State v. Mace 5 Md. 337

The State of Maryland vs. Oscar Mace.

The act of 1853, ch. 238, In so far as it -confers upon the Court of Common Pleas for the city of Baltimore the power to issue -the writ of habeas corpus cum causa, is unconstitutional, the powers specially enumerated in the 10th sec. of the 4th art. of the Constitution being all -that are conferred upon that court, and it is not competent for the legislature to add to or subtract from them.

The appellate power given to the Court of Common Pleas to revise the judgments of justices of the peace does not authorise that court to do so on habeas corpus, for where a judgment is liable to be reviewed by an appeal from it, the writ of habeas corpus cannot be applied.

Proceedings against parties, under the act of 1854, ch. 138, for the violation of the same, are civil actions: and that part of the act which prohibits an appeal from the judgments of the justices, in such cases, to the Court of Common Picas is unconstitutional, being in violation of the 19th sec. of the 4th art. of the Constitution, which gives such appeal “to all civil cases”

The Court of Common Pleas having no power to review the judgment of a justice of the peace on habeas corpus, but having done so, this court has the right to review, oil appeal, its action in such case.

The term debt, in that clause of the Constitution which provides, that “No person shall be imprisoned for debt,” is to be understood as an obligation arising otherwise than from the sentence of a court for the breach of the public peace or commission of a crime.

When legal terms are used in a statute they are to receive their technical meaning, unless the contrary intention plainly appears; hut this rule does not apply to the interpretation of the organic law, which is to he construed according to the acceptation of those who adopted it.

All courts have the right to issue the writ of habeas corpus ad testificandum, it being a power indispensable to the trial of causes.

Appeal from the Court of Common Pleas for Baltimore city.

The appellee was arrested upon a warrant issued by a justice of the peace for a violation of the act of 1854, ch. 138. Judgment was rendered against him for $5 and costs, for the nonpayment of which he was committed to jail. He then made application to the Court of Common Pleas for a writ of habeas corpus cum causa, which was granted, and, upon hearing, the petitioner was discharged. Upon the passage of the order discharging the party, from which this appeal was taken by the Slate, the court below, (Marshall, J.,) delivered the following opinion:

*338 “ This case involves several questions of constitutional law upon which, as upon all subjects of human thought, men entertain different opinions. As I have arrived at different conclusions upon them from many members of the legal profession and the bench, for whom I entertain great respect, I particularly desire the Court of Appeals to decide them finally. Knowing that the parties against whom my decision will operate can appeal, and fearing that the party to the petition could sot, without great inconvenience, if at all, do so, I have given to the opinions expressed by other judicial tribunals of the city a less influence over my judgment upon these questions than I shoold, perhaps, otherwise have done. The facts of the case are very simple: The petitioner has been adjudged guilty of insuring lottery policies, and has been subjected, in an action of debt, to the payment to-the State, for the use, jointly, of the-State and the informer, of several fines. I must assume, therefore, for the purposes of this case, that be is an. offender against the law and is liable to a pecuniary punishment. Th.e justice, upon rendering the judgments, as a mode of collecting the money due upon them, has committed the party to jail. The validity of the judgments is not questioned here. The legality of the imprisonment as a means of enforcing payment' is alone in question. The act of 1777, ch. 6, seems to me to authorize the summary commitment to jail resorted to here, unless the provision of the present Constitution of the State, forbidding “imprisonment foi; debt,” shall, be taken to have abolished that remedy. The Convention, in framing the Constitution, indulged in much legislative detail; where they have been brief and used' general terms, they must be understood to have done so with a purpose. I take the word' “debt,”'in the article of the Constitution referred to, to mean pecuniary obligation. That in the legislation of this State,, the word “debt,” when unexplained, has this import, and-comprehends fines even for misdemeanors, is evident from the proviso of the 5th sec. of the insolvent law of 1805, ch. 110, where fines for any breach of law are excepted out of an enumeration of liabilities, among which the word debt is the only one which could possibly embrace “-fines.” It is always iti *339the power of the legislature to make imprisonment a part of the punishment of offences which they may create anew by enactment, as it is of the criminal courts in adjudicating upon misdemeanors at common law or of statutory creation. The legislature could have punished the offence of vending lottery insurances by imprisonment if they had deemed it proper. They have not done so. 1 do not feel at liberty, under these circumstances, from any abstract apprehension of my own, as to the “convenient” or “politic” to limit the meaning of the language of the Constitution so as to accomplish an end which the legislature have purposely avoided. So enlarged has become the policy of the State on the subject of incarceration of the person, that where offences are made punishable by fine and imprisonment, the fine is made subject to discharge, under the insolvent laws, upon the suffering of a very limited imprisonment. I am of opinion that the imprisonment of this party is illegal.

