinarily used in battle, to wit, guns of every kind, swords, bayonets, horseman’s pistols, etc. The very words ‘bear arms’ had then, and now have, a technical meaning. The ‘arms bearing’ part of the people were its men fit for service on the field of battle. That country was ‘armed’ that had an army ready to fight. The cáll ‘to arms’ was a call to put on the habiliments of battle; and I greatly doubt, if in any good author of those days a use of the word ‘arms’ when applied to a people can be found which includes pocket pistols, dirks, sword-canes, toothpicks, bowie knives, and a host of other relics of past barbarism, or inventions of modern savagery of like character. In what manner the right to keep and bear these pests of society can encourage or secure the existence of a militia, and especially of a well-regulated militia I am not able to divine.”

The same weapon was involved in the case of English v. State, supra. The arms-bearing section of the Constitution of the state of Texas reads: “Every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the Legislature may prescribe.” On this the Supreme court of that state, speaking through Justice Walker, said: “We understand the word ‘arms,’ when used in this connection, as having the same import and meaning which it has when used in the amendment of the federal Constitution.” It will thus be seen that the court held contrary to the general rule that the second article to the amendment of the Constitution of the United States is of a nature to bind both the state and national Legislatures, but its construction of the word “arms” is none the less valuable.

“To refer to the deadly devices and instruments called in the statute ‘deadly weapons’ to the proper or necessary arms of a well-regulated militia is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the Constitution of the United States as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, which it was doubtless the intention of the Legislature to punish and prohibit. The word ‘arms’ in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols, and carbine; of the artilleiy, the field piece, siege gun, and mortar, with side arms. The terms ‘dirks,’ ‘daggers,’ ‘slung-shots,’ ‘sword canes,’ ‘brass knuckles,’ and ‘bowie knives’ belong to no military vocabulary. Were a soldier on duty found with any of these things about his person, he would be punished for an offense against discipline.”

The- Constitution of the state of Arkansas on this subj ect is: “The citizens of this state shall have the right' to keep and bear arms for their common defense.” The Legislature passed a prohibitory act providing “that any person who shall wear or carry any pistol of any kind whatever, or any dirk, butcher knife or bowie knife, or sword or spear in a cane, brass or metal knuckles, or razor, as a weapon, shall be adjudged guilty of a misdemeanor,” etc. The construction of this provision of the laws of that state arose in the case of Fife v. State, supra, and the Supreme Court held:

“The provisions of article 2 § 35, of the Constitution of this state, securing to the) citizens the right to keep and bear arms for their common defense, relate to such arms as are used for purposes of war; and does not prevent the Legislature from prohibiting the wearing of such weapons as are not used in civilized warfare, and would not contribute to the common defense. The act of February 16, 1875, which prohibits the- carrying of any pistol whatever as a weapon, refers to such pistols as are usually carried in the pocket, and of a size to be concealed about the person, and used in private quarrels; and not to such as are within the provisions of the Constitution.”

That was a case, as is the one at bar, wherein the carrying of a pistol was involved; the defendant taking the position that the act of the Legislature which prohibited absolutely the carrying of the articles mentioned therein was in violation of the Constitution, and void. The remarks of the court are peculiarly applicable to our own statute:

“From the company in which the pistol is placed, and the known public mischief which the Legislature intended by the act to prevent, it is manifest that the pistol intended to be prescribed is such as is usually carried in the pocket or of a size to be- concealed about the person and used in private quarrels and brawls, and not such as is in ordinary use and effective as a weapon of war, and useful and necessary for ‘the common defense.’ The indications in the evidence are that the plaintiff in error was carrying a pistol of that class or character intended to be prohibited by the Legislature, and which we think may be prohibited in the exercise of the police power of the state without any infringement of the constitutional right of the citizens of the state to keep and bear arms for their common defense.”

The case of City of Salina v. Blaksley, supra, was another one wherein the question of the right of the defendant to carry a pistol was before the Supreme Court of the state of Kansas for determination. Section 4 of the Bill of Rights of that state is as follows: “The people have the right to bear arms for their defense and security; .but standing armies, in time of peace are dangerous to liberty and shall not be tolerated, and the military shall be in strict subordination to the civil power.” The statute of the state of Kansas provided that a city council may prohibit and punish the carrying of fire arms or other deadly weapons, concealed or otherwise.' The defendant was arrested for carrying a pistol, and his contention was that this section of the Bill of Rights was a constitutional inhibition upon the power of the Legislature to prohibit an individual from bearing arms and that the section of the statute mentioned was in conflict with this constitutional provision, and therefore void. The court held:

“The provision of the Kansas Constitution (Bill of Rights, § 4) that ‘the people have the right to bear arms for their defense and security’ is a limitation on legislative power to enact laws, prohibiting the bearing of arms in the militia or any other military organization provided for by law, but is not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons.”

Mr. Bishop in his work on Statutory Crimes, § 793, has this to say on this subject:

“The guaranty to the people of the right ‘to keep and bear arms’ is largely found in our state Constitutions; in some of them in these words alone, and in others more or less qualified. In reason the keeping' and bearing of arms has reference only to war, and possibly also to insurrections wherein the forms of war are as far as practicable observed; yet certainly not to broils, bravado, and tumult, disturbing the public repose, or to private assassination and secret revenge. Nor are these, in the language of the constitutional provision now under consideration, ‘necessary to the security of a free state.’ Nor yet are dirks, bludgeons, revolvers, and other weapons which are not used in war ‘arms.’ ”

While not contained in the same paragraph with the provision securing the right to bear arms, as in many of the other Constitutions, section 40 of article 5 — section 113 of Bunn’s Constitution of Oklahoma — provides: “The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the militia of the state.” Herein is shown clearly that the Constitution contemplates the maintenance of an armed militia, and, taking this in connection with the other provision and the views expressed by the courts from whose decisions we have quoted,and the history of and ends to be attained by the arms-bearing provision, we believe there is no room for doubt that the arms defendant had a right to bear, and which right could never be prohibited him, relates solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin, and we are further convinced that the act of the Legislature under which the defendant in this case was arrested, tried, and convicted was not repealed or in conflict with the terms of the Constitution, but was among the valid enactments in force in the territory of Oklahoma at the time of its admission; was neither repugnant to the Constitution nor locally inapplicable; was extended in force in the state of Oklahoma. Hence the application of petitioner herein should be denied.

Hayes, Kane, and Turner, JJ., concur; Williams, C. concurs in conclusion.


source: Caselaw Access Project

author: Turner, J.

license: Public Domain

text:
      In re Unger.
    No. 219.
    Opinion Filed December 2, 1908.
    (98 Pac. 999.)
    1. MUNICIPAL CORPORATIONS — Taxation—Grant of Taxing. Power— Strict Construction. A grant by the Legislature of taxing power to a municipal corporation is to be strictl3r construed, and any fairly reasonable doubt concerning the existence of such power is resolved by the courts against the corporation and the power is denied. All acts beyond the scope of Ahe power granted are void.
    2. SAME — License Tax on ‘'Contractors.” The power being granted by the Legislature to a city of the first class to levy by ordinance an occupation tax on “contractors,” held, that the term is not sufficiently generic to cover “persons doing contract work,” and that that part of an ordinance seeking to levy such tax on “persons doing contract work” is illegal and void.
    3. HABEAS CORPUS — Grounds for Discharge — Void Ordinance. Habeas corpus will lie to discharge a petitioner restrained of his liberty by virtue of a conviction based upon a void ordinance.
    (Syllabus by the Court.)
    Application of U. W. Unger for a writ of habeas corpus.'

