86 Va. 40 | Va. | 1889
delivered the opinion of the court.
Petitioner insists that he is illegally restrained of his liberty on three grounds: (1) Because the justice by whom the judgment was rendered had no jurisdiction to proceed against him, and therefore that the proceedings were coram non judice and void: (2) because the conviction is not warranted by the evidence: and (3) because, even if the justice-had jurisdiction of the case, the commitment is void, because it- transcends the power of the justice.
1. As to the question of jurisdiction.
Section 3799 of the Code provides that “if a person, on a Sabbath day, be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offence,” every day any servant or apprentice is so employed constituting a distinct offence. The section immediately, following, however, excepts from the operation of the law “any person who conscientiously believes
The word “forfeit” here used is synonymous xvith fine. Sec. 745. And the question, therefore, in this connection is, Ilow is such fine to be enforced or collected, if it is collectable by judicial process at all?
Section 712 enacts that “ where any statute imposes a fine, unless it be otherwise expressly provided, or would be inconsistent with the manifest intention of the General Assembly, it shall be to the commonwealth, and recoverable by presentment, indictment, or information. Where a fine without corporal punishment is prescribed, the same may be recovei’ed, if limited to aix amount not exceeding twenty dollars, by warrant, aixd if ixot so limited, by action of debt, or actioix on the case, or by motion. The proceeding shall be in the name of the coixxmoxxwealth. ”
It is also provided by section 2939, which relates to “warraxits for small claims,” that any claim to a fine, not exceeding twexxty dollars, which would be recoverable by an actioix at law, shall be cognizable by a justice, the proceeding to be by civil warrant, as in the case of other small claims enumerated in the same section. Axxd by sectioxi 717 it is enacted that “ when any fine is imposed by a jxxstice, he may commit the defendant to jail until the fine and costs are paid, or until the costs are paid where there is no fine, but he shall not issue any execution therefor.'1'’ And. this provision must be construed as giving the only means to a justice for carrying into effect a judgment rendered by him for a fine in any case, civil or criminal. In other words, what would seem to be an implied authority to issxxe a fi. fa. upoix a judgment for a fine uxider section 2948, relating to executions on judgments for sxnall claims, is controlled by the express prohibition contained in
It is thus apparent that not only is the statutory fine prescribed for a violation of the Sabbath recoverable before a justice, but there are in fact two remedies for such recovery. One is by warrant of arrest or a criminal prosecution; for the rule at common law is that where a statute gives a justice jurisdiction over an offence, it impliedly gives him power to apprehend any person charged with such offence. Bac. Abr., tit.. Justices of Peace (E) 5. And=the other is by a civil warrant. The latter remedy was pursued in the present case, the proceeding having been commenced by a summons, in the form of an ordinary warrant in civil cases, and not by warrant of arrest; so that much of the argument, as to the validity of a conviction in any criminal case where the right of a jury trial is denied the defendant, is not applicable to the case before us.
The warrant also sets forth, with technical precision, the charge upon which the proceeding was based; that is to say, that the defendant, on a certain Sabbath day, did labor at his trade and calling, as a retail merchant, etc., which was neither a work of necessity nor charity, etc., thus following the rule of pleading a statute, which is, that if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the éxception; but if there be an exception in a subsequent clause or section, or a subsequent statute, that is matter of defence, and is to be shown by the other party. 1 Chit. Pl., 223; 1 Bish. Crim. Pr., sec. 378. No point, however, is made upon the form of the warrant.
2. The case, therefore, was not only within the jurisdiction of the justice, but it was brought and conducted in. strict con
The rule is very clearly stated in Ex parte Parks, 93 U. S., 18, as follows: “When the prisoner is in execution upon a conviction, the writ ought not to be issued, or, if issued, the prisoner should at once be remanded if the court below had jurisdiction of the offence, and did no act beyond the powers conferred upon it. The court will look into the proceedings so far as to determine this question. If it finds that the court below has transcended its powers, it will grant the writ and discharge the prisoner, even after judgment; but if the court had jurisdiction and power to convict and sentence, the writ cannot issue to correct a mere error.” Citing Ex parte Watkins, supra; Ex parte Kearney, 7 Wheat., 38; Ex parte Wells, 18 How., 307; Ex parte Lange, 18 Wall., 163. See also Ex parte Siebold, 100 U. S., 371; In re Ayers, 123 Id., 443, and cases cited.
We are not, therefore, to inquire in the present ease as to the correctness of the conclusion drawn by the justice from the evidence before him. In other words, whether the defends ant, in point of fact, carried on his business on a Sabbath day, as charged in the warrant, or what was his belief in respect to
Tn the case of Crepps v. Durden, Cowp., 640, an action of trespass against a justice was maintained before Lord Mansfield on the ground that in the proceeding complained of— which was for an alleged violation of the Sabbath—the defendant had exceeded his jurisdiction; that is to say, he imposed several penalties upon the plaintiff for a violation of the statute on the same day, and this was held to be illegal. But the law is well settled that a conviction by a magistrate, who has jurisdiction over the subject matter, is conclusive evidence of the facts stated in it when collaterally assailed. 1 Smith’s Lead. Cas., 1079, notes to Crepps v. Durden.
