Const. Vt. c. 2, § 32, requiring all fines to be proportioned to the offense.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3304-3309, 3274; Dec. Dig. 1213, 1214.*]

4. CONSTITUTIONAL LAW (§ 270*)-DUE PRO

CESS OF LAW-EXCESSIVE FINES.

The statutes did not impose fines so grossly excessive as to amount to a deprivation of property without due process of law, contrary to Const. U. S. Amend. 14.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 758; Dec. Dig. § 270.*] 5. CONSTITUTIONAL LAW (§ 250*) EQUAL PROTECTION OF LAWS.

The statutes did not deprive one convicted and punished thereunder of the equal protection

of the laws.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 711-713; Dec. Dig. § 250.*]

6. CRIMINAL LAW (§§ 1213, 1214*)-EXCESSIVE
FINES CRUEL AND UNUSUAL PUNISHMENT
-APPLICATION OF CONSTITUTIONAL PROVI-
SIONS APPLICATION TO STATE.

Const. U. S. Amend. 8, forbidding excessive fines and cruel and unusual punishment, does not apply to the state governments, nor did the adoption of the fourteenth amendment thereto make article 8 applicable to state governments.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3304-3309; Dec. Dig. §§ 1213,

1214.*]

7. CRIMINAL LAW (§§ 1213, 1214*)-EXCESSIVE FINES CRUEL AND UNUSUAL PUNISHMENT -PROVISIONS OF STATE CONSTITUTION.

HASELTON, J. The respondent, a corporation, was the holder of a liquor license of the "fourth class"; that is, it was licensed to sell intoxicating liquor at wholesale. While holding such license, it made a sale of certain cordials that were intoxicating liquor, of which it had furnished no samples to the Secretary of State for inspection, as it was required to do under the provisions of sections 5131 and 5132 of the Public Statutes. P. S. 5141, provides that a licensee of the fourth class who sells any liquor of a quality other than that of a sample furnished to the Secretary of State for inspection shall be fined for the first offense $200, and for each subsequent offense $500. The respondent was prosecuted under this section. The facts above stated were agreed upon, and the respondent was adjudged guilty, and was sentenced to pay a fine of $200, together with the cost of prosecution. "The respondent," to quote here from the bill of exceptions, "objected and excepted to the rendition of said judgment and imposition of sentence thereon on the ground that the several statutes prescribing the penalties and forfeitures for the offense alleged in the information are unconstitutional and void under the Constitution of the United States and of the state of Vermont, in that the penalties and forfeitures so prescribed are not proportioned to the offense, but are excessive, cruel, and unusual, contrary to the eighth and fourteenth amendments to the Constitution of the United States, and section 32 of chapter 2 of the Constitution of Vermont; and upon the further ground that said several statutes deprive the respondent of property without due process of law, and deny it the equal protection of the laws, in violation of the fourteenth amendment of the Constitution of the United States." The sections of the Public Statutes directly referred to in this exception are 5141, under which the respondent was convicted and fined, 5143, 5144, 5117, 5128, and 5131. The provisions of 5141, so far as they are relevant to this case, have been sufficiently stated. Section 5128 fixes the fee for a license of the fourth class at $750. Section 5143 provides that, if a licensee of the fourth class is found guilty of the offense of which the respondent was convicted, the Attorney General shall notify the Secretary of State of such conviction, and that the Secretary of State shall forthwith revoke the license. Section 5121, as construed by the respondent, disqualifies one whose license has been so revoked from thereafter holding a license. Sections 5117 and 5131, taken together, provide for the giving of a bond to the state by a licensee of the fourth class Argued before ROWELL, C. J., and MUN-in the sum of $3,000. These sections will SON, WATSON, and HASELTON, JJ.

