77 N.W. 617 | N.D. | 1898
Lead Opinion
This record discloses the following facts: The petitioner, E. C. Carruth, was arrested in the County of Grand Forks upon a warrant charging him with the offense of criminal libel. Said arrest was made by one E. C. Taylor, who was the sheriff of Burleigh county, and who acted in making the arrest under and by virtue of said warrant, which warrant was issued by a justice
The notice of appeal is entitled as follows: “E. C. Carruth, Petitioner, vs. E. C. Taylor, Defendant.” Assuming that an appeal will lie, this is an irregularity, inasmuch as the proper parties in habeas corpus are the state and the petitioner. But the notice was served upon the state’s attorney of Grand Forks county, which officer, for the purposes of habeas corpus, represents the state in the court below. ' Rev. Codes, § 8669. As the petition is regular in other respects, it can be upheld as sufficient in substance; and this minor matter is adverted to only for the purpose of indicating the proper title -of the habeas corpus proceeding, and also for the purpose of calling attention to the important consideration that the state, as such, in issuing his prerogative writ, is a party to the proceeding.
It is elementary that the right of appeal is a statutory right, and this rulé is especially applicable in habeas corpus cases, as many states, have held that the decisions in this class of cases are not reviewable under a general law allowing an appeal from all final judgments. See Howe v. State, 9 Mo. 403; Ex parte Jilz, 64 Mo. 205. In Michigan the rule is that in habeas corpus an order dis
But the habaes corpus statute in this state further provides as follows :• “Any person who knowing that another has been discharged by. order of a competent judge or tribunal on a habeas corpus, shall, contrary to the provisions of this chapter, arrest 01 detain him again for the same cause which was shown on the return of such writ, shall forfeit five hundred dollars for the first offense and one thousand dollars for every subsequent offense.” Rev. Codes, § 8685. In an action brought to recover this penalty, for example, against an officer who knowingly, and after an order of discharge, continued to hold the petitioner in custody upon the same charge, it would be no defense, in our judgment, to plead that he held the prisoner for some reason other than those enumerated in chapter 20 of the Criminal Code. .Until the officer could point to a repeal of the provision of chapter 20, his defenses would be confined to the exceptional cases stated in section 8672 of that chapter. It is not contended that any of the provisions of chapter 20 have ever been expressly repealed. If repealed, such repeal must have resulted from the enactment of some later statute so repugnant to the habeas corpus act that the two cannot stand to
We now call attention to the fact that the law governing appeals from the District Court in civil actions and special proceedings, if applied to the writ of habeas corpus, would in its practical operation, necessarily defeat the chief purpose of the writ. Section 5619, Rev. Codes, provides that when “ the state * * ^ shall take an appeal service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given; but the Supreme Court may on motion require sureties to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the appeal.” Under this section,, if held to be applicable to habeas corpus, a party who has been adjudged to be illegally imprisoned by a court of competent jurisdiction, could despite such adjudication, be continued in custody upon the same charge, and that,.too, without any indemnity whatsoever. If such were' possible, it would require only a notice of appeal, emanating from the state’s attorney, to secure the continued incarceration of the petitioner for an indefinite period. Such a result would be so monstrous a perversion of the “liberty writ,” that this Court cannot hold that it was ever intended by the legislature to make the law governing appeals applicable to a habeas corpus case; and, before we should hold that an order of discharge could be reviewed in any manner, some statute must be pointed out authorizing such a review in terms. There is at present no such statute in this state. We fully recognize the fact that an order remanding the petitioner in a habeas corpus case cannot, under our construction of the statute, be reviewed on appeal. But we hold that the practical effect of our construction of the appeal law is not to deny the citizen the full benefits of habeas corpus. There are other tribunals whose duty and right it is to take jurisdiction and reinvestigate the question after the District Court has decided the matter and remanded the petitioner. Where an application is made to this Court in such case, the statute allows this Court, .or a judge thereof, to order the writ to issue, and make the same returnable before any District Court or judge thereof within the state; or this Court, at its election, can take jurisdiction, and re-investigate the original cause of imprisonment. See chapter 85, Sess. Laws 1897. At common law, as has been seen, an order in habeas corpus proceedings remanding the petitioner to custody is not res adjudicata. The first adjudication at common law was not a bar to another inquiry upon the same state of facts. It is well settled that, in the absence qf restrictive statutes, a prisoner is entitled to exhaust the entire judicial authority of the state courts and of the federal courts having authority to act, in his efforts .to free himself from unlawful imprisonment. See Church, Hab. Corp. 5x8, 519. See, also, In re Snell, 31 Minn, 110, 16 N. W. Rep. 692, which is a well-considered case. Under these author