"Serious doubts exist as to the right of this court to use the writ of habeas corpus at all, notwithstanding the express authority of the legislature, conferred by the act of 1853. I entertain these doubts myself, but suppose that where the writ is used as auxiliary to the exercise of the express powers of the court, as contained in the 10th section of the 4th article of the Constitution, it may be legally resorted to. As for example, this court may bring persons before it, I think, to testify, to respond, to prosecute, Sec., Sec.,as incidental to its express jurisdiction. One branch of its express jurisdiction is a general appellate power over the proceedings of justices of the peace. I incline to the opinion, that independently of the act of 1853, above referred to, this writ, of habeas corpus might be exercised by this court, by implication, in any case where it might be deemed an exercise of this appellate jurisdiction. Surely that act, however unconstitutional it may be otherwise esteemed, must be judged constitutional so far forth as it may be applicable to this appellate power. The Supreme Court of the United States is a court of a jurisdiction expressly defined by statute, as is this court. The Supreme Court is invested by law with power to use this writ. They construe that power *340to mean, that where its exercise involves an original act of the court, they can only use the writ in. cases where they have original jurisdiction. Where the writ is invoked that the court may-review the action of a tribunal over which it may exert an. appellate power, they use it; where it may be appropriately done in this appellate character. (See the cases of Mollman. and Swarhoout, in 4 Cranefi, 75,. and of Watkins, in 3 and also in 7 Peters’ Reports.) I suppose this Court of Common Pleas may,, under the 10th sec. of the Constitution, in the judiciary article, review the action of justices of the peace, on appeal in every form under whieli the appellate power of a court may properly be exercised.” It may examine the- correctness ©f a justice’s judgment upon an ordinary appeal. It may, I think, entertain an appeal from the action of a justice upon a motion to quash an execution or other process. And it appears to me that this writ of habeas corpus is an appropriate mode of exercising the appellate power of this court, where a justice has summarily ordered a defendant to jail, without the intermediate process of a capias ad satisfaciendum, upon which distinct and appropriate action might be had without resort to. this writ. Thinking that I have jurisdiction in the case, and that the imprisonment is illegal, I shall order the discharge of the petitioner.”'

The cause was argued before Le Grand», C. J., Eccleston Mason and Tuck, J.

J. M. Campbell and John Nelson for the appellant.

The third section of the original act of 1846, ch. 109, prohibited the insuring of lottery tickets, or numbers of lottery tickets, and inflicted a fine therefor of $50, recoverable before a justice of the peace by an action of debt. The act of 1854, ch. 138, amended and re-enacted as amended, this section, so as to make the fine $5 instead of $50 for each offence. Under this latter act warrants were issued against the appellee for a violation thereof, by a justice of the peace, and judgments recovered against him, and upon process issued upou these judgments he was committed to jail. He then applied to the Court of Com*341mon Pleas to be discharged on habeas corpus. The court issued the writ, brought him before it and discharged him.

Upon these facia the first question which arises is, has this court the power to act upon this case by way of appeal from the action of the court below, in discharging the party under the writ of habeas corpus.

It is said no appeal will lie from a decision on a writ of habeas corpus. The authorities on this point are in conflict. 1 Penr & Watts, 82. 8 Alabama Rep., 424, Ex-parte Chaney. 9 Sme. & Mar., 386, Steele vs. Shirley. 9 Missouri, 691, Howe vs. The State. 1 La. Annual Rep., 414, Ex-parte Mitchell. 6 Johns. 337, Yates vs. The People. 14 Pet., 561, Holmes vs. Jennison. The discharge of the party here was but in fact quashing an execution, and in such cases an appeal will always lie. 6 G. & J., 76, Waters vs. Duvall. In the case of Bell vs. The State, 4 Gill, 301, the party was refused a discharge, and the court place their decision upon the ground that it was not a final judgment; but here the party was discharged, and the execution is effectually quashed: the judgment so far as the State is concerned is final.

