Joseph McKenna

“ In other words, plaintiffs in error cannot base a defense 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 state of Minnesota should proceed criminally against plaintiffs in error. ”

“ The statute makes one who cuts or removes timber contrary to the provisions of the act, or 'without conforming in each and every respect thereto,' guilty of a felony, and prescribes a fine or imprisonment, or both, in case the trespass is adjudged to have been wilful. To avail themselves of an objection to these provisions, plaintiffs in error insist that they are not separable from the provision for double and treable damages, and the statute becomes therefore unconstitutional, for under it the plaintiffs in error are subject to be put twice in jeopardy for the same offense. ”

“ The principle contended for is probably not intended to be taken so broadly, and its generality is further limited by concession that it may have exceptions 'where so-called criminal negligence supplies a place of criminal intent, or where, in a few instances, the public welfare has made it necessary to declare a crime, irrespective of the actor's intent.' A concession of exceptions would seem to destroy the principle. ”

“ The law in controversy has no ex post facto element or effect in it. It was existing law when the trespass of plaintiffs in error was committed, and a trespass is a legal wrong, not an innocent act. There is no element of deception or surprise in the law. When the permit was issued, plaintiffs in error knew the limitations of it, and they took it at the risk and consequences of transgression. The state sought to guard against its wilful or accidental abuse. Permits had been abused and the lands of the state despoiled of their timber. ”

“ If any person, firm, or corporation, without a valid and existing permit therefor, cuts, or employs or induces any other person, firm, or corporation to cut or assist in cutting, any timber of whatsoever description, on state lands, or removes or carries away, or employs, or induces, or assists any other person, firm, or corporation to remove or carry away, any such timber or other property, he shall be liable to the state in treble damages, if such trespass is adjudged to have been wilful ”

“ Rep. 560, to sustain a statute which provided a criminal proceeding against resident owners of property for neglecting to connect their property with sewers, and civil proceedings against nonresident owners for a like neglect.
We do not understand the position of plaintiffs in error to be that a legislature may not prescribe a larger measure of damages than simple compensation, but that anything in excess of such compensation is punishment, and cannot be constitutionally prescribed where there is no 'conscious intent' to do wrong. ”

“ To sustain this conclusion, plaintiffs in error quote certain contentions of the attorney general of the state, made in the supreme court, and the reply of the court to the contentions. They do not support the conclusion deduced from them. It was urged by the attorney general that only wilful trespassers were subject to fine and imprisonment, but if such punishment could be held applicable to 'casual and involuntary' trespassers, and the act to decided unconstitutional as to that class, nevertheless it could be adjudged constitutional as to wilful trespassers. ”