Its ultimate object is the recovery of a money judgment, and it cannot at any time result in depriving the defendant of life or liberty, but merely of property. It is gov served that the statute uses the expression, "and in addition thereto," so that the punishments are concurrent, and not severable, and if one can be imposed, all must be imposed. The punishment for the misdemean-erned by the rules of procedure in civil inor is administered in a criminal prosecu- stead of criminal cases, and would not retion, while the penalty is collected in a quire evidence beyond a reasonable doubt to suit brought by the state. Both sides agree support it, or a unanimous verdict, or the that it requires two proceedings to complete other peculiar classes of protection which this punishment, one criminal, and one in are thrown around those whose life or libthe nature of a civil action, and we concur erty is at stake. Re Seagraves, 4 Okla. in this agreement; so that the question pre- 422, 48 Pac. 272, held that an action to resented is whether or not, for the punish-cover a penalty for intruding within the Inment of a crime, a man may be twice tried.dian country cannot be enforced by a crimIt will also be observed that this statute imposes both punishments for the same offense. It is not a case of the same acts constituting different offenses, or offenses against different governments. The constitutional provision referred to is as follows (art. 2, § 21, of the Constitution; Williams's Constitution and Enabling Act, $ 29): "No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense." First. This proceeding to recover the penalty is the punishment of an offense, or at least a part of it. inal proceeding. This subject has recently received a careful consideration in Hepner v. United States, 213 U. S. 103, 53 L. ed. 720, 27 L.R.A. (N.S.) 739, 29 Sup. Ct. Rep. 474, 16 Ann. Cas. 960, which was an action to recover the penalty prescribed by statute for inducing an alien to migrate to the United States for the purpose of performing labor there. The United States circuit court of appeals for the second circuit certified the question to the Supreme Court to determine whether or not, in an action to recover this penalty, where the evidence was sufficient, the court should instruct the jury to return a verdict for the United States, and the court held that the action to recover the penalty was not so far criminal in its nature as to prevent the direction of a verdict for the government, citing in support of its conclusion Stockwell v. United On this point the opinion of this court in States, 13 Wall. 531, 20 L. ed. 491; Jacob Chicago R. I. & P. R. Co. v. Territory, v. United States, 1 Brock. 520, Fed. Cas. 25 Okla. 238, 105 Pac. 677, is conclusive. No. 7,157; Stearns v. United States, 2 That was a proceeding in the nature of a Paine, 300, Fed. Cas. No. 13,341; United civil action, instituted against the rail- States v. Mundell, 1 Hughes, 415, Fed. Cas. road to recover the statutory penalty for ac- No. 15,834; United States v. Younger (D. cepting and receiving quail for the purpose C.) 92 Fed. 672; United States v. Baltimore of transportation. The quail were received & O. S. W. R. Co. 86 C. C. A. 223, 159 Fed. in Blaine county and transported through 33; Hawloetz v. Kass, 23 Blatchf. 395, 25 Garfield county, where the suit was brought. Fed. 765; United States v. Zucker, 161 U. The organic act of Oklahoma territory pro- S. 475, 40 L. ed. 777, 16 Sup. Ct. Rep. 641. vided that "all offenses committed in said The cases of Boyd v. United States, 116 U. territory, if committed within any organized S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; county, shall be prosecuted and tried with- and Lees v. United States, 150 U. S. 476, in said county," and it was argued by the 37 L. ed. 1150, 14 Sup. Ct. Rep. 163, are railroad company that the suit should have cited and limited in their application to the exact point there decided, namely, that been brought in Blaine county, as it was such an action was so far criminal in its the prosecution of an offense, although it was in the form of a civil action. This posi-ing compelled to testify against himself. nature as to prevent the defendant from betion was upheld by the court upon the authority of United States v. Chouteau, 102 U. S. 603, 26 L. ed. 246; Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 1. Second. While this is a proceeding to punish an offense, at the same time it possesses many of the attributes of a civil action. The Zucker Case, 161 U. S. 475, 40 L. ed. 777, 16 Sup. Ct. Rep. 641, was a suit to recover the value of merchandise alleged to have been forfeited to the United States under the act of June 10, 1890, chap. 407, § 9, 26 Stat. at L. 131, U. S. Comp. Stat. 1901, p. 1895, which provided for the forfeiture of the merchandise and punishment by fine or imprisonment. This act, therefore, is quite closely related to the one un der review, because both involve the pen- result is the same to the defendant,-the alty plus criminal punishment. It was held that depositions could be used over the objections of the defendants, notwithstanding the 6th Amendment, which would have entitled the defendants to have been confronted