    Writ granted, and petitioner discharged.

      F. C. Hunt, for petitioner.

      V. S. Decker, for respondent.
   Turner, J.

On May 28, 1908, petitioner filed in this court an original application for a writ of habeas corpus, alleging himself to be illegally restrained of his liberty by C. D. Spencer, city marshall of the city of Chandler, for the nonpayment of a certain fine and costs assessed against him in the police court, of said city for the alleged violation of an ordinance thereof which said ordinance he claim's is void. The return to the writ shows petitioner to be in the custody of said Spencer, as city marshal of said city, by virtue of an alias commitment from said court directing respondent to confine petitioner in the city jail and keep him so confined until said fine and costs are paid. At that time the city of Chandler was a city of the first class, and the only authority relied on to justify the passage of the ordinance complained of is that part of Wilson’s Rev. & Ann St. 1903, Okla., which refers to cities of that class, and provides: “Sec. 386. The city council shall have the authority to levy and collect a license tax on auctioneers, contractors. * * *” Pursuant to this authority, the city council of said city on December 17, 1907, passed an ordinance, the material part of which is as follows:

“Sec. 1. That for the-purpose of raising a revenue for said city there is hereby levied an occupation tax on each and every occupation and business hereinafter named, that are now and may hereinafter be maintained within the corporate limits of the city of Chandler, Lincoln county, Oklahoma.- * * * House and sign painting business six ($6.00) dollars per year. * * * Contractors or persons doing contract work twenty ($20.00) dollars per year. * * *” .
“Sec. 4. It shall be unlawful for any person, persons, or" company or corporation to engage in any of the businesses provided herein without first paying the tax herein specified and provided for and obtaining a license therefor.
“Sec. 5. Any person, persons, company or corporation violating any of the provisions of this ordinance shall upon conviction thereof be fined in a sum of not less than, five dollars, nor more than one hundred dollars, and shall stand committed until such fine and costs are paid and each and every day wherein such violation shall continue shall constitute a new and independent offense.”

On January 16, 1908, petitioner was arrested on a complaint charging that on January 1, 1908, in the city of Chandler, he, “then and there being, did then and there willfully, unlawfully, and wrongfully do certain contract work, to wit, house and' sign painting, doing such work at a contract price and not by the day labor, nor so much per diem, and this without first paying for and taking out an occupation tax license,” as provided for in the ordinance aforesaid contrary to section 1 thereof, etc. He was tried, convicted, fined, and committed “until said fine and costs are-paid.” He insists that the ordinance is void. If so, he must be discharged; otherwise not.

In our opinion that part of the ordinance forming the basis of this prosecution is clearly void, for the reason that it goes beyond the taxing power- delegated by the legislature in the section of the statute above set forth. The authority there delegated gave the city the power to tax “contractors.” Municipal corporations can exercise only such powers of legislation as are given them by the lawmaking power of the state. Grants of such powers are strictly construed, and “any -fairly reasonable doubt is resolved by the courts against the corporation, and the power is denied. * * * All acts beyond the scope of the powers granted are void.” 1 Dill, on Munic. Corp. (4th Ed.) § 89. “By the weight of authority, statutes and ordinances imposing licenses and business taxes are to be construed strictly in favor of the citizen and against the government, especially where they provide penalties for their violations” (21 Am. & Eng. Enc. of Law (2d Ed.) § 809), as in this case, and are not to be extended to persons or things not expressly within the grant of power (Kiel v. City of Chicago, 176 Ill. 137, 52 N. E. 29). It is also a fundamental cannon of construction that in this connection the lawmaking power must have used the words employed in their known and accepted signification. Emmons v. City of Lewistown, 132 Ill. 380, 24 N. E. 58, 8 L. R. A. 328, 22 Am. St. Rep. 540.

Tested by these rules, did the grant of power to pass an ordinance levying an occupation tax on “contractors” grant the power to-the city to so tax “persons doing contract work”? In other words, is the term “contractors” in the sense in which it was used in the section of the statute, supra, sufficiently generic to embrace within its meaning “persons doing contract work”? If so, the ordinance is valid; if not, it is void, and the petitioner must be' discharged. In Brown v. German American Title & Trust Company, 174 Pa. 443, 34 Atl. 335, the court adopted the definition of a “contractor,” as laid down in the Century Dictionary, to be “one who contracts or covenants either with * *• * a public body or private parties * * * to * * * construct works or erect buildings * * * at a certain price or rate.” That this is the sense in which the term is commonly understood is apparent, and by it we are peisuaded that the Legislature only intended to' grant the power to tax the occupations of such building contractors, bridge con tractors, railroad contractors, paving contractors, etc., or those engaged in what is commonly known as construction work on a large scale. In this we are borne out by Webster’s International Dictionary which defines “contractor” to be “specifically one who contracts to perform work on rather a large-scale, at a certain price or rate, as in building houses or making a railroad.”

Having thus determined what occupations are fairly taxable under the term “contractors,” let us see what fall within the meaning of “persons doing contract work” as distinguished from the former, for to these the city has attempted to extend by this ordinance its power of taxation. It is clear that “persons doing contract work” not only includes contractors themselves, but might fairly be construed to cover in the broadcast acceptation every person engaged in any kind of work pursuant to a contract express or implied.’ Under its guise, the city might tax all workers for hire whether by job, day, month, or any other time, and might fairly include the trades and professions, the bootblack, the messenger boy, and the maid in the kitchen. The difference in the range of taxation covered by the two terms, and that the first is not sufficiently generic to cover the second, is apparent at a glance. Now let us turn to the complaint, and see what is attempted to be done in this instance. Petitioner therein is charged, not with carrying on the business or being engaged in the occupation of “house and sign painting” (taxed in the same ordinance at $6 per year) without paying the license tax. but with on a certain day “doing certain contract work, to wit, house and sign painting, doing such work at a contract price, and not by the day labor or so much per diem,” contrary to the terms of the ordinance. In other words, the complaint charges him with doing an odd job or isolated act of house and sign painting. That such a person is not a “contractor” within the meaning of the ordinance is apparant from what has been said, and also by the distinction drawn by the Supreme Court of Louisiana in State v. McNally, 45 La. Ann. 44, 12 South. 117. In that case defendant appealed from a judgment against him in the civil district court of the parish of Orleans compelling him to pay a license tax as “contractor or builder.” 1'n distinguishing between contractors and others, the court, in passing, said:

' “To illustrate, we will add that when a mechanic is employed tó do a particular piece of work, for instance to do the carpenter work on a house, or to plaster or to paint the same, and he works at his trade on said house and employes others to assist in the work, he is exempt, because he follows and works at his trade exclusively. But, when he undertakes to build houses generally, and only superintends the work and performs only such mechanical labor as his pleasure may dictate, or to show or direct those employed by him, he does not follow his trade exclusively on the building and employing others to assist him, but he is a contractor, employing others to do the work exclusive of his individual labor.”

