ton v. Rugg, 149 Mass. 550, 553, 22 N. E. 55, 5 L.R.A. 193, 14 Am. St. 446. So also, in State v. Murphy, 71 Vt. 127, 136, 41 Atl. 1037, 1038, the court said: "The respondent contends that the statute is in conflict with the provisions of the constitution of the state, particularly Article X of the declaration of rights, which provides, 'That in all prosecutions for criminal offenses, a person hath a right to public trial by an impartial jury of his country; * * * * * * a speedy nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers.' This claim is made, disregarding the distinction between a proceeding to abate a nuisance, which relates simply to the property which in its use constitutes the nuisance, and a prosecution of the respondent for the crime of maintaining it." And in Mugler v. Kansas, 123 U. S. 623, 670, 8 Sup. Ct. 273, 302, 31 L. ed. 205, Mr. Justice Harlan said: "The state having authority to prohibit the manufacture and sale of intoxicating liquors for other than medical, scientific, and mechanical purposes, we do not doubt her power to declare that any place, kept and maintained for the illegal manufacture and sale of such liquors, shall be deemed a common nuisance, and be abated, and, at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for forbidden purposes, while the other is for the punishment of the offender." See, also, State v. Saunders, 66 N. H. 39, 25 Atl. 588, 18 L.R.A. 646, where the earlier cases are exhaustively reviewed, and State v. Marshall, 100 Miss. 626, 56 South. 792, Ann. Cas. 1914A, 434. Defendants attack particularly the three hundred dollar penalty imposed by section 8, on the ground stated, insisting that penalties are regarded as punishments for infractions of law, and statutes imposing them as penal. But, in considering this section, and all others, we are bound to hold that if the language used is reasonably susceptible of two constructions, one rendering the enactment con stitutional, and the other not, the former must be adopted, though the latter be the more natural. 3 Dunnell, Minn. Dig. § 8931. While the act designates the three hundred dollar exaction as a "penalty," the same section clearly indicates it is to be imposed, treated and collected as a tax. There is no magic in words, and the use of "penalty" is not decisive. Terminology is not necessarily decisive, and the legislature might well have been in doubt as to the appropriate word with which to designate the exaction. After all, the legislative intent is what we seek, and the nature of the thing is more important than its name. In Hodge v. Muscatine. County, 196 U. S. 276, 25 Sup. Ct. 237, 49 L. ed. 477, the court had under consideration the Iowa cigarette law, whereby a tax of three hundred dollars per annum was assessed "against every perand upon the real property, and the owner thereof," whereon cigarettes, etc., were sold, or kept with intent to sell, the same to be a perpetual lien upon both personal and real property used in connection with the business. The supreme court of Iowa sustained the law (Hodge v. Muscatine County, 121 Iowa, 482, 488, 96 N. W. 968, 970, 67 L.R.A. 624, 104 Am. St. 304), observing in the course of its opinion: son * * * * "It (the three hundred dollars) is manifestly a tax upon the traffic which the legislature saw fit to impose, not for the purpose of giving countenance to the business, but as a deterrent against engaging therein. Indeed, we think it may fairly be said to be a tax upon the business. That a tax is imposed for the double purpose of regulation and revenue is no reason for declaiming it invalid." The Supreme Court of the United States approved this holding, saying, [196 U. S. page 279, 25 Sup. Ct. 239, 49 L. ed. 477]: "It is not easy to draw an exact line of demarcation between a tax and a penalty, but in view of the fact that the statute denominates the assessment a 'tax,' and provides proceedings appropriate for the collection of a tax, but not for the enforcement of a penalty, and does not contemplate a criminal prosecution, we cannot go far afield in treating it as a tax rather than a penalty. * * The act itself provides in terms that such tax shall be in addition to all other taxes and penalties, and elaborate provision is made for its enforcement. The mere fact that the charge, whatever it may be, is made a lien upon the real estate and a personal claim against the landlord indicates that it is in the nature of a tax rather than a penalty." We consider this case in point and follow its lead, being impelled to such course both by reason and by the authoritative pronouncement of the Federal Supreme Court upon an exaction to which the assessment imposed by section 8 is closely analogous in so many of its essential features, including failure to provide proceedings appropriate for the enforcement of a penalty, particularly in that no punishment is imposed for nonpayment of the assessment. The act as a whole differs in no material respect from the numerous statutes regulating