er of the Legislature, it may enact laws in aid of and in addition to the provision and extending its terms. We think this in accord with the holding of the Supreme Court in Ex parte Cain, supra, where it is said: "The rules of construction should be so applied to written Constitutions as to give effect, if possible, to the intent of the framers and of the people who adopted it and to promote the objects for which the same was framed and adopted. But it may be contended, if we adopt the literal words of this provision, that, whilst it is stated that the same shall be immediately enforceable, yet we find no maximum punishment provided, and that consequently the same is not a complete criminal statute without such definite provision, and that therefore it is not enforceable without additional legislation to give it effect. A statute providing a minimum, without fixing the maximum, punishment, is neither invalid as being in violation of section 9, article 2, of our Constitution, nor as being too vague and indefinite to be enforced, at least as to the minimum punishment which is valid without additional enactments. State v. Fackler, 91 Wis. 419, 64 N. W. 1029; State v. Williams, 77 Mo. 310. Hence it is not necessary, in considering as to whether or not said provision is self-executing, to determine as to whether or not punishment in excess of 30 days imprisonment and $50 fine under said prohibition be made self-executing. The only difference | executing, is also a limitation upon the powbetween the requirement of the enabling act, and the provision as ultimately adopted by the people, is that the people chose to make and did make the provision applicable to the whole state; whereas, the enabling act required that it be made effective only in that portion of the state formerly Indian Territory and the Osage Indian Reservation. And we think it cannot be plausibly contended that Congress in formulating the enabling act, and the constitutional convention in framing and the people of the proposed state in adopting the Constitution, had in mind, in connection with the prohibitory provision, the statutes of Oklahoma Territory defining felonies and misdemeanors and providing the punishment therefor, and that Congress enacted the act and the convention framed and the people adopted the Constitution with reference to such statutory provisions, and thereby made them an integral part of our organic law. On the contrary, we think that, while Congress and the people intended to fix the minimum punishment for the offense and to make the provision self-executing, a present enforceable law for the violation of which there could be imposed in any event the minimum punishment therein prescribed, and a severer one if the statutory provisions put in force sufficiently supplemented the Constitution as to authorize it, nevertheless they purposely omitted to declare the maximum punishment in order that the Leg-provision incorporated in our Constitution, islature might be free to fix it as future conditions might render proper, even varying such punishment, if it saw fit, according to the age, sex, or condition of the person to whom the liquor should be dispensed, the nature of the liquor sold, the manner of the sale, or the status of the seller. If it had been intended that a fine of only $50 and imprisonment for only 30 days could be imposed for this offense, then the Constitution would have stated simply that the punishment should be a fine of $50 and imprisonment for 30 days, instead of saying, as it does, that the punishment should be a fine of not less than $50 and imprisonment for not less than 30 days. And, had it not been intended that the Legislature should fix the maximum punishment, then the Constitution would itself have fixed it. The fact that the Constitution did not do so is sufficient reason why the Legislature may do so. The fact that we look to our statutes for the maximum punishment is proof that such punishment is not immutably fixed. without further legislation, could be imposed; for, having determined that said prohibitory provision prescribed an enforceable minimum punishment, we necessarily conclude that said provision, as it appears in said Constitution, is self-executing." And again, in State ex rel. Caldwell v. Hooker, County Judge, 22 Okl. 712, 98 Pac. 964, the Supreme Court, in passing upon the constitutionality of the so-called "Billups Bill," said: "Was it the intention of the framers of the Constitution of our state, in proposing and separately submitting the prohibition clause, that it should operate as a limitation upon the power of the Legislature, with respect to dealing with the liquor question? In construing same, the primary inquiry is to ascertain the intention of the framers, and of the people who adopted the clause under consideration, to determine which technical rules should be disregarded, and a mean between a strict and a liberal