As such a person, then, as is described in the complaint’, is clearly not a “contractor,” and as the city was without legislative power to extend by ordinance its power of taxation so as to include this isolated act of house and sign painting under a provision therein taxing the occupation of “persons doing contract work,” we conclude that that part of the ordinance attempting to tax “persons doing contract work” is illegal and void, and petitioner’s conviction, fine, and present restraint are also illegal and void. It would seem that in ordaining a tax on “contractors” or “persons doing contract work” the lawmaking power of the city was attempting to define what occupations were intended to be included under the term “contractors.” If such is true, the attempt was futile, as it goes without saying that the city could not extend its powers of taxation by an unauthorized definition of a word contained in the grant of power (Kansas City v. Lorber, 64 Mo. App. 605; Twining v. City of Elgin, 38 Ill. App. 356; Town of Trenton v. Clayton, 50 Mo. App. 535), and that by defining the word “contractors” as “persons doing contract work” did not make it so, and this court will not be bound by such definition.

While the fight of petitioner to invoke the aid of the writ of habeas corpus is not before us, if it were, we are inclined to think we would favor the right. We'are not unmindful that irregularities in proceedings of this kind before the lower courts are not properly inquired into by habeas corpus but on appeal; but where, -as in this case, the conviction and consequent restraint are the result of a prosecution based upon a void ordinance, the error is not merely an irregularity, but fundamental, and may be reached by this writ. In re Gribben, 5 Okla. 379, 47 Pac. 1074; 15 Am. & Eng. Enc. of Law (2d Ed.) 169, and cases cited; McQuillin, Munic. Ord. p. 574, and cases cited; Hans Neilsen, Petitioner, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118.

We are therefore of the opinion that that part of the ordinance seeking to impose an occupation tax on “persons doing contract work” is void; thát the judgment of the lower court is also void; that the petitioner is illegally restrained of his liberty, and should be- discharged; and it is so ordered.

All the Justices concur.


author: Dunn, J.

text:
      Ex parte Clendenning.
    No. 268.
    Opinion Filed September 11, 1908.
    (97 Pac. 650.)
    COMMITMENT — Sentence and Commitment — Jurisdiction after Discharge. When -a judgment of imprisonment' is imposed by a court on plea of guilty or conviction in a criminal case, and the same is not stayed as provided by law, the defendant should forthwith be committed to the -proper officer for incarceration; and where this is not done, and the court maltes an order under which the defendant is discharged from custody, it has no power or jurisdiction, after the lapse -of the time involved in the sentence and after the term, to issue commitment or such judgment.
    Williams, C. J., dissenting.
    Application by William Clendenning for writ of habeas corpus.

    Petitioner discharged.

      Wade S. Stanfield and Barmim & McGraw, for petitioner.

      Chas. West, Atty. Gen., and W. C. Reeves, Asst. Atty Gen., for the State.
   Dunn, J.

This case is an original proceeding in habeas corpus, brought by William Clendenning, who alleges that he is unlawfully restrained and deprived of his liberty by Henry Clay King, as sheriff of Creek county, state of Oklahoma. From the record in the case we gather that on December 16, 1907, the defendant was brought into the county court of that county, and in case No. 16 the following judgment was entered against him:

“Defendant appeared in person, but without attorney, and entered a plea of guilty of selling intoxicating liquors, whereupon the court ordered that he be fined $50 and pay costs, amounting to $4.15, a total of $54.15, and to be committed to jail until said fine and costs are paid; and it was further ordered by the court that defendant be confined in the county jail for a period of 30 days, said sentence to be. suspended on good behavior.”

Thereafter, and on January 21, 1908, the defendant was again arraigned before the court of said county in case No. 68 charged with the same offense, when the court entered against him the following judgment:

“Defendant waived arraignment and entered a plea of guilty whereupon the court ordered that he pay a fine of $75 and costs, and that he be given 30 days in jail; jail sentence suspended during good behavior. Fine and costs were paid, and defendant was conditionally discharged as shown above.”

In neither of these cases was commitment issued.

Thereafter, and on June 27, 1908, after the expiration of the terms of court at which both of the foregoing judgments were rendered, and after the expiration of about five months from the date on which the last judgment was rendered, and six months subsequent to the day of the first, the 'court pronounced the following judgment in case No. 68:

“Now, on this 27th day of June, A. D. 1908, the same being one of the judicial days of the regular May, A. D. 1908, term of this court, the above matter came on to be heard, and it appearing to the court that on the 21st day of January, A. D. 1908, said defendant was, by judgment of this court then and there rendered adjudged, ordered, and decreed to be imprisoned in the county jail of Creek county, Oklahoma, and it further appearing to the court that said jail sentence was on good behavior of said defendant, and it now appearing to the court, from the records of this court, that the behavior of said defendant has not been good since said 21st day of January, 1908, the suspension of said jail sentence is héreby set aside and annulled, and the said judgment of this court is hereby this day ordered enforced, and the said defendant is committed to the custody of the sheriff of Creek county, Oklahoma, for imprisonment in said jail for 30 days from and after the date hereof, in conformity with said judgment of this court rendered as aforesaid on said 21st -day of January, A. D. 1908. To all of which action of the court the defendant excepts. Whereupon said defendant prayed an appeal to the Supreme Court of Oklahoma, which by this court denied, and the defendant then and there duly excepted. Whereupon said defendant asked the court to fix the amount of appeal bond, which was by the court denied, to which the defendant excepted.”

And immediately thereafter, and on the same day,- the court .rendered the following judgment in case No.17:

“Now, on this 27th day.,o.f June, A. D. 1908, the same being one of the judicial days of the regular May, A. D. 1908, term of this court, the above matter came on to be heard, and the same action was taken herein as in No. 68 Criminal, except that the sentence herein was by the court allowed to be concurrent with the sentence in said No. 68 Criminal.”

Upon this action by the court and the commitment issued thereunder, the defendant was taken into custody, and this writ was by him sued out to regain his liberty. He contends that after the expiration of the term at which the judgments were rendered, and after the expiration of the time within which they would or could have been served, in the absence of escape on his part, or any appeal or other lawful procedure taken to stay the same, the court lost jurisdiction to issue commitment thereon and to require their enforcement by his imprisonment. This raises the question of whether or not a court, after delivering its judgment and sentence in a criminal case, may stay the same in the absence of appeal or other legal proceedings taken looking to its modification, and after the term at which it was rendered has expired, and after the time embraced therein has elapsed, whether it has jurisdiction to then issue commitment in execution of its judgment and incarcerate the defendant thereunder. In support of the action taken b)r the court we are cited by the Attorney General to a number of authoiities. Those which most nearly touch the proposition, and upon which he most strongly relies, are as follows: Allen v. State, 1 Mart. & Y. (Tenn.) 294; Fults v. State, 2 Sneed (Tenn.) 232; Sylvester v. State, 65 N. H. 193, 20 Atl. 954 ;State v. Hatley, et al., 110 N. C. 522, 14 S. E. 751; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856; Weber v. State, 58 Ohio St. 616, 51 N. E. 116, 41 L. R. A. 472.