Section 8651, Rev. Codes, as amended by chapter 85, Laws 1897, declares that the District Courts may issue and determine the writ in behalf of any person “restrained of his liberty in their respective districts.” It is manifest. that" after the District Court has once taken jurisdiction of a habeas corpus proceeding, and fully determined the same upon the merits, such court has rendered itself legally incapable of reinvestigating the case upon the same state of facts. That court cannot review its own deliberate and final adjudications. But the act of 1897 further provides, “When application is made to the Supreme Court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the District Court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district or has refused to grant such writ, or for some cause to be specially set forth is incapable of acting, and if such proof is not produced the application shall be denied.” The suggestion cannot be indorsed by this Court that the legislature intended by these regulative provisions to curtail the constitutional rights of the citizen to the writ — First, by forbidding him the right to obtain the writ from any of the District Courts of the state except that in whose district he is confined; and, second, by denying him the right to apply to the Supreme Court for the writ in all cases where the District Court has, after hearing the case, remanded him into custody. Any such construction would necessarily operate to render these otherwise valuable provisions of the statute directly
In the case at bar, and in all cases where the petitioner, on application to the District Court, has been remanded to prison, we are of the opinion that the constitutional right of the prisoner to the writ is not exhausted by the first remanding order, and that thereafter the petitioner may present his application to this Court, and state therein the fact that he has been remanded to prison by the District Court. This statement would show that no District Court, or judge thereof, without the intervention of this Court, would be capable of further acting in petitioner’s behalf; and this, we think, under a liberal construction of the statute last quoted, would be .sufficient. The District Court, having taken jurisdiction and fully determined the case, becomes ipso facto incapable of again acting upon the same state of facts; but this circumstance cannot conclude the petitioner. He still has in reserve his privilege at some time of invoking the original jurisdiction of this Court to determine the same matter.
. We hold that no appeal will lie from a final order made in a habeas corpus case, under existing statutes. Whether the legisla
Dissenting Opinion
(dissenting). I regret that I am unable to agree with my associates in this case. The results that follow from their conclusions are, I believe, more desirable than the results that follow my own conclusions; and I would gladly subscribe to their views, did I riot think that the legislation of this state imperatively forbids it. The matter is of so much importance that I deem it my duty to express my views by something further than a formal dissent.
We may start with the general propositions that originally a party who deemed himself unlawfully deprived of his liberty had the right to have the legality of his confinement passed upon by every court in the realm. If remanded by one court, he was at full liberty to petition another, and he could continue this process as long as he could find a court to which to apply. Under this practice the petitioner never asked for an appeal or review in any form. He had a speedier means of reaching the same result. If discharged by any one of the numerous courts to which he could apply, such discharge was, from the origin of the writ, held final. The crown could not appeal, any more than it could when a prisoner was discharged by the verdict of a jury. Hence a review was unknown in habeas corpus cases, and this, too, at a time when a review, if obtained at all, would have been obtained by a writ of error, which is a writ of right, and not an appeal, which is the creature of statute. But this fact, standing alone, establishes nothing. It does not show that a writ of error might or might not have been granted. I have found no English case where the writ has been refused. In the celebrated case of Ashby and White, reported in 14 Howell, St. Tr. 695-888, the matter was discussed at great length. This was in 1704-05, being in Queen Anne’s reign. Certain parties had been imprisoned by order of the house of commons for an alleged violation of the privileges of the house. They petitioned the Court of Queen’s Bench for a writ of habeas corpus, but on the hearing they were remanded. They then sought, by writ of error to bring the matter before the queen in parliament. The house of commons and the house of lords were in direct opposition on the point. Conferences were had, and exhaustive discussions; the commons being determined to keep the parties in confinement. It put forth the argument that the fact that no writ had ever been granted to review habeas corpus proceedings was evidence that none was allowable. In the end the commons petitioned the queen not to grant the writ, while the lords issued an address to the queen, the logic of which never has been, and never can be, answered, in which they urged the immediate issuance of, the writ. The queen replied