Bill of Rights, art. 18. requiring legislators and magistrates to give a constant regard and firm adherence to the fundamental principles of justice and moderation in enacting and executing the laws, in effect guaranties to the people protection against excessive fines, and cruel and unusual punishment.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3304-3309; Dec. Dig. §§ 1213, 1214.*]

8. INTOXICATING LIQUORS (§ 86*)-OFFENSESPUNISHMENT-LIABILITY ON BOND-WILL

FUL."

P. S. 5131, requires fourth-class liquor licensees authorized to sell at wholesale to give a bond in form, so far as applicable, to that required by section 5117 of retail licensees, and the bond required by that section provides that the obligor shall become liable to the penalty prescribed if the principal "shall willfully violate any of the conditions or prohibitions" of the license. Held, that the bond was not forfeited unless there was an intentional violation of the act by the licensee, even though he might be convicted and fined for violating some provision of the act; the word “willful" meaning intentionally and by design.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 89; Dec. Dig. § 86.*

For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481; vol. 8, pp. 7835, 7836.]

Exceptions from Chittenden County Court; George M. Powers, Judge.

The Burlington Drug Company was convicted of illegally selling intoxicants, and it excepts. Exceptions overruled.

Henry B. Shaw, State's Atty., for the State. Darling & Mower, for respondent.

be further commented on. Section 5144 provides, among other things, that upon the conviction of a licensee of the fourth class

of the offense of which the respondent was convicted the Attorney General shall at once proceed to collect the amount of the bond from the securities of the licensee. The respondent does not contend that the section under which the respondent was convicted is unconstitutional considered by itself and without reference to the other sections above referred to; but it contends that these other sections are intended to act automatically upon a conviction such as was had here, and that all the sections referred to must be construed together in determining the penalty prescribed for the offense, and that, when so considered, the aggregate penalty is disproportionate to the offense, and so disproportionate as to render the statutory provisions in question void on the ground of conflict both with the Constitution of this state and that of the United States.

subject to revocation in consequence of a disregard of such restrictions, or in consequence of a charge of policy on the part of the government in respect to the exercise of the police power. State v. Gibbs, 82 Vt. 526, 74 Atl. 229, 24 L. R. A. (N. S.) 555. We do not think that the fine provided by statute for the offense of which the respondent was convicted, and the revocation of the license, treating it as an incident to the conviction, when considered together and treated as inseparable, contravene any provision of our state Constitution or of the federal Constitution.

by the eighth was interposed against the state government. See dissenting opinions in O'Neil v. Vermont, 144 U. S. 323, 337, 366, 371, 12 Sup. Ct. 693, 36 L. Ed. 450. But this view did not prevail in the case just cited, and has not since been recognized. Jack v. Kansas, 199 U. S. 372, 26 Sup. Ct. 73, 50 L. Ed. 234; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; State v.