in court with witnesses against them, if the case had been criminal. Third. Having now determined that this proceeding, while designed to punish an offense, has for its object a mere money recovery, and is governed by the rules of procedure affecting civil cases, we now reach the inquiry whether or not the effect of the statute is to twice put the defendant in jeopardy of life and liberty for the same offense. At the threshold of this inquiry, we are met with the objection that the defend loss of property to the extent of the penalty. If a preponderance of evidence is enough to establish the wrong in one case, it ought to be sufficient to prove the offense in the other. There would appear to be no more reason why a defendant in an action to recover a statutory penalty should be enIn an extensive note in connection with titled to the privileges of one accused of the report of the Hepner Case, 27 L.R.A. crime than would be the defendant in an (N.S.) 739, the annotator, at page 743, action for damages for a negligent killing, says: "In examining the cases collected in because the negligence amounted to manthis note, it will be observed that those slaughter. That the action for a statutory holding the action to be civil in nature penalty is civil in nature has the support rather than criminal-whether the offense of a large majority of the cases in which is public or private-largely preponderate, the question has been squarely presented." and this would seem to be the better rule. The exceptions to the ordinary rules of procedure in favor of the accused on trial for a crime are believed to have arisen because of the fact that the defendant's life or liberty was at stake. So sacred was this individual right to life and liberty held that it gave rise to the maxim of the English law that it is better that ten guilty persons escape than one innocent suffer. Possibly some of the rules of criminal procedure also arose because, at common law, the accused, singu-ant is not in position to plead former jeoplarly enough, was not allowed counsel. ardy, because it does not appear that he has But it can scarcely be doubted that the ever been prosecuted criminally, and that rules formulated to shield the one innocent therefore there has been no previous jeopperson, although ten guilty ones might ardy to plead. In support of this position thereby go free, would not have been our attention is called to the case of Shevlinadopted had the only inconvenience suf- Carpenter Co. v. Minnesota, 218 U. S. 57, 54 fered by a person convicted of crime been a L. ed. 930, 30 Sup. Ct. Rep. 663, where it is pecuniary loss. The ancient pains and pen- said: "Replying to the contention that to alties for criminal acts were severe in the sustain this action would subject plaintiffs extreme, and might well justify a merciful in error to the jeopardy of a second punishprocedure, whereas, had the penalty been a ment, the court said that plaintiffs in error mere loss of property, it would hardly have were 'probably a little premature in raising called for a procedure different from that the point.' And further said: 'It might provided where the penalty would be a loss come with some force if presented in a crimof property for any other wrong. Nor will inal prosecution after recovery in a civil the fact that a person's character is in- | action.' In this we concur. In other volved in a charge of violating a penal stat- words, plaintiffs in error cannot base a deute furnish a sufficient justification for a resort to criminal trial rules; for is not a defendant's character as much involved in a civil action for damages for assault and battery as in a criminal prosecution for the same offense? It would seem, therefore, that no sufficient reason has been shown for adopting rules of criminal procedure in actions to recover statutory penalties. The penalty, broadly speaking, is a pecuniary one, the same as it is in any private action between individuals, and is no more a pun-state of Minnesota should proceed crimiishment-except, perhaps, in degree-so far as it bears upon the individual punished, than is the pecuniary loss imposed for any other wrong. The sum of money recovered may go to an individual, as compensation for an injury, or it may go to the state, as a penalty for a public offense; but the fense upon an anticipation of what may never occur. To permit this would discharge them from all liability, for the defense, if good at all, would be good against whatever action might be brought. Necessarily there must be a first jeopardy before there can be a second, and only when a second is sought is the constitutional immunity from double punishment threatened to be taken away. An occasion for the defense of double jeopardy may occur if the nally against plaintiffs in error. We do not mean to say, however, that it will be justified. We do not mean to say that the state law subjects an offender against its provisions to a double jeopardy." This argument, however, does not impress us as conclusive, and, as it was not the deciding point in that case, we do not believe it is | Consts. 1834 and 1796). The following the expression of the matured opinion of states use the expression, "life or liberty:" that court. It will be remembered that this Georgia (art. 1, § 8, Const. 