It is true that' in this state the writ of error is abolished, and all reviews are by appeal, as provided by statute. The majority-opinion cites certain cases to show that, under a general statute allowing appeals from all final judgments, appeals are not allowed in habeas corpus cases. The first case is Howe v. State, 9 Mo. 690. There the Circuit Court had refused to, discharge petitioner, and he appealed. The appeal was dismissed on the ground that the decision was not final, because the petitioner could make another original application to another circuit judge, or justice of the County Court, or justice of the Supreme Court. What that court would have held, had petitioner been discharged, and the state appealed, does not appear. Certainly the judgment would have been final in that case. But as to' whether or not an order remanding a prisoner is a final judgment, within the meaning of appeal statutes, seen the opinion of Chief Justice Taney in Holmes v. Jennison, supra. In Ex parte Jilz, 64 Mo. 205, no question of a right of appeal was involved. That was an original application to the Supreme Court for a writ of habeas corpus. What the Court did hold
These are all the cases cited by my associates to establish the proposition that appeals in habeas corpus cases are not permitted under general appeal laws. I submit that only in part do these cases support the proposition. In so far as they do support it, they are based upon statutes that permit appeals from final judgments only.
It is conceded b.y the majority opinion that in Minnesota and South Dakota, under statutes identical with ours, appeals in habeas corpus are allowed under the general appeal law. But the majority opinion proceeds to argue with much ability and ingenuity, that those cases were improperly decided, under the statutes. From that view I dissent, and this brings us to a more specific examination of our statutes. Section 5156, Rev. Codes, reads, “An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or 'protection of a right, the redress or prevention of a wrong or the punishment of a public offense.” The next section reads, “Every other remedy is a special proceeding.” It is not possible to misunderstand that language. Every remedy is either a civil action, a criminal action, or a special
But my associates base their ruling largely upon our habeas corpus statute, which they assert authorizes an application to this Court for the writ of habeas corpus after the writ has been issued by the District Court, a hearing had, and the petitioner remanded; thus -enabling the petitioner to obtain in a speedy manner and without the necessity of an appeal, with its delays, the judgment of this Court upon the merits of his case. Here we diametrically differ. Section 8651, Rev. Codes, as amended by chapter 85, Laws 1897, reads: “The writ of habeas corpus must be granted, issued, and made returnable as hereinafter stated: (1) The writ must be granted by the Supreme Court or any judge thereof upon petition by or on behalf of any person restrained of his liberty within this state. When granted by the Court it shall in all cases be issued out of and under the seal of the Supreme Court, and may be made returnable, either before the Supreme Court, or before the District Court or any judge of the District Court. (2) The writ may be granted, issued, and determined by the District Courts and the judges thereof upon petition by or on behalf of any person restrained of his-liberty in their respective districts. When application is made to the Supreme Court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the District Court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district or has refused to grant stich writ, or for some cause to be specially set forth is incapable of acting, and if such proof is not produced the application shall be denied.” That this section is an innovation, and intended as an innovation, upon the old practice is too clear for question. It strikes at once at the matter of repeated applications to courts of equal authority. A District Court, or the judge thereof, can only grant, issue, and determine the writ upon the petition of a party confined in that particular district. No other District Court or judge has any jurisdiction. So much is conceded in the majority opinion. But neither can a party come to this Court in the first instance as a matter of course. Certain facts must be shown. The judge of the District Court of the district where the petitioner is confined must be absent, or must refuse to act, or, for some cause to be specially set forth, must be incapable of acting. What incapacitates a judge? Sickness, consanguinity, affinity, or such personal interest in the result as makes it improper for him to act. These have always been held to disqualify. But the majority would ingraft another disqualification. They say, in effect, that the petitioner must show to this Court that the judge of the proper District Court is absent, or has refused to act, or has acted. 1 humbly submit that the statute will bear no such con
If it be claimed that my construction of the statute renders it unconstitutional, as unduly infringing upon the powers given to this Court to issue writs of habeas corpus, I ariswer that, while it is