The case of Allen v. State, supra, was one decided by the Supreme Court of Tennessee. Allen was convicted of the crime of manslaughter at the circuit court of Green county in September '1826. He was sentenced to be imprisoned six months, and to be branded by burning on the hand, and to pay the costs of the prosecution. He asked for a stay of this judgment to enable him to make application to the Governor for a pardon, and the court in' granting it was doubtless greatly influenced by the fact that the burning on the hand, if inflicted, would much impair the privilege granted by a pardon, should one be secured. The judgment was stayed under a statute to enable defendant to make such application. This case is referred to in the case of Crane v. State, 94 Tenn. 98, 28 S. W. 317, in which the statute under which the court acted in that case is cited. Defendant Crane made application for a stay of the execution of his sentence until he could likewise apply to the Governor for a pardon, and the Supreme Court of the state in reference to this matter said:

•“The power of this court to grant such a suspension in a proper case is clearly given by section 6096, Mill. & V Code, as follows: ‘In case of the conviction and sentence of a defendant to imprisonment, the presiding judge may, in all proper cases, postpone the execution of the sentence for such time as may be "necessary to make application to the executive for a pardon or commutation of punishment.’ This power and discretion was exercised by this court in the case of Allen v. State, Mart. & Y. (Tenn.)295. "It is apparent, however, from a reading" of the statute, that such power and discretion to suspend execution of sentence will only be exercised in proper cases, and will not be extended to cases generally; otherwise, the course of justice would be impeded, and the Governor deluged with applications in all cases before the convicted person could be imprisoned.

The case of Fults v. State, supra, was another case from Tennessee, which was decided upon authority of the case of Allen v State supra. In that case the defendant was sentenced to a fine of $10 and two days’ imprisonment. The fine and costs were secured, and there appears of record the following entry:

“On motion of defendant, David Fults, and-for reasons appearing to the satisfaction of the court by admission of the Attorney General and the evidence in the case, he is permitted to entei into recognizance to appear at the next term of this court and then undergo the imprisonment adjudged against him, and abide by and perform the sentence of the court.”

Fie appeared at the next term of court, and was ordered to be imprisoned pursuant to the judgment. From this he appealed, and the Supreme Court held that there was nothing irregular in the proceeding, and that the execution should go. The stay of the execution, it will be noted, was to a time certain, and there was noth-. ing contingent in it. Where there is no statute, such as in this state, some few of the courts have held that a court may fix a day certain in the future on which a sentence shall begin. This was done in this case, and the Supreme Court sustained it.

The case of Weber v. State, supra, in our judgment, is not applicable, for the reason that in that case the judgment, the suspension, and the setting of the same aside all took place at the same term of court. The Supreme Court said:

- “When the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.”

In the case at bar it will be noted that both terms of court at which these judgments were rendered had expired, that no motion for new trial or other proceeding had taken place to review or reverse the same, and the judgments were final so far as the control of the court over them was concerned.

Neither do we consider the case of State v. Hatley et al., supra, as controlling in this case. That was a case in which Philip Flatley and his wife were sentenced to be imprisoned for 12 months in the county jail, with the proviso that if the defendants left the state within 30 days no execution should issue; otherwise the defendants were to be imprisoned. The parties left the state, and in about one month returned to the jurisdiction of the court. Thereupon the clerk of the court issued execution upon the judgment that had been previously rendered. In the consideration of the case the Supreme Court of North Carolina said:

“The court had no power to pass a sentence of banishment, and we think the judgment of the court cannot be fairly construed as a judgment of banishment. If so, it would be void. The only judgment passed by the court was that the defendants be imprisoned 12 months, and the words, ‘but if the defendants leave,’ etc., constitute no part of the sentence or judgment of the court, but were mainfestly intended only as a note or memorandum directing the clerk to postpone the period at which the sentence shall go into execution, and not as a banishment for the defendants, or an infliction upon some other community, predicated upon the assumption that it would be desirable and beneficial, "both to the community in which they were 'fengaged in the bad calling of keeping a disorderly and disreputable house and to the defendants, in giving them an opportunity to reform under new surroundings. Such course is not unfrequent, and, though dictated by the best intentions to benefit the public, as well as offenders, it is not to be commended. We think it quite clear, when the defendants left the state and speedily returned (for it appears that the court was held in the latter part of October and they returned early in December), they came within the condition upon which the clerk was to issue the capias.”

The facts contained in the foregoing quotation distinguish that case from the one at bar, in that the court did- not stay its judgment or the execution, and that the commitment was issued by the clerk; and this within the period of time during which the defendants, had they been immediately committed, would have been serving their sentence. These facts, we believe, take that case out of the rule controlling the one at bar.

Another case relied upon by the Attorney General, People ex rel, Forsyth v. Court of Sessions, supra, was one wherein the Supreme Court of the state of New York by mandamus commanded the Court of Sessions to pronounce judgment in a criminal case wherein one Attridge had been convicted of the crime of grand larceny, in which the trial court, out of respect to his youth and previous good character, "had suspended sentence. Three days thereafter the county judge, one of the three judges sitting at the trial, in the absence of the other two, brought the defendant before him and sentenced him to imprisonment. He was released upon habeas corpus on the ground that the sentence was not concurred in by a majority of the court. He was remanded tp the custody of the sheriff, arid again brought before "the court, and the judgment thereupon was given that sentence be suspended during good behavior. He was thereupon discharged from custody. Thereafter the Supreme Court granted a peremptory writ of mandamus commanding the said trial court to proceed to judgment and to pass sentence upon the defendant as prescribed by law. On the case being appealed to the Court of Appeals, the court of last resort of the state, it said: “The precise question involved, therefore, is the power of a court of record, possessing jurisdiction in criminal cases, to, suspend judgment after conviction.” And the court held that the trial court possessed this power in the following language:

“Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of -acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numerous adjudged cases.”

The statement of that case will show that it is not applicable to the case at bar, for the reason that the question involved here is not the power to suspend sentence, but the power of the court after sentence to suspend execution.

