Watkinson v. Adams , 187 Okla. 432 ( 1939 )

On rehearing it is urged that our opinion and decision in this cause is in conflict with our decision in Kramer, Rec., v. Eysenbach, Adm'x (decided Oct. 17, 1939) 186 Okla. 234,96 P.2d 1049.

The asserted conflict arises out of our reference to the remedial characteristics of section 9763, O. S. 1931, in that case and our allusion in the case at bar to its penal aspect.

The classification of the statute as to whether it is remedial or penal or possesses aspects both remedial and penal is attributed importance only as a guide in determining whether it should be liberally or strictly construed.

When a statute has been definitely classified as penal or remedial or determined to contain both penal and remedial features, it does not necessarily follow that an arbitrary guide has been established by which all cases said to fall under the statute can be decided with mathematical certainty. In fact both the rule requiring a liberal construction of remedial statutes and that authorizing strict construction of penal statutes are subordinate to the general principle that all statutes should be construed and applied in such a manner as to accomplish the legislative intent.

It is said in 25 R.C.L. 1078, in treating the rule of liberal construction of remedial statutes, that:

"* * * Courts cannot extend a statute to meet cases not within its scope, however meritorious they may be. * * *"

And the same work, in dealing with the construction of penal statutes, points out (25 R.C.L. 1084) that:

"The rule of strict construction of a penal law is subordinate to the rule of reasonable, sensible construction, having in view effectuation of the legislative purpose, and is not to be so unreasonably applied as to defeat the true intent and meaning of the enactment. * * *"

In the case at bar liability under the statute is sought to be imposed on a director for an action taken by the board of directors in his absence, a character of case specifically excluded from the operation of the statute by its own provisions. Imposition of liability in such case would not only "extend the statute to meet cases not within its scope," but would force the language of the act beyond and in contravention of its own terms. This is a construction which could scarcely be justified even should we depart from our announced view that the statute with respect to the liability, as distinguished from the enforcement of the liability, partakes of the nature and requires the construction of a penal statute.

As pointed out in the majority opinion (where we quoted with approval from the Colorado court, Credit Men's Adjustment Co. v. Vickery et al., 161 P. 297) when the liability has been established or determined to exist under the statute, provisions relating to its enforcement are regarded as remedial and demand liberal construction.

The situation in the Eysenbach Case, supra, was such that (with respect to the classification) we were reviewing the statute primarily with a view to enforcement of liability thereunder. We did not therein say nor hold that penal features did not exist in the statute. On the contrary, we, by implication, recognized their existence when we said at the outset of our discussion on the point that:

"Nor are we able to agree with defendant's contention that section 9763, supra, is penal in the sense that the cause ofaction herein will not survive." (Emphasis ours.)

There is some language in the cited case which standing alone and compared with isolated expressions in the case at bar might create the impression of a conflict; however, like all other judicial opinions, the two here discussed must be viewed in the light of the particular problem before the court. Conflicts are not created through a strict adherence to the literal meaning of language used, nor as the fruitful product of a vivid imagination groping for implications that might be inconsistent. When analyzed in the light of the facts, actual and substantial harmony prevails in the two cases.

It is appropriate in the interest of clarity to point out that in the Eysenbach Case, liability (as distinguished from its enforcement) did not depend entirely upon the statute (sec. 9763, supra), but on the contrary rested on equitable principles brought into focus by the identification of a trust fund (see paragraph 3 of the syllabus.)

The petition for rehearing is denied.

BAYLESS, C. J., WELCH, V. C. J., and RILEY, OSBORN, HURST, and DANNER, JJ., concur. CORN and GIBSON, JJ., absent.