But if the Court of Common Pleas had no authority to issue the writ, it is clear that this court may upon appeal review its decision unwarrantably pronounced on the subject. 9 Gill, 92, Webster vs. Cockey, and State vs. Mister, Ante 11. The question then recurs, had that court the power to issue the writ ? We say it had not, for the Constitution gives it no such power. It is not a court of general jurisdiction, but of special and enumerated powers. The 10th section of the 4th article of the Constitution confines and limits its jurisdiction: — 1st. To civil suits where the debt or damage claimed shall be over $100, and shall not exceed $500. 2nd. To all cases of appeal from the judgments of justices of the peace; and 3rd. To insolvent applications. In the 11th section of the same article creating the Superior court there is a general grant of jurisdiction “in all other civil cases which have not been heretofore assigned to the Court of Common Pleas f which, of course negatives the exercise of any other jurisdiction by the latter court than that specially given. We say then, the legislature *342hacl no power to give a new subject of jurisdiction to that court, and hence the act. of 1S53, ch. 238, so far as it attempts to confer upon the Court of Common Pleas the power to issue the writ of habeas corpus is unconstitutional and void.

But this power has been claimed for that court by virtue of the appellate jurisdiction given to it over (he judgments of the justices of the peace. The case of Bollman and Swartwout, 4 Cranch, 75, only decides that the Superior court has authority to issue the writ where it would have jurisdiction over the subject matter by way of appeal if the case had been brought before it on appeal. In the present case the party had no right of appeal to the Court of Common Pleas. The lOlh section of the 4th article of the constitution declares that the Court of Common Pleas “shall have jurisdiction in all cases of appeal from the judgment of a justice of the peace;” but the 4th section of the 10th article says> that the trial by .jurv shall be preserved in civil proceedings where the amount in controversy “exceeds the sum of five dollars.” The former provision is qualified by the second, and the appeal is restricted to civil cases in which appeals were allowed by existing laws, and to such only where the amount involved exceeds the sum of five dollars. This case is neither a civil case, nor does the amount involved exceed five dollars. But suppose the right of appeal to the Court of Common Pleas existed, still that court had no power to issue the writof habeas corpus. The judgment of the magistrate was at most merely erroneous, and liable to be examined by an appeal from it, and in such cases the Court of Appeals have decided “the writ of habeas corpus cannot be applied.” 4 Gill, 305, Bell vs. State. But we insist further that the granting of this writ is not the exercise of appellate jurisdiction at all, but is an exercise of original jurisdiction.

Assuming that the Court of Common Pleas had jurisdiction to issue the writ, the next question is, did it commit error in discharging the party? This presents the question whether the Constitution has abolished imprisonment for fines and penalties? The Constitution says “There shall be no imprisonment for debt;” and the inquiry then is, does this term include penalties and forfeitures? The insolvent laws which discharge *343from imprisonment from debt expressly except penalties and forfeitures, and they show what was meant by the term debt, when the new Constitution was adopted. The intention undoubtedly was to release the debtor from imprisonment at suit of his fellow, his creditor, but not to affect the State’s jurisdiction over its citizens in the administration of justice for the purpose of punishment. The liberty of this freedom from imprisonment for debt was not designed to be a liberty to do wrong. If such a construction of the Constitution can be maintained, the State is stripped of-all power to administer justice through the instrumentality of moneyed penalties.

Milton Whitney for the appellee,

in support of his motion to dismiss the appeal, argued:

1st. That no appeal lies to this court from any judgment of the Court of Common Pleas. By the 2nd section of the 4th article of the Constitution, the present Court of Appeals is vested with appellate jurisdiction co-extensive with the limits of the State, but to be exercised only in such cases as were then allowed by law to be exercised by the then existing Court of Appeals, “and such other appellate jurisdiction as may hereafter be provided by law.” The act of 1785, ch. 87, provided for appeals from the county courts to the General Court, and by the act of 1804, ch. 55, this appellate jurisdiction was transferred to the Court of Appeals. This appellate jurisdiction is limited to the judgment of the county courts. Such is the jurisdiction vested in this court by the Constitution, and no appellate jurisdiction having been conferred by law, it remains to be seen whether it can entertain such jurisdiction from the judgments of the Court of Common Pleas by virtue of the jurisdiction exercised by the old court from judgments of any county court. This court is a special court created by the new Constitution, and limited in its jurisdiction. No right of appeal from its judgments has been conferred by the Constitution or act of Assembly. It is nowhere spoken of as the successor of any county court, or exercising any jurisdiction of the county court as such. The objects aver which it is to exercise its jurisdiction are specially enum*344erated.- If appellate jurisdiction is to be derived from the fact alone, that it exercises jurisdiction over certain matters heretofore within the jurisdiction of the county court, the same fact would give this court appellate jurisdiction from the decision of a magistrate, for he now exercises jurisdiction over subject matters heretofore within the jurisdiction of the county courts.

