The Daily Ardmoreite. [volume] (Ardmore, Okla.) 1893-current, 1910-09-13
SUSTA|NS DEMURRER
IN KEELING PLACE
JUDGE RUSSELL GIVES HIS REAS-
ONS-SAYS LEGISLATURE CAN
NOT GO BEYOND CoNSTITU-
TlONAl LIMIT.

In sustaining the demurrer TO the
indictment against Tom Keeling charg-
ed with selling liquor TO minor,
Judge Stillwell II. Russell gave the
following as his reasons for holding
the statutes invalid:
The information in this case
charges the defendant with the unlaw-
full and felonious sale of intoxicating ng
liquor to a minor by the name of j. G.
Lindsey, which alleged offenss Is
made felony by section 4211, Snyder's
Compiled Laws of Oklahoma.
The defendant files a general demur'
rer to the information which alleges
generally that the information does
not state facts sufficient to constitute
crime against the penal laws of the
state of Oklahoma.
BY the constitution of the state OF
Oklahoma it Is affirmatlvely stated
that any person, individual, or corpor-
alton, who shall manufacture sell,
banter. give way, or otherwise furnish
any intoxicating liquor to anyone,
shall be punished on con.
yiction thereof by fine not less than
fifty $500 dollars and imprisonment
not less than thirty (3O) days.
The supreme court of the state or
Oklahoma has in effect decided that
the offense for a violation of the pro-
hibition law is a misdemeanor.
/ While the demurrer does not speci
fcally present, nor has counsel for
defendant raised the point as ground
for demurrer to the information, that
the act of the legislature in making
it a felony to sell intoxicating liquor
to a class of persons is other than
the punishment prescribed by the con-
stitution itself yet, it is alleged N
the demurrer that the information
does not state an offense against the
penal laws of the state, we deem II
proper to inquire If there exists a
valid ground that would indicate tho
weakness of the states contention In
this case.
The information, on the face Of II,
sufficiently alleges the offense as de-
fined by the statute but the question
in the courts mind is: Can the stat
ute be sustained in view OF the const-
tutional provision?
The constitution makes no exception
in the punishment 10 those who shall
sell, barter give away, or otherwise
furnish intoxicating liquors, but in the
act OF the legislature it is attempten
TO make exceptions confined to three
classes, to,wit: Minors, habitual
drunkards and persons of unsounf
mind.
Inasmuch as the constitution has
fixed the class of punishment as ap
piled to "any and every person" who
/ shall sell, or otherwise furnish intoXi-
eating liquor we are of opinion that
the legislature is without constitution
al authority to aggravate the penalty.
The legislature may as well under
| take TO say, in the face Of the cons,i-
tutlonal provision, that it is a felony
10 sell any age, or any other class
than those named in the act. For IL
lustration. if the constitution should
declare that homicide of any person
should be punishable by Imprisonment
and fine. the legislature would Re with
out authority to prescribe a different
punishment, the constitution being
specific as to the character Of the pun
ishment or penalty prescribed places
a limitation upon the power of the
legislature.
II the constitutional provision on
this subject had simply made It un-
lawful to sell or otherwise furnish
intoxicating liquor, then, in such case
penalty could have been lawfully rel
egated for the legislature to prescribe,
but as our organic law says that "tail
and dollars" shall be the penalty the
legislature in our opinion Is prevented
from inflicting a more aggravated
penalty.
For the reasons given herein the
dmurer Is sustained.
S. II. RUSSELL,
DHstrict Iudge