1877, and same is a suit to recover a statutory penalty. in Consts. 1868 and 1865, art. 1, § 9); South The penalty is prescribed by the statute, Carolina (art. 1, § 17, Const. 1895). The and can be recovered only by virtue of the following states use the expression, "twice statute. If the statute is invalid, then no put in jeopardy for the same offense:" Calpenalty can be recovered. If the statute is ifornia (art. 1, § 13, Const. 1879, and same valid, then the penalty can be recovered, in Const. 1849, art. 1, § 8); Colorado (art. and the fine and imprisonment not only 2, § 18, Const. 1876); Idaho (art. 1, § 13, can, but must, be imposed. So that the Const. 1889); Indiana (art. 1, § 14, Const. question is not whether there has been an 1851, and same in Const. 1816, art. 1, § actual former jeopardy, but whether there 13); Montana (art. 3, § 18, Const. 1889); is a valid statute upon which this action can Nevada (art. 1, § 8, Const. 1864); North be maintained. If the statute is in conflict Dakota (art. 1, § 13, Const. 1889); Ohio with the Constitution, it is invalid. It does (art. 1, § 10, Const. 1851, same in Const. not exist. It is as if it were not, and there- 1802, art. 8, § 11); Oregon (art. 1, § 12, fore no action can be maintained under it. | Const. 1857); South Dakota (art. 6, § 9, While, if it is valid, both actions must be maintained. The failure of the public officers to discharge a duty which the statute imposes upon them cannot improve the statute, cannot give life to that which is dead. The statute must, of course, be tested by its own requirements, and not by what public officials have done in the past. Board of Education v. Aldredge, 13 Okla. 205, 73 Pac. 1104; Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381; Henderson v. Atlantic City, 64 N. J. Eq. 583, 54 Atl. 533; State ex rel. Frich v. Stark County, 14 N. D. 369, 103 N. W. 913; Dexter v. Boston, 176 Mass. 247, 79 Am. St. Rep. 306, 57 N. E. 379. We therefore proceed to an examination of the statute, to ascertain whether it is in conflict with the former jeopardy provision of our Constitution. The particular language which is relied upon as destroying the statute reads as follows: "Nor shall any person be twice put in jeopardy of life and liberty for the same offense." When our Constitution was adopted, similar provisions had been in the Constitutions of the United States and of the other states for many generations, and various phrases are used to express the same idea. The Constitution of the United States provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." 5th Amendment. Other Constitutions using the expression, "life or limb," are Alabama (the same language being found in its Constitutions of 1819, art. 1, § 13; 1865, art. 1, § 10; 1868, art. 1, § 11; 1875, art. 1, § 10; and 1901, art. 1, § 10); Delaware (article 1, § 8, Const. 1792, the same language being in its Constitutions of 1831 and 1897); Kentucky (Constitutions 1792, art. 12, § 12; 1799, art. 10, § 12; 1850, art. 13, § 14; and 1890, § 12); Maine (Dec. of Rights, § 8, Const. 1819); Pennsylvania (art. 1, § 10, Const. 1873, and same in Consts. 1838 and 1790, art. 9, § 10); Tennessee (art. 1, § 10, Const. 1870, same in Const. 1889); Utah (art. 1, § 12, Const. Michigan (art. 1, § 12, Const. 1835), Minnesota (art. 1, § 7, Const. 1857), and Wisconsin, (art. 1, § 8, Const. 1848) use the expression, "twice in jeopardy of punishment." New Hampshire, in its Constitutions of 1784 (art. 1, § 16), 1892 (part 1, art. 16), and 1902, uses the expression, "tried after an acquittal for the same crime or offense," and New Jersey has substantially the same provision (art. 1, § 10, Const. 1844). Arkansas first used the expression, “life or limb,” and changed to; "life or liberty," in 1868 (art. 1, § 9; Const. 1864, art. 2, § 12; Const. 1874, art. 2, § 8); Illinois in 1818 used the term, "life or limb" (art. 8, § 11), and in 1870 changed to, "jeopardy for the same offense" (art. 2, § 10, Const. 1870). Iowa's provision is substantially the same as that of New Hampshire (art. 1, § 12, Consts. 1857 and 1846). In 1855 Kansas used the expression, "jeopardy for the same offense" (art. 1, § 10, Const. 1855). In 1857 it changed to, "jeopardy of life, limb, or liberty" (§ 10, Bill of Rights, Const. 1857). While in 1859 it returned to the expression, "jeopardy for the same offense," art. 1, § 10, Const. 1859). In 1868 Louisiana had the expression, "for the same offense" (art. 6, title 1, Const. 1868). While in 1879 it changed to "jeopary of life or liberty for the same offense," and this was followed in 1879 (art. 9, Bill of Rights). In 1817, in Mississippi, the expression, "life or limb," was used (art. 1, § 13, Const. 