In Cove v. Mountain, 1 Man. & G., 257 (39 E. C. L., 432), the rule was declared to be this: “ That if a magistrate commit a party charged before him in a case where he has no jurisdiction, he is liable to an action of trespass; hut if the charge be of an offence over which, if the offence charged he true in fact, the magistrate has jurisdiction, the magistrate’s jurisdiction cannot be made to depend upon the truth or falsehood of the facts, or upon,the evidence being sufficient or insufficient to establish the corpus delicti brought under investigation.”
The rule, as thus expressed, was quoted with approval by Lord Chief Justice Denman in the subsequent case of Regina v. Bolton, 1 Ad. & E. 66 (41 E. C. L. 439), whose language, in delivering judgment, is peculiarly appropriate to the present
Hor is the rule affected by that provision of the Code, relating to the writ of habeas corpus, contained in section 3035, to the effect that affidavits taken on reasonable notice may be read, in the discretion of the court or judge. The affidavits here referred to, are such as are introduced to show illegality, or something other than mere irregularity, in the detention of the prisoner. The legislature never intended to give authority to this or to any other court to review upon affidavits on habeas corpus the judgment of another court, for the purpose of correcting mere errors in that judgment. The solemn judgments of the courts of the commonwealth are not to be 'collaterally set at naught in that way; and a judgment of a justice of the peace, whose jurisdiction of the case appears, is as secure from collateral attack as is a judgment of a court of general jurisdiction. Both in this regard stand upon the same footing; the only difference being that in respect to the former, the jurisdiction must affirmatively appear, whereas in the latter case jurisdiction is presumed. Freem. Judgm., sec. 524; Hurd. Hab. Corp., 367; Comstock v. Crawford, 3 Wall. 396.
3. We are of opinion, however, that the third point made by the petitioner is a good one; that is to say, the commitment is defective.
The Code provides that a defendant who is adjudged to pay a fine may be committed until the fine is paid, but prescribes
The petitioner is, therefore, eirtitled to be discharged from custody under the commitment of the justice; but an order will be entered commanding the officer in whose custody he is, to again take him into custody, and forthwith carry him before the justice by whom he was committed, to be further dealt with according to law. Authority for such procedure, if authority were needed, may be found in Young’s case, 1 Rob. Rep., 805.
It is proper, however, to add that we do not concur in the view urged by counsel for petitioner, that inasmuch as no provision is made for a jury trial before a justice of the peace, section 717 of the Code, authorizing a commitment for a fine imposed by a justice, is unconstitutional. The proceeding in
Blackstone, whose commentaries were published before the revolution, and whose partiality for the common law system of trial by jury is displayed throughout his great work, devotes a whole chapter to the subject of summary convictions, in the course of which he says: “Another branch of summary pro-. eeedings is that before justices of the peace in order to inflict divers petty pecuniary mulcts and corporal penalties denounced by act of parliament for many disorderly offences, such as common swearing, drunkenness, vagrancy, idleness, and avast variety of others, for which I must refer the student to the justice books formerly cited,” etc. 4 Bl. Comm., 280. And in Burn’s Justice, referred to by Blackstone, an almost infinite number of such offences are mentioned and forms giveu for their prosecution, among them being the offence of publicly crying, shewing forth, or exposing to sale any goods, wares, or merchandize (with certain exceptions) on the Lord’s day, for which the offender, upon conviction before a justice, was required to pay a fine, and in default of such payment it was
Pomeroy, in liis note to Sedgwick on the construction of statutory and constitutional law, at page 487, well says: “ It is the right of trial by jury which exists and is preserved, and what that right is is a purely historical question, a fact to be ascertained like any other social, legal, or political fact. As a constitution speaks from the time of its adoption, the fact of the right to jury trial, which is ascertained to have existed at that time, must necessarily determine the meaning of the clause which recognizes and preserves that right.” o The adjudged cases to the same effect are numerous and uniform. Many of them are collected by the learned annotator of the American decisions (Mr. Ereeman) in his note to ■the ease of Flint River Steamboat Co. v. Roberts, 48 Am. Dec., at page 186, to which we refer.
The subject was considered by the supreme court of the United States in the recent case of Callan v. Wilson, 127 U. S., 540, and while it was there held that the crime of conspiracy, such as was charged against the defendant in that case, was not of a class of petty or minor offences triable without a jury consistently with the constitution in the police court of Washington, in the Bistriet of Columbia, yet it was conceded, in the'opinion of the court, that there is a class of minor offences which are so triable, and ■ many of the cases so deciding were cited, including Byers v. Commonwealth, 42 Pa. St., 89, and State v. Glenn, 54 Md., 572.
It was also held in the same case that where a party is entitled to be tried by a jury at all, he is entitled to be so tried in the first instance, and that where this is denied, a statute giving a right of appeal to a higher court, in case of conviction, where the defendant is -accorded a jury trial, does not
An order will be entered in conformity with this opinion.
Judgment reversed.