liquor traffic by equitable actions for injunction and abatement, universally held valid notwithstanding denial of jury trial thereunder. We hold it not penal, which disposes of defendants' main contention regarding right to trial by jury, and likewise of their points based upon the constitutional provisions relating to excessive fines and unusual punishments, the right to be confronted by witnesses, testifying against one's self, bills of attainder, and ex post facto laws. As to their claim of right to jury trial, even if the action be held civil in all its details, it is sufficient to say that in its main features the proceeding is unquestionably equitable, and that when a court of equity properly assumes jurisdiction of a cause for one purpose it acquires it for all and grants full relief. 1 Dunnell, Minn. Dig. § 3138; 1 Pomeroy, Eq. § 237; State v. Marshall, supra. 3. It is claimed that section 7 violates Const. art. 1, § 8, providing that every person "ought to obtain justice freely and without purchase," etc., in that the right of the orner of the premises to appear for the purpose of obtaining the release of his property, is unduly fettered by imposition of conditions as to giving of bond and payment of costs. We are not now required to determine the validity of this part of the section. It relates merely to a collateral matter, and, if void, would not affect the other provisions. It is unnecessarily drastic, and probably invalid. See Doherty v. Ryan, 123 Minn. 471, 144 N. W. 140. 4. Defendants invoke article 1, section 7, of the Constitution, which provides that no person shall be deprived of life, liberty, or property, without due process of law, and section 11, providing that no conviction shall work forfeiture of estate. It is not necessary to consider the latter; for, as we have seen, proceedings under the act are not criminal, and it is settled that by due process of law specific forfeitures may be imposed for specific acts, including even total destruction of property per se innocent, when such fairly tends and is reasonably necessary to accomplish a legitimate purpose under the police power. Daniels v. Homer, 139 N. C. 219, 51 S. E. 992, 3 L.R.A.(N.S.) 997, and note. See, also, Patsone v. Pennsylvania, 232 U. S. 138, 34 Sup. Ct. 281, 58 L. ed. 539. As to due process of law, defendants claim that summary forfeitures are imposed without sufficient notice and hearing. We do not, however, so construe the act. It prescribes notice to everyone and makes provision for a full hearing before final judgment upon and disposition of the matters involved; nor does it authorize relief against anyone not proved to be a participant, either active or by consent or acquiescence. The provision of section 5, making lack of reasonable care or diligence equivalent to notice of the uses to which the property is being put, does not negative this conclusion, for ignorance due to negligence is the equivalent of notice. Furthermore, the owner of property is presumed to know the business conducted thereon. Hodge v. Muscatine County, supra. 5. Finally, is the act in its remedial details a proper exercise of police power? The subject-matter being within such power, the test is reasonableness, which involves a dual limitation, positive and negative, namely, adaptability to the end sought and absence of excessiveness the measure must, on the one hand, tend to accomplish the purpose of its adoption, and, on the other, must not go beyond the reasonable demands of the occasion. In our opinion the remedies provided by the act stand the test. "A large discretion is necessarily vested in the legislature, to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests." State v. Wagener, 77 Minn. 483, 495, 80 N. W. 633, 635, 46 L.R.A. 442, 77 Am. St. 681. Upon all points involved in the cases before us, the act is sustained as constitutional. The objections based upon the effect accorded evidence of the general reputation of the place in establishing the existence of the nuisance, etc., and the presumptions declared in section 5, more properly belong to the discussion in State v. New England F. & C. Co. supra, page 78, 147 N. W. 951. Judgments reversed in so far as they fail to award plaintiffs, as against the answering defendants, the additional relief prayed; and the trial court is directed to proceed in accordance with this opinion. W. D. LOVELL v. VILLAGE OF ST. CLAIR.1 June 12, 1914. Nos. 18,730-(135). Dismissal of action. Upon the record it is held that the case was properly on the calendar and was properly dismissed for want of prosecution. Action in the district court for Waseca county. The motion of defendant to dismiss the action for want of prosecution was granted, Childress, J. From the judgment entered pursuant to the order, plaintiff appealed. Affirmed. B. H. Bowler, for appellant. A. R. Pfau, Jr., and C. J. Laurisch, for respondent. DIBELL, C. This is an action to recover something like $3,000 for the con1 Reported in 147 N. W. 822. |