This case is noted, and the above distinction drawn, in the consideration of the case of In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846, which was a casé where execution of -the judgment of the court, as in the case at bar, was suspended. The Forsyth Case, supra, being cited on the part of the state to sustain the power of the court to suspend execution, just as it is cited by the Attorney General in the case at bar, the Supreme Court of Wisconsin said:

The case of People ex rel, Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856, was not a case where execution of a sentence had been suspended, but where sentence had been postponed; and the power of the court to delay sentence in its discretion was sustained, and numerous authorities were cited to support it. But the present case involves different considerations. Here the execution of a sentence already pronounced is indefinately suspended, and it may be the pleasure of' the court never to direct execution, so that the suspension has the practical' effect of a pardon, or of arrest of judgment, indeterminate or final, without the authority of law; and it has been like.ned-to the incorporation into our criminal jurisprudence of the 'ticket of leave’ system, without any of its safeguards, leaving the convicted criminal subject to the mere option or caprice of the judge, who may direct the enforcement of the sentence after any lapse of time, however great, or withhold it, to the great detriment, it may be, of the interests of the public — a power plainly liable to great abuse.”

The case of Sylvester v. State, supra, is one wherein the Supreme Court of New Hampshire, in a case on all fours with the one at bar, decided that it was within the power of the court to stay its execution. But one case is relied upon and cited by it to support its opinion, and that is the case of Commonwealth v. Dowdican’s Bail, 115 Mass. 133. An inspection of that case shows that it was not one wherein the court suspended execution :• but it, like the case of Forsyth v. Court of Sessions, supra, was one wherein the court suspended sentence. The New Hampshire Supreme Court does not discuss the proposition involved, and cites no other authority to support its opinion. Hence it is practically of little or no weight as an authority.

To supplement the cases presented to us above, we have sought diligently to find other .authority; but we have been unsuccessful. Outside of those which the Attorney General has presented to sustain this judgment, we have been unable to find a solitary well-considered opinion. Every case wherein the question is squarely presented and passed -upon, and the courts have given it the care and attention its importance deserves, holds, practically without dissent, that “in passing sentence on a person convicted of an offense the court has no power to provide that the imprisonment of the defendant shall begin at some future, indefinite time, depending on the happening of an uncertain contingency; and an arrest under such conviction, made after the expiration of the term of imprisonment named in the sentence, and after the term, is illegal.” In re Strickler, 51 Kan. 700, 33 Pac. 620; In re Bloom, 53 Mich. 597, 19 N. W. 200; State v. Murphy, 23 Nev. 390, 48 Pac. 628; Tuttle v. Lang, 100 Me. 123, 60 Atl. 893; Ex parte Gordon, 1 Black, 503, 17 L. Ed. 134; State v. Voss, 80, Iowa, 467, 45 N. W. 898, 8 L. R. A. 767; In re Markuson, 5 N. D. 180, 64 N. W. 939. We will review some of these cases.

The case of In re Strickler, supra, was one wherein the defendant pleaded guilty in the district court of Ford County, Kan., to the charge of assault and battery, whereupon the following sentence was pronounced upon him by the court:

“It is. the sentence of the law that you, W. H. Strickler, be by the sheriff of Ford county, Kan., incarcerated in the jail of said county to remain for the space of 90 days from the date of this sentence. It is further ordered by the court that the operation of this sentence shall be suspended during such time as the defendant shall keep the peace with all mankind, and desist from all unnecessary use of intoxicating liquor, and refrain from becoming intoxicated. It is further ordered, as a condition of this sentence, that whenever the said W. PI. Strickler shall violate any one of the above conditions, and upon notice thereof to the sheriff by the prosecuting officer of Ford county, Kan., or by the judge of this court, the said sheriff shall immediately incarcerate the said Strickler in the jail of said county, and he shall remain there committed until the expiration of 90 days from said date of incarceration, and until the costs of this prosecution have been paid by him. The question as to whether the conditions of this suspension have been broken shall be determined by the prosecuting attorney of Ford county, or by the judge of this court, and no judicial investigation shall be required.”

After the expiration of the term of court at which this sentence was pronounced, and after the lapse of 90 days, the court issued the following commitment on this sentence to the sheriff of the county:

“An whereas, said defendant, W. H. Striekler has failed to comply with the conditions of said judgment, you are therefore commanded to take and commit said defendant, W. H. Strickier, to the jail of Ford county, Kan., there to remain until said judgment be complied with.”

Upon the commitment issued the petitioner was arrested and placed in jail. He sued out in the Supreme Court a writ of habeas corpus, and that court, on the consideration of the case, speaking through Mr. Justice Allen, said:

“The question here presented is whether the district court collide lawfully sentence the defendant to imprisonment in the county jail, and then suspend its execution, to be enforced at some future time, on the happening of a contingency named in the judgment. Section 256 of the Criminal Code (Gen. St. 1001 § 5701) reads: ‘Where any convict' shall be sentenced to any punishment the clerk of the court'in which sentence was passed shall forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, either in person, or by a general or usual deputy, cause such convict to receive the punishment to which he was sentenced.’ While it is usual to delay .sentence after conviction until motions for new trials, in arrest of judgment, and the like, are disposed of, and while it is within the power of the court to continue the hearing of such motions, or for any other good and sufficient cause.to withhold sentence, yet when a sentence has been pronounced by the court, its operation begins at once, and under the section just quoted it is the duty of the sheriff to immediately proceed to carry the sentence into effect. We are not called on to consider the right of the court, at the term at which the conviction was held, to reconsider or modify, its own order. In this case it was attempted to hang a sentence of 90 days’ imprisonment over the head of the defendant, to be executed at such time as the prosecuting attorney of Ford county or the judge of the court might see fit. This would leave the defendant in a very uncertain situation. He would be unable to tell for an indefinite period whether he was a free man or a convict, ánd while the sentence in terms might be' but for 90 days’ imprisonment, it would be in effect far more severe, because of the uncertainty as to the time of its execution. Such a sentence is wholly unauthorized by law. The commitment issued thereon is illegal, and does not justify the imprisonment of the petitioner. He will be discharged.”

The facts in the case of Tuttle v. Lang, supra, are stated by the Supreme Court of Maine as follows:

“The petitioner was arrested and brought before the Skowhegan municipal court, charged with the offense of the unlawful 'sale of intoxicating liquors. Before pleading to the complaint the petitioner, the prosecuting complainant, and the judge came to an agreement by which the petitioner should plead guilty and be sentenced to a fine, costs, and imprisonment, but that no mittimus in execution of the sentence should issue until the petitioner should again be guilty of unlawfully selling intoxicating liquors. The petitioner thereupon pleaded guilty, sentence of fine, costs, and imprisonment was imposed, a memorandum of the agreement was noted on the judge’s docket, and the petitioner was released from arrest and allowed to go without day, without payment of fine and costs, and without imprisonment.- No mittimus or other precept in execution of the sentence was issued, or even prepared.”

After the expiration of nearly two years the judge, being of the opinion that the petitioner was again unlawfully selling intoxicating liquors, issued commitment on the previous sentence, delivering it to the sheriff, who took the prisoner into custody and committed him to jail. He sued out a writ of habeas corpus, and the Supreme Court of Maine on these facts held:

“If, after conviction and sentence, any court, whether of general or limited jurisdiction, permits the convict to go at large without day, it can never thereafter issue a mittimus for his commitment. In such case, having completed its judicial functions, it has voluntrily surrendered all further control over.the case and person.”

