17 Ga. App. 151 | Ga. Ct. App. | 1915
Lead Opinion
R. M. Jones brought this suit against Benjamin H. Hill, one of the judges of the superior court of the Atlanta circuit, for the recovery of the penalty specified in the code (Civil Code, § 4860; Penal Code, § 1315), for refusing to grant him the writ of habeas corpus. The suit was amended, and, thereafter coming on to be heard on general demurrer, was dismissed on the ground that it did not set forth sufficient facts to constitute a cause of action. The plaintiff excepts to the dismissal of his suit for the penalty, and makes the contention that in performing the duty of granting the writ of habeas corpus, a judge acts only in a ministerial capacity.
The code section upon which the suit is based had its origin in an act passed during the war between the States, in the year 1863 (Acts 1863-4, p. 45). No doubt the exigencies arising from the conscript act caused its passage. We agree, however, with counsel for the plaintiff that this is immaterial, for the statute was apparently modeled after section 10 of article 1 of the habeas-corpus act of 31 Chas. II (1679) (Hotchkiss, Statute Law of Georgia, 305), which reads as follows: “Provided also, and be it further enacted by the authority aforesaid, that it shall and may be lawful to and for any prisoner and prisoners as aforesaid, to move and obtain his or their habeas corpus as well out of the high court of chancery or court of exchequer, as out of the courts of king’s bench or common pleas, or either of them; and, if the said lord chancellor or lord keeper, or any judge or judges, baron or barons for the time being, of the degree of the coif, of any of the courts aforesaid, in the vacation time, upon view of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of habeas corpus by this act required to be granted, being moved for
The same discretion of preliminary investigation will be found to be conferred upon the judges in various similar statutes in other jurisdictions, exposing a judge to penalty for refusing to grant the writ of habeas corpus. In Illinois any judge empowered to issue writs of habeas corpus who corruptly refuses to grant the writ where legally applied for, in a case where it may lawfully issue, or who shall, for the purpose of oppression, unreasonably'delay issuing the writ, is subject to a penalty of one thousand dollars. By the provisions of the Kentucky code, a judge who refuses to grant the writ when legally applied to forfeits five hundred dollars. In Mississippi the wilful refusal or neglect to grant the writ subjects the judge to civil liability to the aggrieved party. In Wisconsin and in Michigan the refusal to grant the writ, when it is legally applied for, imposes liability upon the judge for one thousand dollars. In New York (Code, § 2020) a judge to whom a petition for the writ of habeas corpus is presented must, under penalty of one thousand dol
The first question which presents itself, therefore, is whether the judge to whom an application for the writ of habeas corpus is presented has any discretion, or whether he is. compelled, merely in a ministerial capacity, to issue the writ. The present case appears to have been the first action ever brought under the act of 1863 now embodied in the code section referred to, and is certainly the first one to be carried to a court of last resort in this State; and for that reason there is no precedent to guide us. It is well settled, as a general rule, that a judge can not be held liable for his decisions or their results, although he may not correctly decide; and, largely upon this principle, the learned judge of the trial, court dismissed this suit. The practical effect of applying that rule to such cases would be to annul the act. The legislature doubtless had some purpose in reincorporating the statute in the code, other than the ends sought at the time the act was originally passed, and we shall endeavor to adjudge the present case according to the express terms of the code section. If such a construction can be given to a legislative act as will preserve it, it is always the duty of the courts to adopt that construction, rather than one which will result in its destruction. Conceding that from the very nature of his office a judge should not “be questioned in a civil suit for doing, or for neglecting or for refusing to do a particular official act in the exercise of judicial power,” the legislature may have had in mind a supposable ease where the writ of habeas corpus might be refused oppressively or corruptly, and where, upon plain proof that the judge had been influenced by personal motives rather than official judgment, the party aggrieved would be permitted to proceed against him personally in a civil suit for the penalty prescribed. From the fact that it is only when it is the duty of the judge to grant the writ that he becomes subject to the penalty on his refusal
By the provisions of section 1292 of the Penal Code, the contents of an application for the writ of habeas corpus are prescribed. It was never intended that one to whom, though rightfully detained, confinement had become irksome should involve any judge in needless investigation of the legality of his detention; for it is well settled that the merits of -the charge against the applicant are not to be considered in the hearing on the habeas corpus. For this reason, in section 1292 of the Penal Code, it is prescribed that the application for the writ of habeas corpus shall state: “(1) The name or description of the person whose liberty is restrained. (2) The person restraining, the mode of restraint, and the place of detention, as nearly as practicable. (3) The cause or pretense of the restraint; and if.under pretext of legal process, a copy of the process, if within the power of the applicant, must be annexed to the petition. (4) A distinct averment of the alleged illegality in the
Our construction of the code section on which this suit was based is entirely consistent with the principle that a judge acting in his judicial capacity is not to be held civilly liable after having considered and determined any cause in a judicial capacity, and upon that ground the court properly sustained the demurrer and dismissed the petition. However, the provisions of this section are so framed, in our opinion, as to reach the same ends as are sought
Judgment affirmed.
Concurrence Opinion
concurring specially. We concur in the affirmance of the judgment, but we are inclined to the view expressed by Mr. Justice Cobb in Simmons v. Georgia Iron & Coal Co. (supra), where, in discussing the writ of habeas corpus, he says: “Mr. Justice Bleckley, in Perry v. McLendon, 62 Ga. 598, 604, says that the writ should be issued ‘provided the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment— though complained of as illegal — is in fact legal.’ It is therefore the duty of the court in every case, before issuing the writ, to inspect the application to see if it contains sufficient averments and is properly verified. If it lacks these essential requisites, he should decline to issue the writ. If it does not, it is ‘his duty to grant it,’ and for a failure to do so the law imposes a penalty upon him.” In other words, we think a judge refuses to grant a writ of habeas corpus at his peril. If the petition which was presented to Judge Hill had shown on its face a case of illegal imprisonment, then, in our opinion, by refusing to grant the writ as prayed for, he would have been subject to the penalty imposed by the Code. The fact that the writ was afterwards issued, on the same petition, by another judge, is immaterial, as, in our judgment, the petition not presenting a prima facie case of illegal imprisonment, the issuance of the writ was not mandatory upon either of the learned judges.