64 So. 112 | Ala. | 1913
We appropriate the statement of the facts, disclosing the question, formulated by the Court of Appeals on the appeal to that court; “This Avas an action on a fire insurance policy. The complaint alleged that at the time of the making of the policy sued on, or subsequently and before the time of the trial of this cause, the defendant was a member of or in some Avay connected Avith a tariff association, or such like thing, or that the defendant had made an
Code, § 4057, provides: “Under the provisions of this article [i. e., Examination of Parties by Interrogatories], the party is bound to ansAver all pertinent interrogatories, unless by the ansAver he subjects himself to a criminal prosecution.”
The act approved April'7, 1911 (Acts 1911, pp. 316, 317), amendatory of Code, §§ 4594 and 4595, is as follows :
“Section 1. Be it enacted by the Legislature of Alabama, that sections 4594 and 4595 of the Code of Alabama be amended so as to read as folloAArs: '4594 (2619). Contract of Insurance Made by Company Belonging to Tariff Association Construed to Add TAventy-Five Per
The general purpose of this law and its punitive character was thus stated in Continental Ins. Co. v. Parks, 142 Ala. 650, 39 South. 204: “The manifest purpose of the statute was to prevent monopoly, and to encourage competition. The evil thus intended to be remedied was one violative of public policy as defined by the common law. The statute only imposes a penalty on what was already offensive to public policy. It did not make that which was innocent an offense, but simply provided a punishment for doing that which was already prohibited. In other words, it is a legitimate exercise of the police power of the state.” See, also, Firemen’s Fund Ins. Ca. v. Hellner, 159 Ala. 447, 49 South. 297, 17 Ann. Cas. 793.
The provision of the Constitution of this state (section 6) forbidding compulsory self-incrimination is this: “That in all criminal prosecutions,” the accused “shall not be compelled to give evidence against himself.”
The concrete question is whether to compel the defendant to respond to the matter sought by interrogatory 2 would violate the privilege guaranteed by the or
The phrase “criminal prosecution” (criminal proceedings) was the subject of consideration by this court in Miller v. State, 110 Ala. 69, 86, 87, 20 South. 392, decided in 1896. The proceeding there under view was for bastardy. It ran in the name of the state of Alabama. —Code, § 6370 Bastardy was defined then, as now, in the Criminal Code, and the issuance of a warrant, the arrest, and bail of the accused were - provided for.— Code 1907, § 6364. Upon the adjudication of the paternity of the accused, bond, in an ascertained sum, to support the child is exacted of him in favor of the state. —Code 1907, § 6376. On failure to give the bond exacted, a money judgment is rendered, and the accused is “sentenced to hard labor for the county for one year, unless in the meantime he executed the bond required, or pay the judgment and costs.” — Code 1907, § 6377. Sections 6379 and 6380 provide for discharge from “imprisonment” upon contingencies defined. On the trial of Miller a question arose which required this court to. decide whether the proceeding for bastardy was a criminal prosecution or criminal proceeding. The court stated the concrete inquiry, and determined it to this effect: “During the argument, the solicitor referred to the fact that the defendant, though competent in his own behalf, had refused to testify. The statute declares that in all criminal prosecutions the defendant, at his own request, may be a competent witness, and his failure to testify shall not be the subject of comment by counsel. — Cr. Code 1886, § 4473. A proceeding in bastardy, though penal in its character aoid quasi criminal, is not a criminal prosecution within the meaning of the
The affirmative ruling in Miller’s Case was that a proceeding penal in character and quasi criminal, even though prosecuted by the state’s representative (the solicitor), in the name of the state, and imposing, upon contingencies, hard labor for the county and imprison-men t, was not a criminal prosecution.
In L. & N. R. R. Co. v. Hall, 91 Ala. 112, 118, 119, 8 South. 371, 373 (24 Am. St. Rep. 863)- — decided in 1891 — this court, after stating, as upon authorities cited elsewhere pronouncing the general rule which forbids a discovery from the adversary party “which will expose him to a criminal prosecution, or to a penal reóovery” rested its conclusion upon the language of our statute (now section 4057), thereby necessarily, eliminating, as a basis for invoking the privilege against self-incrimination, a proceeding in which a penal recovery was sought.
The case of Sou. Ry. Co. v. Bush, 122 Ala. 470, 488, 489, 26 South. 168, bears immediately upon the question. There the action was under our “Act to prevent homicides.” — Code 1907, § 2486. The purpose of the act was accurately foreshadowed in the quoted title, “and this it proposed to accomplish by such pecuniary mulct as the jury deem just.” — R. & D. R. R. Co. v. Freeman, 97 Ala. 289, 11 South. 800. The damages allowable are punitive only, not compensatory in any sense — promoting and effecting the punishment of the culpable defendant. — Freeman’s Case, supra, among others. ' ,
This court, as appears from the italicized words in the quotation from the Bush Case, expressly declined to follow and apply the rule prevailing in the Supreme Court, which is that the privilege against self-incrimination embraces all cases where a proceeding, civil or criminal in character, may lead to or invite a penalty or forfeiture to satisfy which the property of the party giving the self-incriminatory evidence may be exacted or his restraint of personal liberty' effected. The rule established by the Bush Case, conformable to the stated doctrine of the Miller and Hall Cases, ante, is that thus accurately expressed in Harger v. Thomas, 44 Pa. 128, 84 Am. Dec. 422: “A criminal prosecution is also defined to ‘be a prosecution in a court of justice, in the name of the government, against one or more individuals accused of crime.’ * * * The issue is between the government and the prisoner on a question of the guilt or innocence of the latter.” This definition of criminal prosecution accords with pertinent statements
If nothing appears to the contrary, words and phrases employed in Constitutions or statutes should be interpreted as having the meaning popular signification accorded to them when appropriated for expression. — Mobile Dry Docks Co. v. Mobile, 146 Ala. 198, 208, 40 South. 205, 3 L. R. A. (N. S.) 822, 9 Ann. Cas. 1229; 8 Cyc. p. 734. And, furthermore, the reordainment, in substantial reproduction, of a provision of the organic law, or such re-enactment of a statute, operates the adoption therewith of the settled construction which the judiciary has placed upon the law. — Morrison v. Stevenson, 69 Ala. 450; Taylor v. State, 131 Ala. 36, Ala. 36, 39, 31 South. 371; Wood Dickerson Co. v. Cocciola, 153 Ala. 555, 45 South. 192; T. C., I. R. Co. v. Roussell, 155 Ala. 435, 46 South. 866, 130 Am. St. Rep. 56.
According to interpretation of the pertinent provision of the organic law taken in Bush’s Case, ante, its reordainment in the Constitution of 1901 invoked the application of the rule last stated. And this view is further supported by this court’s interpretation of
The Bush Base and that at bar are not, in our opinion, susceptible of being soundly distinguished. In each a pecuniary' penalty is the law’s imposition. In the former the jury fixes the amount with a view to graduating the punishment. In the latter the amount is conditionally stipulated in the statute, though the penalty may be wholly averted by a satisfaction of the assured within a definite period. In neither instance does the recovery go to the state or any governmental authority. In neither is the means afforded to enforce the penalty that with which all are familiar in the prosecution of criminal offenders in this state. The remedy is civil, -in essence and form, in each instance. While the form or character of the remedy for enforcement may not be controlling, it is an important factor in determining whether the proceeding is a criminal prosecution under our laws. — Strickland v. Bartow, 27 Mich. 68; State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 418, 87 Am. St. Rep. 449.
The action instituted and prosecuted for the recovery of the penalty allowed by the act of 1911 not being a criminal prosecution within the provisions of our Constitution or the statute (Code, § 4057), as the trial court ruled, the defendant company could not invoke the privilege against compulsory self-incrimination.
The judgment of the Court of Appeals reversing the trial court in this particular is therefore reversed.