The case of In re Markuson, supra, was one where on June 29, 1905, the petitioner was convicted of a contempt of court in violating the terms of an injunction order. The syllabus in the case sufficiently, states the facts and the judgment to show the holding, and is as follows:

“On June 29, 1895, petitioner was convicted of a criminal contempt of court, and judgment was entered of record against him in substance as follows: ‘That petitioner be imprisoned in the county jail of Barnes, county for a period of 90 days, commencing with today at noon; that he pay a fine of $200, and if default be made in -the payment of the fine he shall be imprisoned as many days as $2 is contained in $200, or 100 days.’ Immediately after said judgment was entered the court, of its own motion, made certain orders in the case, which were entered of record, to the.effect: First,-that in the case an appeal was taken the time should commence to run from the date of the remittitur being filed in the district court; second, that the judgment be suspended 30 days, unconditionally, to facilitate an appeal to the Supreme court; third, the court ordered that the bail bond given to secure the petitioner’s attendance from day to day during the trial in the, district court be and remain valid and binding upon the petitioner, and that petitioner was ordered to obey the further orders of the district court, whether made by the court, or made to conform to orders of the Supreme Court. Held, that the time of said imprisonment began to run at nOon on 'June 29, 1895, and that the several orders purporting to suspend or postpone the operation of the judgment were without authority of law, and null and void.”

In the consideration-of the case the court recognizes the general rule, supported by practically all of the authorities, that where not controlled by statute, the date for the beginning of the service of the term of imprisonment is not fixed in the sentence, its time will commence to run, when not legally stayed, on the day of sentence. See 25 Am. & Eng. Ency. .of Law, 303, note 2. And this, in our judgment, is rendered certain in this state by the terms of our statute (section 5583, Wilson’s Rev. & Ann. St. Okla. 1903), Which provides that upon the judgment “the defendant must forthwith be committed to the custody of the proper 'officer, and by him detained until the judgment be complied with.” The court in the case last cited held that the sentence “began its operation when it was pronounced, and continued to be in full force from that day until it ceased to operate by its own terms.”

The reasoning of the Supreme Court of Nevada in the case of State v. Murphy, supra, is peculiarly applicable to the case at bar, in view of the fact that their statute is practically the same as our own. This was a case where Murphy had been convicted of selling whisky to an Indian, and a judgment of imprisonment for a term of two years was pronounced against him therefor. Thereupon'Murphy, expressing his intention of taking an appeal, moved the court for a stay of execution and to admit him to bail. The court granted a stay of éxecution of judgment for 10 days, and ordered that he b.e admitted to bail in the sum .of $3,000. Bond was given in accordance therewith, and Murphy was released from custody. He did not appeal, and on suit being brought on the bond it was contended on the part of the principal and his sureties that the bond was void, because the court had no authority ■ or jurisdiction to make an order staying execution of judgment. In the consideration of this case the court says:

“The contention is that the trial court had no authority to make an order staying the execution of a judgment of imprisonment, and no authority to release or order the release of a defendant, under recognizance or otherwise, after’judgment of imprisonment had been rendered against him, except after an appeal therefrom had been taken, and therefore any recognizance given for that purpose and at such time is void. This contention also involves a construction of our criminal practice act, and must be sustained. Section 451'of the criminal practice act (Gen. St. 1885, § 4331) provides that, ‘when a judgment has been pronounced, a certified copy of the entry thereof in the minutes shall be forthwith furnished the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require the execution thereof, except when judgment of death is rendered.’ ,Section 453 of the same act expressly provides that, if the judgment be imprisonment, the defendant shall forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with. Gen. St.. 1885, § 4333. We are unable to find any other provisions of the law bearing directly upon the time and the manner of enforcing the judgment of the district court in cases of this character, or in any manner modifying the same, excepting such provisions as direct the enforcement of such judgment by order of the appellate court on appeal. No discretion is reposed in the district court as to the time its judgment shall become operative and enforceable, and any order thereof in contravention of the direct provisions of the statute above cited is without authority and void, and the release of the defendant, with or without bond, pursuant to such order, is unwarranted, and any bond, recognizance, or bail given for such release for the purpose of such order is without authority and void. * * * In the case at bar the camplaint avers that the defendant was released from custody upon the execution and acceptance of the bail bond. The court had no right no authority, and no power to order a stay of execution or the judgment of imprisonment .for any length of time; nor had it any authority to release the defendant from custody, under bail, until he had- appealed.”

The practical identity of the statutes construed in the foregoing case with our own renders the foregoing decision particularly valuable.

One of the cases, recognized in many of the authorities cited as a leading one on the propositions here involved, is State v. Voss, supra, decided by the Iowa Supreme Court. A number of defendants involved in that case were enjoined from unlawfully selling intoxicating liquors. They violated terms of the injunction, and upon the hearing the court found them'guilty and adjudged punishment therefor by imprisonment and a fine of $500, and an order was made that they stand committed to the county jail unless the fine and costs were sooner paid. The judgment contained a further condition in this language: “The execution of this judgment is to be suspended during the pleasure of the court ; but whenever the court, or one of the judges thereof, so directs, execution and warrant of commitment are to issue.” The case was taken to the Supreme Court by certiorari,, and it was contended that the order of the court suspending judgment was void ; and the court, through Mr. Justice Beck, in the consideration of this matter said:

“The case is this: We find a judgment for a fine against defendant, which can only be enforced at the pleasure of the court. The judgment is thus suspended, and the state is defeated of the remedy provided by law, upon the exercise of the pleasure of the district court. If the power to do this exists in a case of contempt, it must exist in all cases punishable by fine and imprisonment. The law is no respecter of persons. One violator of law possesses no rights or immunities not held by another. It follows, then, that all fines and penalties prescribed by law may be collected only when it'accords with the1 pleasure of the court in which judgment is rendered therefor. The claim of the validity of the condition of the judgment leads to the most absurd results. It is hardly necessary to say that it is based upon no statute.”

The case of In re Webb, supra, from the Supreme Court of the state of Wisconsin, was one where the petitioner was convicted of the crime of adultery on the 16th of March, 1894, and was sentenced to pay a fine of $200 and to be committed to the common jail for six months. The defendant paid the costs of the prosecution, and the court directed “that the sentence of imprisonment be suspended until the further order of the court.” After the expiration of that term, and after six months had expired, the court ordered that the defendant be required to fully comply with the sentence in payment of the fine imposed and committing him until the same was paid, for a period not longer than six months, in accordance with his previous sentence. An original writ of habeas corpus was sued out in the Supreme Court of that state, and in the consideration of that case, Justice Pinney, in holding that the judgment of the court committing the relator to jail under the conditions mentioned was void, said:

“The sole power is vested in the Governor ‘to grant reprieves, commutations, and pardons after conviction, for all offenses except treason and cases ■ of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.’ Const, art. 5, § 6. And the action of the court in the premises, after it had regularly pronounced the punishment provided by law for the offense in question, is clearly obnoxious to the objection that it is an attempted exercise of power not judicial, but vested in the executive. When the sentence was pronounced the defendant was in custody; and it became eo instante his duty to pay his fine, and for failure to do so the term of his imprisonment at once began. It had fully expired before the order of October 12, 1894, was made, under which he has been committed and is now held in confinement. 'The sentence has been in part complied with, and the attempted withdrawal indefinitely of the remainder was, we think, without legal warrant and void.”

