56 Vt. 14 | Vt. | 1884
The opinion of the,’court was delivered by
The relator was arrested upon a warrant of Jewett P. Cain, a justice of the peace, and was taken before him to answer (as stated in the warrant) “ to the complaint herereto attached as by the said Horace W. Love, a ‘private person, on oath in writing, has been exhibited by him to mo as aforesaid against the said Barney Barker and to be further dealt with according to law.” Having been thus arrested and brought before said j ustice, the latter placed the relator in the hands of the constable of the town of Butland, who was the officer of said court, to whom this writ was directed, and who returns that the relator was in his custody “ by virtue of said warrant and complaint.”
The complaint was the statutory form provided in section 3859, Bevised Laws, and therein prescribed to be the form for offenses against sec. 3802, Bevised Laws, which section provides a penalty for the unlawful furnishing, selling or giving away of intoxicating liquor.
Mr. Love was not a town grand juror, but made this complaint as a private individual, and therefore struck out the words, “ grand juror,” found in the statutory form, and also the words importing that it was made upon the official oath of such officer; but swore to the complaint before the justice, and his jurat is appended to the complaint. This complaint and warrant with a recognizance to the relator “ to prosecute said complaint to effect, or on failure thereof pay the costs adjudged to ” the relator, constitute the process upon-which he is held.
The relator claims that this process furnishes no justification for his arrest and detention, upon two grounds :
Second, that there was no recognizance for damages as provided in sec. 1667, Eevised Laws!
Counsel for the State deny that the relator can be discharged on either of these grounds ; they further deny,-, even if these-positions are well taken, that a writ of habeas corpus is available to the- relator; and claim that, the justice was authorized to issue such a warrant; that the arrest was justifiable on -the warrant; that the justice had jurisdiction both of the subject matter and the person ; that he had the relator before him and had the right to proceed and hear and determine every question that could be made as to the lawfulness of the' proceeding ; that this court on this proceeding has no right to interfere with the jnstiee court in its proceedings, but the relator must abide the decision there and take his remedy by appeal.
Sec. 1343, Eevised Laws, provides: “No person’s body shall be restrained or imprisoned, unless by authority of law.”
Sec. 1344 : “ A person imprisoned in a common jail or the liberties thereof, or otherwise restrained' of his liberty by an officer or other person, may prosecute a writ of habeas corpus to. inquire into the cause of such imprisonment or restraint, and obtain relief therefrom if it is unlawful.”
These provisions are broad, broader than are found in some States; they confer a power and create a duty. Much might perhaps be said against conferring the power, especially upon single judges in vacation, on account of the danger that it might not be wisely exercised or might be abused ; but this pertains to the legislative department; and the policy of the State in .that respect has been long established.. We understand the limitation of the exercise of the power to discharge a relator in habeas corpus to be established by judicial decisions and practice in this State, so far as pertains to this case, substantially as it has
We do not overlook the' principle essential to the efficient administration of justice, that where a court is vested with jurisdiction over the subject matter upon which it assumes to act, and regularly obtains jurisdiction of the person, it becomes its right and duty to determine every question which may arise in the cause, without any interference from any other tribunal. But we think that when the process shows that the jurisdiction of the person was illegally asserted, then jurisdiction of the person is not regularly obtained. Restraint upon process that is void is no better than restraint without process. There is in legal effect no process. The restraint is therefore in such case unlawful, and the statute, sec. 1364, says : “ If no legal cause is shown for ,th'e imprisonment or restraint, the court or judge shall discharge the prisoner therefrom.”
We do not think it would be warrantable' under our statutes for the court or judge to say, when satisfied that the restraint is unlawful on account of the process being absolutely void, it is presumable that. the court where this process is pending will decide correctly upon the lawfulness of the proceeding, and if adversely to the relator, though erroneous, he may appeal, and in due course, though perhaps after months of imprisonment, finally get relief in the appellate court. We think the statutes as they stand impose the duty upon courts acting upon a habeas corpus proceeding to discharge a prisoner when satisfied upon proper inquiry that he is unlawfully restrained. Adams v. Whitcomb, 46 Vt. 708; Davis, ex parte, 18 Vt. 401; Tracy, ex parte, 25 Vt. 93; Hurd, Hab. Cor., chap 6, sec. 2.