1817), while in 1868 it was changed to, "jeopardy for the same offense" (art. 1, § 5), and this was followed in 1890 (art. 3, § 22). In 1820 Missouri used the term "life or limb" (art. 13, § 10), while it changed to, "life or liberty," in 1865 (art. 1, § 19), and followed this in 1875 (art. 2, § 23). Nebraska started, in 1866, with the expression, “jeop ardy of punishment" (art. 1, § 8), and changed it in 1875 to, "twice put in jeopardy for the same offense" (art. 1, § 12). In 1821 New York used the term, "life and limb" (art. 7, § 7), and changed in 1846 to, "jeopardy for the same offense" (art. 1, §6), which it followed in 1894 (art. 1, § 6). In 1842 Rhode Island used the term, "after an acquittal, be tried for the same offense" (art. 1, § 7), while in 1868 it changed it to, "jeopardy of his life or liberty" art. 1, § 18). In 1836 Texas used the term, "jeopardy of life or limbs" (§ 9, Bill of Rights), which it subsequently changed to, "jeopardy of life or liberty" (art. 1, § 14, Const. 1876). West Virginia started with, "jeopardy for the same offense" (art. 2, § 2, Const. 1861), which it subsequently changed to, "jeopardy of life or liberty for the same offense" (art. 3, § 5, Const. 1872). Connecticut does not seem to have any constitutional expression on the subject, although it is treated in that state as a fundamental principle of the common law that no person shall be subject for the same offense to be twice put in jeopardy. State v. Lee, 65 Conn. 265, 27 L.R.A. 498, 48 Am. St. Rep. 202, 30 Atl. 1110. usual form of punishment to take the limb of a defendant, and it is doubtless this fact that caused the early expression, "life or imb." Sir James Fitzjames Stephen, in peaking of early English punishments, says (History of the Criminal Law of England, vol. 1, pp. 58, 59): The punishment upon a second conviction for nearly every offense was death or mutilation. In Ethelred's laws it is said of the accused when ultimately convicted. 'Let him be smitten so that his neck break.' The laws of Cnut lay down the principles on which punishment should be administered, and also regulate the practice of the court. The principle is thus stated: "Though any one sin, and deeply for do himself, let the correction be regulated so that it is becoming before God and tolerable before the world. And let him who has power of judgment very earnestly bear in mind what he himself desires when he thus says, Et dimitte nobis debita nostra sicut et nos dimittimus. And we command that Christian men be not, on any account, for altogether too little, condemned to death; but rather let gentle punishments be decreed for the benefit of the people; and let not be destroyed for little These various constitutional provisions God's handiwork, and his own purchase apparently are treated by the courts as which he dearly bought.' The practice of meaning the same thing; the difference in the courts is regulated by the following phraseology not being discussed in the cases enactment: "That his hands be cut off, or which we have examined. Indeed, it is as his feet, or both, according as the deed may sumed by the Supreme Court of the United be. And if he have wrought yet greater States, in the case of Trono v. United wrong, then let his eyes be put out, and his States, 199 U. S. 521, 50 L. ed. 292, 26 Sup. nose, and his ears, and his upper lip be cut Ct. Rep. 121, 4 Ann. Cas. 773, that the term, off, or let him be scalped; whichever of "life or limb," in the Constitution of the these those shall counsel whose duty it is United States, has the same meaning as, to counsel thereupon, so that punishment be "no person for the same offense shall be inflicted, and also the soul be preserved.'" twice put in jeopardy of punishment," in In volume 2 of Pollock & Maitland's Histhe act of July 1, 1902, chap. 1369, 32 Stat. tory of English Law, pp. 452, 453, it is said: at L. 691, providing for the rights of per- "When punishment came it was severe. We sons accused of crime in the Philippine Is- read of death inflicted by hanging, beheadlands, and, "jeopardy for the same offense," ing, burning, drowning, stoning, precipitain the New York Constitution. Dissenting tion from rocks; we read of loss of ears, opinions were filed in this case by Mr. Jus-nose, upper lip, hands and feet; we read of tice Harlan and Mr. Justice McKenna, and castration and flogging and sale into in neither of them is a distinction drawn slavery; but the most gruesome and disbetween the phrases. The case of Kepner v.graceful of these torments were reserved for United States, 195 U. S. 100, 49 L. ed. 114, slaves. Germanic law is fond of 'character24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655, in istic' punishments; it likes to take the which dissenting opinions were filed by Mr. tongue of the false accuser and the perJustice Holmes and by Mr. Justice Brown, jurer's right hand. It is humorous; it further emphasizes the fact that that court | knows the use of tar and feathers. But the treats as identical these various constitutional phrases. We therefore conclude that no particular significance is to be given to the term, "life or liberty," in our Constitution, but that it has substantially the same meaning as the various other forms of expression which are contained in other Constitutions and Bills of Rights. worst cruelties belong to the politer time." As the methods of punishment grew less cruel with the development of civilization, the deprivation of limb was abandoned; but the phrase continued to live, with its meaning modified according to the refinements of civilization, so that, in broad terms, the doctrine may be said to mean In the early English law, it was a very that no man