Commissioner op Agriculture. 97 



should be a bar to the other, or that the people may elect be- 

 tween them. 



The act either grants but one cause of action or it grants two. 

 If it grants one, that one, is the criminal proceeding. 



If section 37 be construed as granting two causes of action, 

 one a civil and the other a criminal one, it would grant causes 

 of actioD in violation of the constitutional inhibition against 

 putting the defendant twice in jeopardy. 



The fifth amendment of the Federal Constitution is as follows: 



"Trials for crimes; twice in jeopardy; private property for 

 public use. — No person shall be held to answer for a capital or 

 otherwise infamous crime unless on a presentation or indictment 

 of a grand jury, * * * nor shall any person be subject for 

 the same offence to be twice put in jeopardy of life or 

 limb * * * ." 



Article I, section 6 of the New York State Constitution pro- 

 vides as follows: 



" Bill of Eights. — * * * No person shall be subject to be 

 twice put in jeopardy for the same offense." 



It is to be noted at the outset that the provision of the State 

 Constitution is much broader than that of the Federal Constitu- 

 tion. The Federal Constitution limits it to jeopardy of life and 

 limb. The State Constitution contains no such limitation. 

 However, it was from the earliest times held that in construing 

 the provision of the Federal Constitution, the court should be 

 guided by the spirit rather than by the letter of the law, and 

 apply the constitutional provision not only to the felonies but 

 to all indictable offences, including misdemeanors. — Ex parte 

 Lange, 18 Wallace, U. S., 163; Bcrkoicitz v. United States, 93 Fed. 

 Rep., 452. 



It has further been held by the Federal courts that an action 

 to recover a statutory penalty, though civil in form, is in reality 

 a criminal case. — Lees v. United Statm, 150 U. S., 476; Boyd v. 

 United States, 116 U. S., 616. 



And the courts, following the decisions holding that misde- 

 meanors are within the constitutional provision, have held that 

 7 