2nd. But if such appellate jurisdiction can be exercised, tiren the judgment in this particular case is not such an one as authorises this court to entertain an appeal, because it is not a determination or judgmetii of the court in a civil suit or action within the act of 1785, ch. 87. Lord Coke says “the question is no longer an open one in England,” that a writ of error will not lie upon a decision on a writ of habeas corpus. See 8 Rep. 127, b, Case of the City of London. 8 Mod. 27 Case of the Dean and Chapter of Trinity Chapel. 1 Lord Raymond, 454, Groenvelt vs. Burwell. 3 Brown’s Cases in Par., 506, Pender vs. Herle. In this county the question has been discussed and decided in several cases, which are collected in 1 Amer. Law Rep., 513, where the result of them is slated to be that the American authorities are decidedly against the right-to appeal. But if any doubt remains it must be removed by the case of Bell vs. The State, 4 Gill, 301, where a full court held there was no appeal from an order of the county court upon a writ of habeas corpus, because it was not & judgment of the court in a civil suit or action within the contemplation of the act of 17j35, ch. 87. If this appeal is entertained what judgment is to be reversed? and what is to be done by the court below when the record is remitted ? The party is not in the custody of that court, and how can this court cause a person to be retaken who should, in their opinion have been unduly set at large ? The judges of our courts are authorised to issue writs of habeas corpus in vacation. How then would appeals lie, or on what could they be founded? In such case there is no court, no record, and, it is submitted, could be no judgment as contemplated by the act of Assembly.

But assuming that the appeal will lie, the appellee then insists:

1st. That the Court of Common Pleas had the power to *345issue the writ of habeas corpus, because 1st: — The act of 1853, ch. 238, gives it jurisdiction. 2nd. By virtue of the appellate jurisdiction given to it by the 10th section of article 4th of the Constitution from judgments of justices of the peace, the issuing of the writ of habeas corpus being the exercises of appellate and not original jurisdiction. 7 Pet., 568, Ex-parte Watkins. 1 Cranch, 137, Marbury vs. Madison. 3 Dallas, 17, Ex-parte Hamilton. 4 Cranch, 75, Ex-parte Bollman and Swartwout. 7 Wheat. 38, Ex-parte Kearney. 3 Cranch, 448, Ex parte Burford. 8 Alabama Rep., 427, Ex-parte Chaney. 8 Paige, 47, The People vs. Mercein.

But the appellant cannot urge or rely upon the want of jurisdiction in the Court of Common Pleas to issue the writ, as this point does not appear by the record to have been raised in that court as required by the act of 1825, ch. 117.

2nd. The party was propeily discharged. The remedy prescribed by the act of 1854, ch. 138, is in its form, nature and character, a civil proceeding, and being so, its effects and consequences are the same as those flowing from the institution and prosecution to judgment of any other civil cause according to the laws of Maryland. The remedy is a pecuniary one, made so by statute, and to be collected as other small debts. By the judgment of the justice it became a debt, due, one-half to the State, the other to the informer. “It is a debt inter partes, as much so as an action for money bad and received.” 7 Gill, 321, Day vs. the State. If the party could have been committed at all, it should have been under a capias ad satisfaciendum. The injury done to the State is one of a pecuniary character. The legislature had the right to inflict imprisonment, but did not see proper so to do. The liability to pay a penalty for an offence created by statute (not malum in se,) originates in contract. The party contracts if he violates the law to pay the penalty. 3 Bl. Com., 159. This is a debt made so by statute, decided to be so by the Court of Appeals in 7 Gill, 321. The New Constitution abolishes imprisonment for debt; no exception is made, its language is “no person shall be imprisoned for debt.” If the legislature saw fit to provide a penalty by way of a debt for any violation of (he *346law and not provide for any imprisonment, how can it be said the Slate is left powerless. The legislature has not seen proper in this case to exercise that power which they have in many other penal laws, by adding imprisonment.

3rd. The act of 1854, ch. 138, is unconstitutional and the judgment of the justice was void and not voidable. If it is a criminal proceeding it is void, as it deprives the party of his right of trial by jury. This question'was decided by the Circuit Court of the United States for the district of Rhode Island before Judges Curtis and Pitman, to be found in the Monthly Law Reporter, N. S., Vol. 5, No. 11, page 625 to 627. The Constitution gives no right of appeal except in civil cases instituted before a magistrate, and the act gives no such right, but denies it. If it is a civil proceeding it must be attended with all the incidents of civil proceedings, and the imprisonment was illegal.

4th. The court have the right to decide upon the constitutionality of a law upon habeas corpus. 11 Am. Jurist, 257, 258, and the case of Henrick, Monthly Law Rep., N. S., Vol. 6, No. 11.