Ex Parte Smith

In Ex parte Cain, 20 Okla. 125, 93 P. 974; Id.,1 Okla. Cr. 7, 93 P. 974, the Supreme Court held that the constitutional provision prohibiting the barter, sale, manufacture, giving away, etc., of intoxicating liquors was self-executing and became immediately enforceable in the courts of this state on admission of the state into the Union.

Further in that opinion it was held that the word "imprisonment" as used in such article meant imprisonment in the county jail, and for that reason the offense there defined was a misdemeanor and not a felony.

In that opinion it was held also that the territorial statute prescribing a maximum punishment for misdemeanors (where there was "no different punishment * * * by some existing provision of law") at imprisonment in the county jail not exceeding one year and a fine not exceeding $500 was not in conflict with such article of the Constitution and was applicable to the maximum punishment for a violation of the article; that unless otherwise specifically provided the word "imprisonment" meant imprisonment in the jail.

The Legislature was inhibited to make the fine "less than fifty dollars" and the imprisonment "less than thirty days" — to quote the language of the Constitution.

According to the opinion in Ex parte Cain, supra, the penalty provision of the prohibitory liquor article of the Constitution should read to mean "shall be punished, on conviction thereof, by fine not less than $50.00 and by imprisonment (in the county jail) not less than thirty days for each offense."

The framers of the Constitution employed the language of the Enabling Act in the prescription of the penalty provision. In adopting this language the people fixed a minimum punishment below which the Legislature could not go, but left the maximum punishment to be later provided by legislative action. But the Enabling Act provided that the provisions of the Enabling Act relative to prohibition "should be immediately enforceable in the courts of said state." In order to make the constitutional article on prohibition immediately enforceable in the courts of the state, that is, to make it self-executing, it was necessary that the word "imprisonment," as used in said article, have a definite and fixed meaning as applied to the amount of minimum punishment therein temporarily fixed. The people therefore provided, as held by the Supreme Court, that the word "imprisonment," unless specified otherwise, meant "imprisonment" in the "county jail." The word "imprisonment" therefore had a fixed meaning in the minds of the people when this article of the Constitution was adopted. The adoption of the article was equivalent to saying that the place of imprisonment for the minimum punishment for this offense is fixed as the "county jail."

The act here in question provides a minimum imprisonment of one year in the penitentiary. The act is directed at various "attempts" or "steps" in the manufacture of intoxicating liquor. The manufacturing of intoxicating liquor is punishable by the self-executing prohibition article of the Constitution and supplemental legislation which leaves the place of minimum imprisonment in the county jail. The place of "imprisonment" for the minimum punishment for manufacturing intoxicating liquor has been fixed by the Constitution to be in the "county jail." It follows, therefore, that the Legislature is powerless to fix the place of "imprisonment" for the minimum punishment for the attempted offense in the penitentiary while the minimum punishment for the complete offense must remain to be in the county jail. If, as held in Ex parte Cain, the word "imprisonment" meant county jail when the Constitution was adopted, it means county jail now.

As to the place of "imprisonment" provided as the minimum punishment under the terms of the present act, there seems to be, under the former holdings of this and the Supreme Court, a clear conflict with the constitutional prohibition article, and for that reason the act in question cannot be enforced.

In my opinion the amount of minimum fine and the length of the term of minimum imprisonment may be increased but not diminished, but the place of the term of minimum "imprisonment" became a fixture when the Constitution was adopted.