The syllabus of the case is as follows:

“After sentence has been pronounced in a criminal case the court cannot, as a matter of leniency to the defendant, suspend indefinitely its execution. A defendant was sentenced to pay a fine and the costs, and to stand committed to jail until payment, the period of imprisonment being limited to six months; and the court directed that if the costs were paid at once the sentence of •imprisonment be suspended until further order. The defendant paid the costs accordingly, but failed to pay the fine. Held, that an order, made more than six months later, that defendant pay the fine and stand committed to jail until payment in accordance with said sentence, was without authority.”

Section 143 of Bunn’s Constitution of -Oklahoma (Const art. 6, § 10) provides:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole, or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole or reprieve.”

The statutes of Oklahoma relating to the enforcement of judgments in criminal cases are contained in volume 2 of Wilson’s Revised and Annotated Statutes of Oklahoma of 1903, at chapter 68, and are as follows:

'“Sec. 5581 (Sec. 445). When a judgment, except of death, has been pronounced, a certified copy of the entry thereof, upon the minutes, must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.”
“Sec. 5583 (Sec-. 447). If the judgment be imprisonment or a fine and imprisonment, until such fine-be paid, the defendant must forthwith be committed to the custody of the proper officer,-and by him detained until the judgment be complied with.”

From the foregoing provisions of the Constitution, it will be observed that no one within the state is given power to reprieve, commute, parole, or pardon an offender with the exception of the Governor, and it will be further observed that, when judgment has been pronounced, a certified copy of the entry thereof must be forthwith furnished the officer whose duty it is to execute it, and where the judgment is imprisonment the defendant must forthwith by such officer be committed and detained under the execution. There is no latitude allowable under these provisions. They embody the plain, unambiguous letter of the law. Under such statutes, where the execution is not stayed by proper proceedings to reverse, vacate, or modify, service of sentence under a judgment of imprisonment begins on the day on which it is rendered, and continues until fully executed according to law. Nor can there be any doubt of the salutary character of this law. Speedy and certain punishment, following the infraction of a law, best meets its ends and purposes, and leniency, through delay toward an offender, seldom works kindness to him or safety to the public; but where circumstances do arise which render the sentence or operation of the law unduly harsh or cruel, and by reason of its universality the operation of the law is thought to work ill in particular cases, the power is vested in the’Governor to reprieve, commute, parole, or pardon, except uncertain cases; but he, in the exercise of this right and duty, is hedged around by the provision that he must report his doings thereunder to the Legislature. Such power is not vested in a court, and it is as much within the law as the poorest defendant who appears before it for sentence. Statutes provide penalties ' for the infraction of law, and where incurred they are not subject to enforcement on the whim, caprice, or discretion of the court; and if a court undertakes to do so, it would lead, ultimately, as stated by the Supreme Court of Iowa, to the most absurd results.

Let us look at the facts in this case, and see'if this is not true. Our Constitution provides that one who is guilty of unlawfully selling- intoxicating liquors “shall be ^punished,' on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.” In the case at bar the defendant, being charged with the violation of this law, in the first case entered his plea of guilty, and the court assessed the minimum fine and imprisonment thereunder, and then, instead of incarcerating him in accordance with the plain terms of the law, deliberately accepted the fine and costs and permitted him to go during good behavior. What do we now find? But a trifle more than a month had elapsed when the same defendant is again before the same court, charged with the same offense, and entered the same plea. Again the court assessed a fine and the imprisonment required under the law, and once more solemnly entered an order releasing the defendant during good behavior. Were such a course permitted to trial courts,' and did it recieve the sanction of this court, it would make the enforcement of the law a mere farce, bring all courts in disrepute, and consummate the results noted. Such enforcement would result in licensing the sale of intoxicating liquors by the payment of fines at stated intervals. This course we cannot sanction. The Constitution will not permit it, and the statute plainly prohibits it. The execution should have issued for the imprisonment of this defendant on the day of his conviction. His incarceration should have taken place under it. That it did not is to be regretted; but the court has no power or jurisdiction after the expiration of the time of the sentence and of the term of court when rendered to call it back and issue a commitment thereunder. We fully concur in the sentiments' expressed by Chief Justice Wallin of the Supreme Court of North Dakota in the case of In re Markuson, supra, where he says:

“It is an unpleasant duty to enter an order discharging the petitioner from custody, in view of the fact that he was convicted by a competent court, and has not actually suffered the punishment indicated in the final judgment of the court. But our .duty is plain,'and we may not shirk from its performance.”

While in this instance, if we had the power to sanction the execution of the belated commitment, which we have not, it would result in the punishment of one guilty man, yet the conclusion which the law -compels will doubtless prevent the escape from punishment of many guilty men in the future ;but, whatever the result, it is the law, and the petitioner will be discharged.

Hayes, Kane, and Turner, JJ-, concur; Williams, C. J., dissents.


author: Williams, C. J.