construction adopted. Cooley's Const. Lim. (7th Ed.) p. 93; 8 Cyc. 730; 5 Current Law, It is not every self-executing provision 622; 6 Am. & Eng. Law (2d Ed.) 921. This of a Constitution which exhausts legislative provision has been held by this court to be power upon the subject with which it deals. self-executing, capable of being put into opThere are many such where legislation in eration without additional legislation. aid of or in addition to the provision is parte Cain, 20 Okl. 125, 93 Pac. 974. both permissible and desirable. Certainly spondent contends, "Thus far will we go in the Legislature can enact nothing in deroga- the matter of prohibiting the legal traffic tion of the constitutional provision; but un- in intoxicating liquors, and no further,' inless such provision, in addition to being self- sisting that, when the Constitution defines Ex Re 116 P.-23 the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or extend the penalty to other cases. Holley v. State, 14 Tex. App. 508. In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified. Stevens v. Benson [50 Or. 269], 91 Pac. 578; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Beecher v. Baldy, 7 Mich. 488; Willis v. Mabon, 48 Minn. 140, 30 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; People v. Draper, 15 N. Y. 532; Cooley's Const. Lim. (7th Ed.) 122; Ordronaux's Const. Legislation, 262265. In creating the legislative department, and in conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department of a state is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. Cooley's Const. Lim. (7th Ed.) 126. By section 3 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 269), it was specifically provided by Congress that the constitutional convention, in forming a Constitution for the proposed state of Oklahoma, should provide therein that 'the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now (then) known as the Indian Territory and the Osage Indian Reservation and within any other parts of said state which existed as Indian reservations on the first day of January, nineteen hundred and six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union. Such provision is incorporated ipsis verbis in section 7, art. 1 (Bunn's Ed. par. 9), of the Constitution. The convention submitted practically the same provision, separately, to the voters of the state for ratification or rejection at the same time the Constitution was voted on, which was adopted, extending such provision to the entire state. It is presumed that the same was submitted with the same 串 incorporated in our Constitution, and that was certainly not with a purpose to limit, by implication, the power of the Legislature to deal with the liquor question. Rigorous prohibition laws having been in force in the Indian Territory since the Five Civilized Indian Tribes had migrated there, it was considered obligatory by Congress that prohibitory laws should be required to be continued in such portions of the state as were, at the time of the admission of the state into the Union, Indian reservations, or under the exclusive control of the federal government. When Congress made it mandatory upon the Constitution framers that such a provision should be incorporated in the Constitution, it was certainly not with a view of limiting the power of the Legislature to act, except in so far that it could not pass legislation in conflict therewith." If our Constitution was silent upon the liquor question, or merely forbade its sale without prescribing any punishment therefor, certainly the Legislature, its authority extending "to all rightful subjects of legislation," would have power to make the sale of liquor a felony; and, that being true, why would a constitutional provision, which forbids the sale of liquor and fixes the minimum but not the maximum punishment therefor, prevent the Legislature from declaring the offense a felony? An enactment of that character may be so drawn as not to take from the Constitution one item or term contained therein, as not to authorize one thing which the Constitution forbids, or remit any of the punishment which the Constitution imposes; and, should it be so framed, then we fail to perceive wherein it would violate the Constitution. That instrument avowedly fixes only the minimum punishment for the offense, leaving the power to fix the maximum punishment limited only by the provision that such punishment must not be cruel or unusual. State v. Weiss, 84 Kan. 165, 113 Pac. 388, presents practically the same question as the one now under consideration. Article 15, § 10, Constitution of Kansas, provides that the manufacture and sale of intoxicating liquors shall be forever prohibited in that state, except for medical, scientific, and mechanical purposes. Sections 4361 and 4362, Kan, Gen. Stat. 1909, made it an offense to sell intoxicating liquors in that state for any purpose. And in that