In Greenough, ex parte, 31 Vt. 279, Judge Bennett used this language : . “ It is a well settled principle that a habeas corpus will not lie where the imprisonment is under voidable process, but only where the process is void. If the process is void it is
We think that habeas corpus is a proper remedy for the relator; and that his right to be discharged must turn on the question of the character of the process upon which he is held.
Independently of the question raised as to the sufficiency of the recognizance, the validity of that process depends on the. question whether Justice Cain had the legal right to issue his warrant on the complaint of a private person. The proceeding was instituted to recover the penalty provided in sec. 3802, Revised Laws. Was the process good or bad for this purpose, is the question. The question is not whether this method of enforcing the liquor law, so called, is wise or unwise ; it is not whether or not there is a general necessity, or a special necessity in this town to have the law enforced in this way in order to have it enforced ; but the question of necessity might bear somewhat on the construction of the statute here involved. It is not how a decision one way or the other will affect this community, or the politics of Rutland ; it is not what we or others think of the law as it stands, or desire as to its enforcement; it is not what may be the right of an aggrieved person to have instituted a criminal proceeding on his own complaint to a magistrate or the right of a magistrate to issue a warrant on such complaint. The guilt or innocence of the relator, under the charge in the complaint, is not before us. The question is as to the right, under the- law, to institute this proceeding in manner and form and for the purpose stated and hold this relator in restraint of his liberty under the process. This depends upon the construction to be given to chapter 169, Revised Laws, affected as it may be by other law, statute or common law.
I have been specific in stating what the question is and what it is not, in view of the somewhat wide range of the arguments.
One ground upon which the counsel for the State, base .the validity .of this, process is that the complainant was a. common informer. . That is, that the statute. having provided that a quarter of the fines, under sec. 3802, Revisqd. Laws, should go to the complainant, when complaint is made, (sec. 3855, Revised Laws), any person has the right to institute a proceeding on his own-complainc to a magistrate and prosecute the same.
■ Treating this complaint as ■ an information, and sec. 3855, Revised Laws, as expressly pointing out and directing a proceeding by a common informer: First, can this corqplaint be sustained as a proceeding by a common informer ? There is no statement in it that the complainant prosecutes for himself as
But a more important inquiry is this: Does sec. 3855, Revised Laws, expressly point out and direct a proceeding by a common informer % The language is : ' “ One-fourth of the fines *' * * shall go to the complainant.”
Formerly we had many penal statutes appropriating a portion of'the fine to a common informer or prosecutor, and the phraseology was the same in substance a's found in all the English statutes, viz : s< to him who should prosecute the same to effect.” As examples, see Vermont State papers, pago 346, an act for the preservation of deer; page 374, an act for the prevention and suppression of lotteries; page 377, an act for the punishment of perjury; page 382, an act to prevent the selling, etc., of untanned hides out of the State; page 459, an act to restrain the taking of excessive usury.
We think it was not the intention of the Legislature, in sec. 3855, to limit the benefit to the complainant to cases that he. should prosecute, but to extend it to every person who should make the complaint and give the information that should lead to conviction, and whether the proceeding should be instituted in the County Court or before a justice. The object plainly was to secure a more vigorous enforcement of the law. The offense itself created no public disturbance, nothing to attract the attention of the prosecuting officers. In this respect it was unlike most other offenses. It was not an offense against an individual, like an assault, or larceny, or robbery, or arson. The person buying liquor would not feel aggrieved. In view of the peculiar character of this offense' we think the Legislature intended by this section to offer inducements to people to disclose and inform of violations, and had no intention of imposing on the informer the burden of prosecution in order to entitle him to the benefit;
Another ground upon which the counsel for the State claim that this process is valid, is that any person may make complaint to a magistrate, and that such complaint under oath is justification for him to issue a warrant and proceed with the case.Counsel for the relator deny this except in case of the person “ grieved ” by the offense, and then only for the purpose of arrest and committal for trial. They also claim that, however that might be as to common law offenses, there is no such right under qhapter 169, Eevised Laws.