who has once been convicted or acquitted of an offense shall again be classes of crime, which gradually became tried or punished for the same offense, and known as felonies, his blood was corrupted, the question for our consideration is the bond between him and his lord was browhether our statute which provides a pen-ken, he forfeited the property, and his blood alty to be recovered in an action by the state, and fine and imprisonment to be recovered in a criminal prosecution, can both be administered without violating this fundamental doctrine. It is impossible to trace the doctrine to any distinct origin. It seems to have been always embedded in the common law of England, as well as in the Roman law, and doubtless in every other system of jurisprudence, and, instead of having a specific origin, it simply always existed. It seems to us to occupy a similar position in the criminal law to that covered by the doctrine of res judicata in the civil law, the one resting on the maxim, Nemo debet bis vexari pro una et cadem causa (Broom, Legal Maxims, 8th ed. p. 327), and the other resting upon the maxim Nemo debet bis puniri pro uno delicto (Broom, Legal Maxims, 8th ed. p. 348). being corrupt, his heirs could not take through it; and the doctrine of corruption of blood continued in England until the inheritance act of 1834, which modified it, and it was abolished in 1870. 3 Holdsworth, History of English Law, pp. 61-64; 2 Pollock & Maitland's History of English Law, p. 466, together with the general discussion of the subject commencing at page 448. We do not know just when this practice originated, but it is apparent from chapter 32 of Magna Charta that it was well established in the law prior to that time, and the only effect of Magna Charta upon the forfeiture was to regulate the division of the real estate as between the King and the feudal lord; that chapter providing: "We will not retain beyond one year and one day the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs." An excellent historical treatment is contained in McKechnie's Magna Charta, discussing this chapter, at pages 394-401. There is no reference in Magna Charta to the subject of former jeopardy. Bearing in mind that the maxim has always been recognized, we may throw some light upon its meaning by an examination of the punishment for crime which coexisted with the maxim from the earliest days in England until 1870, and the effect of a We have therefore two principles of law conviction upon the defendant's property standing side by side in the history of Engrights. Broadly stated, the effect of a con- lish jurisprudence, by one of which a person viction for the felony from the earliest time accused of crime is entitled to the plea of in England was a forfeiture of all of the former jeopardy, or, as it was more usually defendant's property. The rule is stated by expressed in England, autrefois acquit, Stephen (vol. 1, History of the Criminal | or autrefois convict, and the other Law of England, pp. 487, 488) as follows: that the convicted defendant forfeited his "One other consequence of treason and entire estate, both real and personal, because felony remains to be noticed. This is cor- of the conviction. As our doctrine is ruption of blood and forfeiture of property. the doctrine of the common law, it is sigThe effect of corruption of blood was that nificant, in considering the question before descent could not be traced through a per- us, that the punishment for the crime in the son whose blood was corrupted. Also his English law was always accompanied by the real property escheated to the lord of the destruction of the defendant's real estate fee or to the King. The personal property and all his property, and its forfeiture to of a traitor or felon was forfeited, not by the Crown or the feudal lord, and this is a his attainder, but by his conviction. These very persuasive argument that the doctrine incidents of treason and felony have their of former jeopardy has never had any relasource in the feudal theory that property, tion whatever to the protection of a man's especially landed property was held of a property. This position is rendered even superior lord upon the condition of dis- stronger by the fact that corruption of blood charging duties attaching to it, and was and forfeiture of estate were abolished by forfeited by the breach of those conditions. constitutional provisions (art. 2, § 15, of They have no history at all, but prevailed Oklahoma Constitution, and similar provifrom the earliest time till the year 1870, sions in the Constitutions of other states), when they were abolished by 33 & 34 Vict. and it has never been thought that the chap. 23, § 1, except in the case of forfei- former jeopardy provision had the effect of ture consequent upon outlawry.'' abolishing these incidents of conviction for felony. The theory of the law was that all land is held of some lord; that if the tenant died Historically, therefore, and on principle, without heirs, the lord should have back it would seem that this doctrine has no reagain that which he gave to the tenant:lation to a deprivation of property, but only that when the tenant committed certain to such a criminal punishment as might |