case it was contended that the Constitution was a limitation upon the power of the Legislature to interfere with the manufacture and sale of intoxicating liquor for the three excepted purposes, and that the act was therefore unconstitutional. But the Supreme Court of Kansas held the act constitutional, saying in effect that the exceptions contained in the constitutional provision only defined the limit to which the Constitution itself went in prohibiting the manufacture and sale of in may fix the maximum punishment, is nevertheless powerless to change that which the Constitution has fixed. If it can do so with respect to a sale to a minor, person of unsound mind, or habitual drunkard, then by a division of the purchasers or sellers into classes according to their age, sex, condition, or occupation, so arranging the classification as to include all the people, and fixing the punishment specially for a sale to or by persons in each class without regard to the constitutional provision, such provision could be entirely abrogated. It goes without saying that this may not be done. such provision the Legislature would have | tution has fixed the minimum punishment for had the power to enact everything contain- this offense, and the Legislature, while it ed in the constitutional provision and the act combined; and that the fact that the Constitution went no further than it did was no limitation upon the power of the Legislature to legislate in the same direction as fully as it could otherwise have done. And in State v. Durein, 70 Kan. 13, 80 Pac. 987, 15 L. R. A. (N. S.) 908, that court, in considering the same question, said: "The amendment to the Constitution of this state already quoted does not limit or abridge the power of the Legislature further to prohibit the traffic in intoxicating liquors. It restrains the Legislature in its power to tolerate only, and not in its power to suppress." It thus follows that the enactment in quesCertainly, if our Constitution had fixed the tion is unconstitutional and void; and the maximum, as it has fixed the minimum, pun-act charged in this indictment is still only ishment for this offense, the Legislature a misdemeanor, of which the district court would have no more power to change such had no jurisdiction. maximum punishment than it now has to change the minimum punishment so fixed; but, the Constitution not having declared the maximum punishment, it is within the power of the Legislature to declare the same; and assuredly the solicitude which the state ought to feel for the welfare of its future citizenship is ample warrant for making felonious the furnishing of intoxicating liquor to a minor. The judgment of the lower court is therefore reversed, and the cause remanded, with directions to certify the indictment and record in this cause to a court having jurisdiction thereof, as required by law. FURMAN, P. J., and DOYLE, J., concur. ARMSTRONG, J., disqualified and not sitting. (6 Okl. Cr. 122) WYCHOFF v. STATE. 3, 1911.) [2] But with all this, wholesome and beneficent as we deem the purpose and intent of this legislation, and reluctant as we are to disturb it, we are nevertheless compelled (Criminal Court of Appeals of Oklahoma. July to hold the act unconstitutional in another respect. The constitutional provision is allembracing in its terms, and it includes a sale to a minor as fully as it does a sale to any other person. If it did not, then prior to the passage of the act under consideration a prosecution would not lie for a sale of liquor if the sale were made to a minor. And the Constitution says that: "Any person CRIMINAL LAW (§§ 93, 101*)-INFORMATION— The district court has no power to receive, file, or take cognizance of an information charging a misdemeanor; and an information charging a misdemeanor filed in the district court cannot be transferred to the county court, but must be dismissed. [Ed. Note.-For other cases, Law, Dec. Dig. §§ 93, 101.*] see Criminal Appeal from District Court, Okfuskee County; John Caruthers, Judge. Fred Wychoff was convicted of selling liquor to a minor, and appeals. Reversed and remanded. C. T. Huddleston and W. T. Banks, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. who shall sell, barter, give away or otherwise furnish any intoxicating liquor of any kind shall be punished, on conviction thereof, by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense." The Legislature may add to the stringency of this provision; but it cannot remit or repeal the requirement that a violation of the provision shall be punished by a fine, and that the fine shall be not less than $50, and make the offense punishable by imprisonment alone. If it could, then by the same reasoning it could remit the imprisonment and make the offense RICHARDSON, Special Judge. This was a punishable by a fine alone; and, if it could prosecution for selling liquor to a minor, inremit either, then it