vision of our state Constitution to which we

The questions which arise in connection with the forfeiture of the bond of $3,000 are the ones to which the arguments of counsel have been chiefly directed. The provision of article 8, in amendment of the federal Constitution, forbidding excessive fines and cruel The claim that the conviction of the re- and unusual punishments, was not directed spondent disqualifies it from hereafter hold- to, and does not operate upon, the state gov ing a license is ill grounded. P. S. 5121, un-ernment. Pervear v. Commonwealth, 5 Wall. der which the claim is made, relates wholly 475, 18 L. Ed. 608. After the adoption of to licenses by the board of license commis- the fourteenth amendment, the view was sioners of the several towns. It provides taken by Justices Harlan and Field, and perthat no license shall be granted to a person haps by Mr. Justice Brewer, that by virtue not a voter of the town, nor to a person of that amendment the protection guaranteed under 25 years of age, nor to a person whose license in a town has been revoked. No. 145 of the Acts of 1906, which did not take effect until March 1, 1907, provided that licenses of the fourth class, licenses to sell at wholesale, should be granted not by the license commissioners of the town, but by the Secretary of State; and it provided that such licenses might be granted to citizens, or corporations, of this state, or of any oth-Hodgson, 66 Vt. 134, 28 Atl. 1089. The proer state, or of any other country. It provid- have been particularly referred is that "all ed that all fees for such licenses should be fines shall be proportioned to the offenses.” payable to the state, that the number of Historically the provision of the federal Conlicenses which might be granted in a town stitution has regard to the language of the should not be affected by the residence there- Bill of Rights of 1689, while the provision in of licensees of the fourth class. It pro- of our Constitution respecting disproportionvided penalties for illegal acts by such li- ate fines reflects rather the language of chapcensees not corresponding to the penalties ter 14 of Magna Charta, where it is said under the general liquor law. Various pro- that for a small offense a freeman shall not visions applicable to other licensees are not be amerced otherwise than according to the applicable to those holding a license to sell measure of such offense and for a great of only at wholesale to retail dealers; and, fense according to the magnitude thereof, while the law provides that a license of the and where it is said of earls and barons fourth class shall be revoked and the un- that they shall not be amerced except after used portion of the license fee shall be for- the manner of their offenses, and that no ecfeited upon the conviction of the holder of clesiastic person shall be amerced except in the license of the offense of which the re- accordance with the degree of his offense. spondent was convicted, it stops short of See 1 Runnington's Ruffhead's Statutes at providing that such licensee shall be dis- Large. Nathaniel Chipman, writing in 1792, qualified from thereafter holding a license. says that the word "fines" as used in the The whole situation is made clear when No. constitutional provision now under consid145. Acts 1906, which relates wholly to li-eration is not to be understood of pecuniary censes of the fourth class, is read by itself. mulets only, but that it is to be taken as The revocation of the license without a re- synonymous with "punishments." N. Chippayment to the licensee of any portion of man, Reports and Dissertations, 134. This the sum paid by him for the license infringes is said not in an opinion, but in one of the no constitutional right, for the license is dissertations; but, in view of the influence not a contract but a permit to sell subject of Nathaniel Chipman in the establishment

just referred to, might well be taken as an Constitutions, pp. 3158, 3162, 3165, 3166, 3167. authoritative contemporaneous exposition of The Philippine commissioners undertook to the meaning of the constitutional provision confirm as the law of those islands some of to which it relates. While the provision sug- the provisions of the Penal Code of Spain. gests the immunities of the Great Charter, It was provided that for the offense of makits language seems due rather to the influ- ing a false entry in an official document the ence of Beccaria, whose treatise on Crimes offender should suffer "cadena temporal" for and Punishments was translated into Eng- a period of from 12 years and a day to 20 lish in 1768, and was read with avidity by years. To be "en la cadena" means imprislawyers and jurists everywhere in the lat-onment and something more. Escriche, Dicter part of the eighteenth century and the cionario de Legislacion y Juprisprudencia, earlier part of the nineteenth. This is no art. "Cadena." In the Penal Code of the fanciful conjecture, for in discussing the sub- islands it means imprisonment at hard and ject of penal laws Chipman acknowledges painful labor, with a chain always attachthe influence of the Italian writer, quotes ed to the ankle and the wrist, and the denial from his work, and says in precise terms: of any assistance from without the penal "The world is more indebted to the Marquis Beccaria for his little Treatise on Crimes and Punishments than to all other writers on the subject." Chip. Princip. Gov't, p. 214. But, if it is not warrantable to say that the word "fines" in our Constitution refers to all punishments whether by fine or imprisonment or forfeiture or disqualification, still our Bill of Rights is not behind any in its assertion of the fundamental principles of free government, and the prohibition of excessive fines and cruel and unusual punishments is, in effect, found in article 18 of the Bill of Rights, which exacts from legislators and magistrates a constant regard and a firm adherence to the fundamental principles of justice and moderation in the making and in the execution of laws.