text:
    Schwedes v. State.
    No. 46.
    Opinion Filed February 4, 1909.
    (99 Pac. 804.)
    INTOXICATING LIQUORS — Interstate Commerce. Under subdivision 3, see. 8, art. 1, of the Constitution of the United States, commonly referred to as the “interstate commerce clause” of the Constitution, a resident of one state has the right to have shipped to him from another state alcoholic liquors, when ordered by him for his and his family’s use, and to keep the same for such use; and the state cannot, under its police power, enact laws so as to substantially hamper or burden such constitutional right to have such shipment made and to receive and retain the same for personal use.
    (Syllabus by the Court.)
    On certificate from the Criminal Court of Appeals.
    William Schwedes was convicted of conveying intoxicating liquor from one place in the state to another, such liquor not having been lawfully purchased as authorized by the Constitution of the state, and he brought error to the Criminal Court of Appeals which court certifies the question to the Supreme Court as involving the construction of Const., art. i, § 9 (Bunn’s Ed. § 499), prohibiting the shipment or conveyance of intoxicating liquor from one place in a state to another, except the conveyance of a lawful purchase. Reversed. .
    This cause was certified from the Criminal Court of Appeals to this court,, as involving the construction of that part of the Constitution of the state of Oklahoma which prohibits the shipment • or conveyance of intoxicating liquors from one place in the state to another place therein, except the conveyance of a lawful purchase. Section 499 of Bunn’s Edition of the Constitution (section 9, árt. 1, of the Constitution; Gen. St, Ann. Okla., 1908, p. 76).
    The plaintiff in error was convicted on the 30th day of December, 1907, in the county court of Grant county, in a prosecution by information which charged that he, the defendant in the trial court, did on the 20th day of December, 1907, in Grant county, unlawfully and willfully carry and convey certain intoxicating liquors, to wit, 12 quarts of whiskey, from one place in said state, to wit, the depot of the Chicago, Rock Island & Pacific Railway Company, in Pond Creek, in Grant county, to another place in said state, to wit, the livery barn of said Schwedes in Pond Creek, said liquors not having been lawfully purchased as authorized by the Constitution of the state of Oklahoma.
    The defendant in said court asked for several instructions, which were refused by the court, in words and figures as follows, to wit:
    “No. 7. If you find the liquor charged to have been carried by the defendant had just been imported by a common carrier, from some person in another state of this Union, and that the same was imported for the personal use of the defendant, then the defendant had a right to recieve and carry and convey the same to his own house or apartment, in the original package, for his personal use, as long as there was no intent on -his part to sell or dispose of the same contrary to law, or to put the same to an unlawful use.” “Refused: Exception to defendant. H. H. Rogers, county Judge.”
    “No. 8. If you find that the liquor which was charged to have been carried by the defendant was in the original package and the property of the defendant, and had been importd from another state or foreign country by a common carrier for his own personal use and consumption, and not for .the purpose of sale, barter, or exchange, then you should find the defendant not guilty.” “Refused: Exception to defendant. • H. IT. Rogers, County Judge.”
    “No. 10. You are instructed that if you find that the defendant did carry the intoxicating liquors charged in the information, and that the same was imported from a foreign state or country, for his own use and consumption and not for the purposes of. barter, sale or exchange, then the defendant had a right to receive the same and carry it to his own apartments, in the original package that it was shipped in, so long as he did not convey same for any other use.” “Refused: Exception to defendant. .H. H: Rogers, County Judge.”
    These instructions were based upon the testimony of the defendant himself, which is substantially to the effect that he had gotten a -box of liquor at the depot at Pond Creek, and had started to take it to his home, and whilst he was on his way thereto he was arrested by the sheriff of Grant county and taken to his livery barn, where the box was opened and the contents seized by the officer; that the liquor he was carrying was shipped to him by Stulz Bros., liquor dealers, at Kansas City, Mo., that said liquor was shipped to him by said Stulz Bros, in the pursuance of an agreement had with a salesman in the employ of said Stulz Bros., who stated to said defendant that he would send him something to drink Christmas; that he got the liquor for himself and family, for their own use, for a “Christmas drink,” as said by the defendant.
    The requested instructions on the part of the defendant in the trial presented the question of the right of a person to purchase in good faith for his own use, intoxicating liquors in a foreign or another state, and have same sent to him by express or other means of transportation, and whether the consignee might go to the express office or depot and receive the liquor so purchased and carry same to his residence for his use.
    The refusal of the trial court to give the instructions requested is assigned as error in the Criminal Court of Appeals, and it was considered by that court that the construction of the Constitution is1 brought into quesion, and this ' proceeding is by virtue of the provisions of section 2, art. 1, c. 28, p. 291, of thq Session Laws of Oklahoma, 1907-08 (section 2214, art. 12, Gen. St. Ann. Okla., 1908) certified to this court.
    S. P. Ridings, for plaintiff in error.

      Fred S. Caldwell, special, counsel, for the State.
   Williams, C. J.

(after stating the facts as above). It is insisted by the plaintiff in error that the portion of the prohibition article which provides that “any person, * * * who shall ship, or in any other way, convey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished, * * *” is repugnant to the third clause of section 8, art. 1, of the Constitution of the United States, commonly referred to as the “interstate commerce clause” of the Constitution, wherein the power is delegated to the Congress of the United States to regulate commerce with foreign nations and among the several states and with the Indian tribes.

Under the provisions of said prohibition article, there is an attempt to prevent all persons from shipping, or in any way conveying, intoxicating liquors from one place within this state to another place therein, except a purchase from the state agency. On the part of the defendant in error, it is insisted that that portion of the act of Congress approved August 8, 1890, entitled “An act to limit the effect of the regulations of commerce between the several states and with foreign countries in certain cases,” otherwise known as the “Wilson Act” (Act. Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]), permits the adoption and enforcement of said provision in the prohibition article. It reads as follows :

“That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the law of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquors or liquids had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

In the case of Vance v. Vandercook Company, 170 U. S. 452, 18 Sup. Ct. 679, 42 L. Ed. 1100, Mr. Justice White, in delivering the opinion of the court, said:

“But the right of persons in one state to ship liquor into another state to a resident for his own use is derived from the Constitution of the United States, and does not rest on the grant of the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, * * * then they are void. If they do not, then there is no lawful ground of complaint on the subject. We are thus brought to examine whether the regulations imposed by the state law on the right of the residents of other states to ship into the state of South Carolina alcoholic liquor to the residents of that state, when ordered by them for their own use, are so onerous and burdensome in their nature as to substantially impair the right; that is, whether they so hamper and restrict the exercise of the right as to materially interfere with or, in effect, prevent its enjoyment.”

The court further said, on page 456 of 170 U. S., page 681 of 18 Sup. Ct. (42 L. Ed. 1100) :

“Conceding, without deciding, the power of the state, where it has placed the control of the sale of all liquor within the state in charge of its own officers, to provide an inspection of liquors shipped into a state by residents of other states for use by residents within the state, it is clear that such a law to be valid must not substantially hamper or burden the constitutional right on the one hand to make, and on the other to receive, such shipment.”

In the case of Heyman v Southern Ry. Co., 203 U. S. 277, 27 Sup. Ct. 107, 51 L. Ed. 178, Mr. Justice White, in delivering the opinion of the court, said:

“And in this case we deal only with the power of the state to enforce its police regulations against goods of the character of those enumerated in the Wilson act, the subject of interstate commerce, before delivery. We must not be understood as in any way limiting or restricting the ruling made in Vance v. Vandercook Co., * * * upholding the right of a citizens of one state to bring from another state into the state of his residence, and keep therein, for his personal use, the merchandise referred to in the Wilson act. Iii other words, as in the case at bar, delivery had not taken place when the seizures were made, and the control of the state over the goods had not attached. We are not called upon to consider whether, if'the power of the state had attached by delivery, the state might not have levied upon the goods on the charge that they had not been bona fide bro'ught into the state, and were not held by the consignees for their personal use, and therefore, were not within the ruling in Vance v. Vcwidercrook. * * *”

The principle of law covered by the instructions was within the rule as announced by Mr. Justice White in Vance v. Vandercook Co., and Heyman v. Southern Railway Co., supra, in construing said part of the Wilson Act and the interstate commerce clause of the Constitution.

It is not essential for the decision of this case that we pass upon the following- questions: (i) After delivery has been made by the carrier to the consignee, under the laws in Oklahoma, can the state levy upon said goods on the charge that they have not been bona-fide brought into the state, and held by the consignee for his personal use or that of his family? (2) Although such goods may not be brought into the state for the personal use of the consignee or his family, but for the purpose of sale, Which is prohibited under the state law, can such consignee be prevented from receiving and transmitting the same to his home, place of business, or storage house ? These questions are reserved.

The instructions are at all events sufficiently favorable to the state. It follows that the instructions numbered 7, 8, and 10, requested by the defendant in the trial court, should have been given.

AH' the Justices concur.