could remit both and say stituted by information filed in the district to the man who thrives by the debauchery of court of Okfuskee county. The cause was children that he may do so with absolute tried in that court, and plaintiff in error impunity. The act in question remits the was found guilty as charged and sentenced fine, and it fixes the minimum punishment at to imprisonment in the penitentiary for a one year in the penitentiary. The Consti- term of one year. He filed a motion for a For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes new trial and in arrest of judgment, both | reversed, and the cause remanded, with direcof which were overruled; and he appeals. tions to dismiss the same. In the case of John Nowakowski v. State. 116 Pac. 351, just decided, it was held that the act under which this prosecution was instituted and carried on is unconstitutional and void; that the offense denounced by the act is still only a misdemeanor; and that the district court therefore has no jurisdiction of the offense. FURMAN, P. J., and DOYLE, J., concur. ARMSTRONG, J., disqualified and not sitting. KESTER v. STATE. (Criminal Court of Appeals of Oklahoma. July 3, 1911.) Appeal from District Court, Greer County; G. A. Brown. Judge. Grover Kester was convicted of selling liquor to a minor, and appeals. Reversed. C. C. Wells and C. G. Hornor, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. This proceeding was instituted by information and not by indictment. The district court has no power to receive, file, or take cognizance of an information charging a misdemeanor, and no power to transfer such information to the county court; the provision for transfers being limited to indict ments for misdemeanors returned by the grand jury into the district court. Article 2, c. 10, Snyder's Comp. Laws. It follows therefore that this prosecution has never been legally instituted, and must be dis-ferable to the county court. Fred Wychoff v. missed. This will not prevent the county attorney from filing an information against plaintiff in error for this offense in the county court. The judgment of the lower court will therefore be reversed, and the cause remanded, with directions to dismiss the same. FURMAN, P. J., and DOYLE, J., concur. ARMSTRONG, J., disqualified and not sit ting. EVANS v. STATE. (Criminal Court of Appeals of Oklahoma. July 3, 1911.) Appeal from District Court, Greer County; G. A. Brown, Judge. Edd Evans was convicted of selling intoxicating liquor to a minor, and he appeals. Reversed and remanded. C. C. Wells and C. G. Hornor, for plaintiff in Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the state. error. is from a conviction upon an information filed RICHARDSON, Special Judge. This appeal in the district court of Greer county charging the sale of liquor to a minor. Upon the authority of Nowakowski v. State, 116 Pac. 351, just decided, the trial court was without jurisdiction of the cause; and the information is not transState, 116 Pac. 355, just decided. The judgment of the lower court is therefore reversed, and the cause remanded, with directions to dismiss the same. FURMAN, P. J., and DOYLE, J., concur. ARMSTRONG, J., disqualified and not sitting. MEEK v. STATE. (Criminal Court of Appeals of Oklahoma. July 3, 1911.) Appea! from District Court, Pottawatomie County; Roy Hoffman, Judge. Porter Meek was convicted of selling liquor to a minor, and appeals. Reversed and remanded. Cutlip & Maben, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. RICHARDSON, Special Judge. Trial of this cause was had in the district court of Pottawatomie county upon an indictment charging plaintiff in error with the crime of selling intoxicating liquor to a minor, and resulted in a verdict of guilty and a sentence imposing upon plaintiff in error a term of imprisonment in the penitentiary. This appeal challenges the constitutionality of the act (Sess. Laws 1909, p. 164) under which this prosecution was instituted and carRICHARDSON, Special Judge. Plaintiff in ried on. The same question has just been passerror was convicted in the district court of ed upon by this court in the case of John NowaGreer county upon an information charging him kowski v. State, 116 Pac. 351, in which it was with selling liquor to a minor, and was sen- held that the act in question remits the fine tenced to imprisonment in the penitentiary for which the Constitution has imposed for the illea term of five years. The act declaring this of- gal sale of liquor, and that it places the minifense a felony and fixing the punishment theremum term of imprisonment for the offense highfor is unconstitutional and void, and the districter than the Constitution has placed it, and that court therefore had no jurisdiction of the cause. John Nowakowski v. State, 116 Pac. 351, just decided. This prosecution having been instituted by information and not by indictment, the cause is not transferable