institution. Certain other penalties called "accessories" are imposed upon one who is sentenced to "cadena temporal." There are civil interdictions during the term of imprisonment, surveillance on the part of the authorities throughout life, and perpetual and absolute disqualification to vote, to hold office, or to acquire honors. Weems was sentenced to 15 years of "cadena" with the "accessories," and to pay a fine, and his sentence was affirmed by the Supreme Court of the islands. In the Supreme Court of the United States it was held that the prohibition of cruel and unusual punishments incorporated into the fundamental law of the islands must be given the same meaning as it has in the Constitution of the United States from which it was taken, and that The framers of our Constitution consid- the provision of the Penal Code of the isered, as did the English Parliament in 1689, lands under which Weems was sentenced that protection against excessive fines and was repugnant to the fundamental law escruel and unusual punishments was one of tablished there. As was natural, such a conthe "true, ancient and indubitable rights clusion was not reached without full and and liberties of the people," and that it thorough examination of the question involvshould so "be esteemed, allowed, adjudged, ed and of the authorities bearing upon it, deemed, and taken to be." 1 William & and so a reference to that case, to the opinMary, Sess. 2, c. 2, §§ 1, 6. Therefore, when ion of the court, the dissenting opinion, a our Constitution declares that the funda- marginal collection of authorities, and the mental principles of justice and moderation abstracts of the briefs, is, in effect, a refershall be constantly regarded and adhered to ence to substantially the whole body of deby legislators and magistrates, it asserts the cisions upon the question of what are exright of the people to protection against ex- cessive fines and cruel and unusual punishcessive fines and cruel and unusual punish-ments, which, as we have seen, are obnoxments as emphatically as it could have done ious to our state Constitution. However, the by less comprehensive words. Hence deci- special pertinence of the Weems Case to that sions construing constitutional provisions ex- under consideration lies in the fact distinctpressly prohibiting cruel and unusual pun-ly pointed out in a dissenting opinion by Mr. ishments are in point in this discussion, and Justice White, the present Chief Justice, a recent decision of the Supreme Court of the United States dealing with the matter with great thoroughness and with reference to numerous cases cannot be overlooked. We refer to Weems v. United States, 217 U. S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793, a case which arose in the Philippine Islands. By the instructions of the President to the commissioners to those islands and afterwards by an act of Congress, there was established for the guidance of the government there a Bill of Rights which contained a provision prohibiting excessive fines and cruel and un

that the majority of the court clearly treat the "accessories" provided for in the law and in the sentence as not separable from the main punishment, while Mr. Justice White and Mr. Justice Holmes held that, upon the assumption that the law and the sentence thereunder were in part illegal, the illegal was "capable of separation from the legal in the law as well as in the sentence," and that the illegal might be disregarded and the constitutionality of the remaining part upheld. There the so-called “accessories” were much more closely united with the main pun