In Chitty’s Criminal Law, the author says: “ In general, however, every man is of common right entitled to prefer an accusation against a party whom he suspects to be guilty.” To similar purport are other authorities. In State Treasurer v. Rice et al., 11 Vt. 339, Williams, Ch. J., in the opinion of the court, says: “ The right of a private person to complain and prosecute for matters of a criminal nature has always been provided for ” in this State. Without further suggestion on this point we pass to consideration of the construction of chapter 169, so far as pertains to the question here to be decided, which is the important consideration in the case.
Does the act provide a method of enforcement of the penalties provided in sec. 3802, exclusive of other methods ?
In the case above . cited from the 11th Yt. Rep, Ch. J. Williams used this ' language : “ There is a striking and important difference in prosecutions for criminal offenses here ■ and in Englahd. In this' State, prosecutions for offenses before the-County Court, which lias'original and exclusive jurisdiction of moét offenses, aré; conducted by a' public officer appointed for that purpose, and responsible' for the manner 'in which he discharges his duty: ■ In- Englahd they are usually instituted and conducted by private prosecutors, and, frequently, are only for the purpose of obtaining redress óf a private injury. In many cases the civil action is suspended until the prosecntion for the offense is terminated. Although private prosecutions are here recognized in some cases, yet they are unusual, and are not looked upon in a favorable view ; and it is rare- that the attention- of tlie court has been -called, to proceedings under the section of the statute- before- mentioned, or to the authority of magistrates in such prosecutions.”
This opinion was delivered in 1839. 'Prior to that time there had been'numerous statutes providing' that -a moiety of the penalty should go to the person prosecuting, and prosecutions by private persohs had- 'been more frequent than they have been since, but- had tlien grown' into disfavor. Town grand jurors had been made general informing officers in their respective towns. This was done.in 1801. In the. revision-' of 1839 but little was saved of the early -. statutes giving a portion of the' fine to the prosecutor. But there have always been a few such ; and there are yet very few, thereby giving occasion for preserving the provisions with reference to recognizance for costs and damages as provided in secs. 1667 and 174-9, Revised Laws, and for appeal, sec. 1674, where the prosecution is by other than an informing officer.
In this condition of the criminal statutes and practice to enforce them, the liquor act, so called, was passed in 1852, sub
This law is somewhat exceptional in other respects. Its completeness as a code upon the subject matter is conspicuous. It conferred extraordinary power upon justices, conservators of the peace, in respect to an offense not in itself a breach of the peace.
This language was taken from the opinion of Lord Manseiel» in Rex v. Robinson, 2 Burr. 803. This rule rests on the maxim that the express mention of one thing excludes all other things.
In some early English cases a distinction was made, that where the offense is created in one section and penalties are prescribed in a subsequent section, the subsequent one is cumulative, and the common law method may be followed.
Bishop in his work on statutory crimes, sec. 251, speaks of this as refined and technical and against reason. No American
The word “ may ” in the clause “ may be tried,” in section 3803, cannot strictly be said to mean “ must ” or “ shall;” because neither of those words are applicable, but it is no less imperative than either of those words, would be._ The section begins by saying justices “ shall have concurrent jurisdiction,” etc., and then proceeds to say how they may, that is, can, proceed. No other word could properly be used there.
In view of the above, we do not think thatsec. 3855, providing for a distribution of the fine, operated to change the statute as to methods of procedure for the sale or furnishing of intoxicating liquor. That was passed in 1869, and we think from the language used, and omitted to be used, its purpose was to increase the inducements to promote prosecutions, by the methods first provided. To go beyond this seems to us would be legislation practically, instead of construction. The only claimed advantage of the enlarged construction insisted upon, is based upon the assumption that the constituted prosecuting officers will not discharge their duty. When this appears the Legislature can supply the remedy. We think they have not done it yet, therefore the court cannot rightfully do it.
The result is, no legal cause is shown for the restraint of the relator, and he is discharged.