to the county court, but must be dismissed. Fred Wychoff v. State, 116 Pac. 355, just decided. The judgment of the district court is therefore the act is therefore unconstitutional and void. That case is decisive of this. The judgment of the lower court will therefore be reversed, and the cause remanded, with directions to transfer the same to the county court or superior court for trial. FURMAN, P. J., and DOYLE, J., concur. ARMSTRONG, J., disqualified and not sitting. apolis, 30 Minn. 545, 16 N. W. 410. In Tonn v. City of Helena, 42 Mont. 127, 111 Pac. 715, the reason for requiring such notice is fully set forth. The same reason exists for the notice in case of injury to property as in case of injury to the person. Nichols v. City of Minneapolis, above. In an action against a municipality, under a statute of this character, the rule is quite uniform throughout the country that in order to state a cause of action the complaint must allege that the required notice was given. 28 Cyc. 1470. In failing to allege that the notice was given, the complaint fails to state a cause of action, and the trial court erred in grant Appeal from District Court, Silver Bowing a new trial. The order is reversed, and County: Jeremiah J. Lynch, Judge. Action by the Butte Machinery Company against the City of Butte. There was a judgment for defendant, and the trial court ordered a new trial. Defendant appeals. Reversed and remanded with directions. H. L. Maury, E. M. Lamb, J. R. Boarman, and N. A. Rotering, for appellant. Kremer, Sanders & Kremer, for respondent. HOLLOWAY, J. This action was brought to recover damages claimed to have been suffered by plaintiff as the result of alleged negligence on the part of the city of Butte. The trial of the cause resulted in a verdict and judgment in favor of the defendant city. The trial court granted plaintiff a new trial, and defendant appealed from the order. the cause is remanded, with directions to set aside the order, and enter, in lieu thereof, an order refusing plaintiff a new trial. Reversed and remanded. BRANTLY, C. J., and SMITH, J., concur. (34 Nev. 42) WERNER v. BABCOCK. (No. 1,841.) (Supreme Court of Nevada. June 19, 1911.) 1. APPEAL AND ERROR (§ 533*) — RECORD CONTENTS OF RECORD "JUDGMENT ROLL." Though Civil Practice Act, § 340 (Comp. Laws, § 3435), provides, among other things, that if any written opinion be placed on file, in entering judgment or making an order below, a copy shall be furnished, certified in like manner, etc., a written opinion and findings of the lower court do not constitute any part of the "judgment roll," but are only intended to aid the appellate court in the determination of an appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2339, 2400; Dec. Dig. § 533. * vol. 4, p. 3847; vol. 8, p. 7697.] 2. APPEAL AND ERROR (§ 527*) — RECORD The complaint alleges that the city was negligent in caring for a certain public sewer; that the sewer pipe became decayed; that the city was given notice of the defect, but failed to make repairs; that the sewer pipe finally gave way, and the sewage flowed out over plaintiff's property, causing damage to the amount of $2,750. The complaint does not allege that plaintiff, or any one in its behalf, ever gave to the city or its officers any notice of the injury. It is alleged that the damage occurred on May 15, 1909. The action was commenced on November 4, 1909. Section 3289, Revised Codes, provides: "Before any city or town in this state shall be liable for damages for, or on account of, any | injury or loss alleged to have been received or suffered by reason of any defect in any bridge, street, road, sidewalk, culvert, park, public ground, ferry boat or public works of any kind in said city or town, the person so alleged to be injured, or some one in his behalf, shall give to the city or town council, or trustee, or other governing body of such city or town, within sixty days after the alleged injury, notice thereof; said notice to contain the time when and the place where said injury is alleged to have occurred." The provisions of this section are applicable alike to injuries to person and inJuries to property. Nichols v. City of Minne- Hubbard, for respondent. BILL OF EXCEPTIONS-NECESSITY. As an appeal, in the absence of statement or bill of exceptions, carries up the judgment roll alone, findings made by the trial court cannot be considered, in the absence of a statement or bill of exceptions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2381-2383; Dec. Dig. § 527.*] 3. APPEAL AND ERROR (§ 671*)-AFFIRMANCE -RECORD PROPER. Where a judgment is supported by the pleadings, and nothing save the record proper is before the appellate court, it must be affirmed. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 671.*] Appeal from District Court, Esmeraldo Chester L. Lyman, for appellant. Robt. L *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |