On the 28th day of May, 1953, the defendant Walter Pirkey was charged by an indictment of the grand jury with the crime of drawing a bank check with insufficient funds in the bank with which to pay the check in full. The indictment specified that the defendant drew the check unlawfully and feloniously with intent to defraud. The date of the alleged crime was 9 April 1953. The indictment was drawn under and pursuant *699 to the provisions of Oregon Laws 1949, Chapter 129, Section 1, which reads as follows:
“Any person who, for himself or as the agent or representative of another, or as an officer, agent or employe of a corporation, and on behalf thereof, shall wilfully, with intent to defraud, malm or draw, or utter or deliver any cheek, draft or order upon any bank or other depository, for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer, or his principal, or the corporation, has not sufficient funds in, or credit with said bank or other depository for the payment of such check, draft or order, in full upon its presentation, although no express representation is made that there are sufficient funds in or credit with such bank or other depository for its payment in full upon presentation, shall be guilty of a crime and may be proceeded against either as for a misdemeanor or as for a felony, in the discretion of the grand jury or the magistrate to whom complaint is made, or before whom the action is tried, as the case may be; and upon conviction thereof, if proceeded against as for or convicted of a misdemeanor, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not to exceed one thousand dollars ($1,000), or by both such fine and imprisonment, or, if proceeded against as for and convicted of a felony, shall be punished by imprisonment in the penitentiary for not more than five years. If a person be proceeded against hereunder as for a misdemeanor, justice’s courts, district courts and circuit courts shall have concurrent jurisdiction of such crime.”
This statute has been carried forward into the Oregon Eevised Statutes and now appears as OES 165.225. However, a comparison of the 1949 statute, quoted supra, with the provisions of OES 165.225, indicates that certain changes have been made in the Eevised *700 Statutes, which may, perhaps, involve a substantial change in the statute. The offense charged occurred prior to the adoption of Oregon Revised Statutes and we therefore have no occasion to construe the provisions of ORS 165.225. Our concern is with provisions of the 1949 law.
The brief of counsel for the State of Oregon inadvertently sets forth the statute as it appears in Oregon Revised Statutes, rather than in the 1949 session laws. To this indictment the defendant filed a demurrer
“upon the ground and for the reason that said indictment, being based under Chapter 129, Oregon Laws 1949, fails to state facts sufficient to charge a crime, the said Chapter 129 being invalid and unconstitutional in its provisions as violating the provisions of the Constitution of the State of Oregon and of the United States of America, with reference to due process and equal protection of the laws and being so indefinite and uncertain in the penal provisions thereof as between committing' magistrate, presiding judge and grand jury as to be void for such indefiniteness and uncertainty and such provision being an unconstitutional and invalid delegation of authority to a grand jury and committing magistrate. ’ ’
The demurrer was sustained by the trial court and the indictment was dismissed. The State of Oregon appeals.
The first part of the statute under which the indictment was brought clearly defines with sufficient definiteness the specific acts which are purportedly made punishable by that statute. The portion of the statute against which the attack is made is that which provides that when a person has done the specific act or acts prohibited by statute, he may be proceeded against either as for a misdemeanor or as for a felony in the discretion of the grand jury or the magistrate to *701 whom complaint is made or before whom the action is tried.
We shall first assay the difficult task of determining the legislative intent from the words of the statute. In all criminal prosecutions the accused shall have the right “to demand the nature and cause of the accusation against him * * *.” Oregon Constitution, Article I, Section 11. Under the statute the accused is to be “proceeded against”, either by indictment or by information. In either ease the charge contained in such instrument must specify the nature of the accusation. An accusation of a felony surely differs in nature from an accusation for a misdemeanor. Therefore we conclude that the charge upon which the defendant is to be tried must specify whether he is accused of committing a misdemeanor or a felony. We must therefore assume that the “discretion” is vested only in the person or persons who present the charge upon which the defendant is to be tried.
The question for determination is the constitutionality of the statute. The prosecution urges upon our consideration the general rule that statutes are presumed to be constitutional and will be invalid only if the unconstitutionality appears beyond a reasonable doubt.
State v. Anthony,
We have held that it is unnecessary to employ the word “feloniously” in an indictment if the acts charged therein sufficiently show the commission of a felony.
State v. Ede,
The provisions of the Equal Protection Clause of the Fourteenth Amendment apply as limitations upon all instrumentalities through which the state acts.
