Cummings v. Board of Education

ARNOLD, J.

(specially concurring). The Constitution of the State of Oklahoma provides:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided”; and “No person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.” (Sections 21 and 27, art. 2, of the Constitution.)

By the plain, simple, and direct language of these provisions of the Constitution, obvious purpose of the sovereign people is inescapable; by these provisions it is evident that the people of the State of Oklahoma never intended that one who was forced to give testimony that would tend to incriminate him should thereafter be pro.secuted or subjected to any kind or character of penalty or forfeiture. It was intended by the people that no one should be compelled to incriminate himself unless the sovereign state determined that it would be in the interest of the public welfare to require such incrimination.

When the sovereign people wrote the Constitution they knew that instances would arise wherein great frauds and conspiracies could not be uncovered without the testimony of some one of

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the thieves, embezzlers, or conspirators and that the public interest and rights of innocent people would, therefore, demand in some instances that a guilty person be used to uncover such filthy, insidious, and corrupt situations as herein exposed. In order to protect the general public by uncovering such corruption as was uncovered in the school board cases, the people themselves said that “no person” in such a situation, who is compelled to give testimony that will incriminate himself, “shall be

prosecuted

or

subjected

to

any penalty

or

forfeiture

for or on account of

any transaction, matter

or

thing

concerning which he may so testify or produce evidence.” To hold, as contended for by the plaintiff, that these provisions of the Constitution are not applicable in civil actions or to hold that one who has been compelled to give testimony against himself may thereafter be forced to respond in damages in excess of actual damages would violate the very purpose and intention of the people expressed in their Constitution and would in fact prevent, as this record so eminently illustrates, the uncovering of such heinous and fraudulent practices of the guilty members of the old school board as disclosed by this record and other adjudicated cases.

It could not be reasonably expected that one, such as Cummings in the instant case, would ever tell the truth and thereby incriminate himself to uncover a fraud, such as that involved herein, if he thought that his immunity would not protect him against penalty or forfeiture in civil matters connected therewith; or, in other words, subject him to more than actual damages. This illustrates in a practical way why a rule applying these provisions of the Constitution only in criminal cases would thwart the purposes of the people to uncover such corrupt situations. So, to carry out the will and purpose of the people expressed in the foregoing provisions of the Constitution, Cummings, though a confessed bribegiver, must not be subjected to the repayment of any sum for any purpose in excess of the actual damage he produced or participated in.

We know by this record that Cummings paid a bribe of $7,371. The plaintiff prosecuted its lawsuit against him on the theory that he could be made to respond in damages in accordance with certain statutes of the state providing penalty or forfeiture. The majority opinion correctly covers the issues as to the applicability of these statutes under all the facts and circumstances. This leaves the case as one for damages. The only evidence of actual, damages shown is the amount of the bribe paid. In my opinion, the judgment of the lower court should be affirmed in this amount. However, I can see no great injustice to the parties to permit a retrial of the cause giving the school board, as now constituted, the opportunity of returning the land and refunding the price paid less such actual damages as would flow from the transaction itself, or if it determines to keep the land, recover from Cummings all actual damages it may be able to show that the school board suffered by such transaction.