for the prosecution of the bond with the pro- Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. vision for a fine, and, upon an examination (N. S.) 786; State v. Tomasi, 67 Vt. 312, 31 of the provisions of law applicable to the Atl. 780; State v. Perkins, 42 Vt. 399. Therebond, we think they are of such a character fore, since the bond provided by statute can that it is not necessary to consider the con- be forfeited only in consequence of a willful stitutional question raised so far as it is violation of some provision of the law to based upon the theory that the fine and for- which licensees are amenable, the forfeiture feiture constitute one indivisible penalty. of the bond cannot be said to follow autoThe bond required to be given by wholesale matically upon a conviction for such an oflicensees is in form, so far as applicable, the fense. Here the offense of which the resame as the bond required of retail licensees. spondent was convicted was not that of sellP. S. 5131. A statutory form for this bond ing adulterated liquor, or of selling to any is given in P. S. 5117, and this bond does one to whom it was forbidden to sell, but of not render obligors liable merely upon a con- selling to a retailer certain cordials of which viction of the principal of an offense under it had not submitted pint samples to the Secthe law regulating the traffic in intoxicating retary of State for examination. It may liquors, but the provision is that the obligors well be that this failure grew out of a misshall become liable to the penalty of the understanding on the part of the respondent bond if the principle “shall willfully violate of its duty in respect to these cordials, put any of the conditions or prohibitions" of the up and sold as it is, is not unlikely that they license. This bond is not forfeited by a were, and that so, or for some other reason, mere violation of some provision of the law its violation of the regulation referred to to which the licensee is amenable, nor neces- was not willful. That question is not now sarily by a conviction of some such viola- before us. We intimate nothing as to the tion, for we take it that the statute means conclusion which we should reach if the forwhat it says and that the word "willfully" | feiture of the bond followed automatically is to be given some force, and that a licensee upon a conviction, nor as to what views we may become liable to a fine for some act or might entertain of the constitutional quesomission and yet his conduct fall short of tion in an action upon the bond, nor as to being willful. The word "willful," though whether in such action the state, if it pregiven different definitions under different cir- vails, is entitled as of right to the full pencumstances, cannot well mean less than in- alty of the bond. tentionally and by design. Town of Fletcher v. Kezer, 73 Vt. 70, 50 Atl. 558; Newel v. Whitingham, 58 Vt. 341, 2 Atl. 172; Savage v. Tullar, Brayton, 223; Buchanan v. Cook, 70 Vt. 168, 40 Atl. 102. In the case last cited, which is a tax case, reference is made to the learning in respect to the words "willful" and "willfully," as used in statutes, and to the darker shade of meaning which they commonly have in penal statutes. So the Supreme Court of the United States has held that, where a statute imposes a penalty upon one who shall willfully violate a provision of law, the word "willful" is to be given meaning and force, that it implies "a purpose to do wrong," "a determination with a bad intent" to do, or to omit the doing of some thing, the doing of something with an "evil design" or with a "bad purpose." Spurr v. United States, 174 U. S. 728, 19 Sup. Ct. 812, 43 L. Ed. 1150; Potter v. United States, 155 U. S. 438, 446, 15 Sup. Ct. 144, 39 L. Ed. 214; Evans v. United States, 153 U. S. 584, 594. 14 Sup. Ct. 934, 38 L. Ed. 830; Felton v. United States, 96 U. S. 699, 702, 24 L. Ed. 875. The cases above cited fairly indicate the usual import of the words "willful" and "willfully" when used with reference to violations of the criminal law.

The offense of which the respondent was convicted was a violation of one of those police regulations of which one may be held guilty without reference to his "willfulness" in the natural sense of the word. State v.

The other constitutional questions will be briefly disposed of. While the eighth amendment to the federal Constitution does not operate upon the states, the Supreme Court of the United States now seems to recognize the doctrine that fines may be so grossly excessive as to amount to a deprivation of property without due process of law in violation of the fourteenth amendment. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86. 111, 29 Sup. Ct. 220, 53 L. Ed. 417. But what we have already said meets any contention that is made, or that might be made, in this regard.

The remaining constitutional question ra ie ed, but not discussed, is that the respondent has been denied the equal protection of the laws. But this claim is without foundation.

Judgment that there is no error in the proceedings and that the respondent takes nothing by its exceptions. Let execution be done.

JENNESS v. SIMPSON. (Supreme Court of Vermont. Orleans. Jan. 9, 1911.)

1. JUDGMENT (§ 211*)-TIME FOR RENDITION. Where the court, on motion to set aside a verdict on the ground that it was excessive, directed that, if defendant paid to the clerk a specified sum within a specified time, plaintiff should remit the balance of the verdict or the verdict should be set aside, but, if defendant failed to pay the sum within the time limited,

judgment on the verdict should be rendered, de- [7. CONTRACTS (§ 328*)-CONTRACT FOR BENEfendant had the whole of the specified time in which to pay the specified amount, and judgment on the verdict on the last day of the specified time was violative of the order and premature, and the judgment was irregular, though not void, and will be reversed or set aside.

2. APPEAL AND ERROR (§ 267*)-QUESTIONS 8. CONTRACTS (§ 328*)-CONTRACTS FOR BENEREVIEWABLE-EXCEPTIONS.