*703
12 Am Jur 137, Constitutional Law, § 473. In the first instance of course, it applies to the legislative department. The Equal Protection Clause of the Fourteenth Amendment, and Article I, Section 20 of the Oregon Constitution are alike in that they constitute similar limitations upon legislative action for the protection of the individual from arbitrary or capricious legislation.
Phillips v. City of Bend,
In an exhaustive and scholarly opinion of this court, by Mr. Justice Eossman, it was said:
“A class of persons may be singled out and special burdens may be placed upon it, provided the class manifests characteristics which to a real and substantial extent distinguish it from all other persons and justify the imposition of the burden. * * *” Namba et al. v. McCourt and Neuner,185 Or 579 , 612,204 P2d 569 .
The Fourteenth Amendment operates to forbid discrimination by the states against persons or classes in criminal cases.
Ughbanks v. Armstrong,
The statute in question here defines and prohibits a specific act and provides punishment therefor, but there is no semblance of a classification which would enable one to ascertain under what circumstances he may be guilty of a felonious crime, or under what circumstances he may be guilty only of a misdemeanor. So far as the statute is concerned, the same identical act, under the same circumstances, may constitute a *705 felonious crime when committed by one person, and a misdemeanor when committed by another. It might be said that this statute classifies punishments, but does not classify the circumstances to which the diverse punishments are to be applied. This is not legal classification. It is legal chaos. The Oregon Constitution provides that “all penalties shall be proportioned to the offense. * * *” Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.
Since the provision for punishment constitutes one element in the definition of a crime, it would appear that this statute, in effect, defines two crimes as a matter of substantive law; one a felony, and the other a misdemeanor. And since the statute itself furnishes no criterion by which to determine when an accused is to be charged with felony, and when with a misdemeanor, the statute, at least insofar as it provides for alternative charges, must be void by reason of constitutional mandate, unless a criterion not set forth in the statute can be implied therefrom, and unless the power to apply it can be delegated to the grand jury or magistrate. But how can we establish any such criterion? How large must an n.s.f. check be to require a charge of felony? How young or how old may an offender be to warrant a charge of misdemeanor only? Should the grand jury consider the education and experience of the accused, or his previous record, or his poverty or wealth? We find no answer to these and to a multitude of other questions. But we have yet to comment on the outrageous effect of granting this power of choice to a *706 grand jury or magistrate. Under onr law, “The grand jury ought to find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” OBS 132.390. Furthermore, it is not bound to hear any evidence for the defendant. OBS 132.320 (2). It would be monstrous to uphold and enforce a statute which authorized a grand jury or magistrate to determine finally whether an accused should receive a fine or a jail sentence, on the one hand, or a penitentiary sentence, on the other, and to make that decision before trial, without having heard any evidence for the defendant, either on the issue of guilt or of mitigation, and on the sole basis of a prima facie case made against one still presumed to be innocent. The enforcement of such a law would enable a grand jury or magistrate to determine in advance whether a guilty party on conviction was or was not subject to a divorce suit by his wife. OBS 107.030 (3), and whether prosecution was barred after two years or after three years. OBS 131.110. We see in this statute no provision whereby one charged with a misdemeanor could be sentenced as for a felony, however heinous the offense might after trial appear to have been. Again, if the defendant is proceeded against as for and convicted of a felony, there is no provision authorizing the court in its informed discretion to impose punishment as for a misdemeanor, however strong the evidence in mitigation might be. In our opinion, such a statute so construed would not only violate the Equal Protection Clause and constitute an unauthorized delegation of discretionary power, but it would constitute an invalid encroachment upon the function of the courts whose prerogative and duty it is to determine, not only guilt, but punishment, upon judicial inquiry, after public trial *707 and within the maximum and minimum limits prescribed by the legislature.
The following authorities sustain our conclusion that the attempted delegation to grand jury or magistrate of power to determine in advance whether to charge the defendant with a felony or with a misdemeanor for doing the prohibited act, is invalid:
The People v. Federal Surety Co.,
336 Ill 472,
The prosecution cites
Ex parte Gough,
112 Cal App 218,
We hold that the provision of the statute which purports to vest in a grand jury or magistrate the unguided and untrammeled discretion to determine whether a defendant shall be charged with a felony or a misdemeanor, is unconstitutional. We are unanimously of the opinion that the judgment of the circuit court in dismissing the felony indictment should be affirmed. We express no opinion as to whether any portion of the 1949 act is separable, and we express no opinion as to the effect of the change in the wording of the 1949 act as it now appears in OES 165.225. Under these circumstances it is apparent that legislative consideration of the entire problem is indicated.
The judgment of the circuit court in dismissing the indictment is affirmed.