Bray v. State

• Decision Date: 02 June 1904
• Parties: BRAY v. STATE.
• Court: Alabama Supreme Court

37 So. 250

140 Ala. 172

BRAY v. STATE.

Supreme Court of Alabama

June 2, 1904

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Petition for habeas corpus by Jim Bray to secure release from detention by the chief of police of the city of Montgomery. From an order remanding him to custody, he appeals. Affirmed.

W. S Reese, for appellant.

Massey Wilson, Atty. Gen., and Ray Rushton, for the State.

HARALSON J.

The petition in this case was a statutory proceeding of habeas corpus. It was addressed and presented to the judge of the city court of Montgomery as an officer and magistrate.

The petition charged that the petitioner was imprisoned by the chief of police of the city of Montgomery, and the writ when granted by the judge was addressed to A. Gerald, chief of police of said city.

Section 4828 of the Code of 1896, prescribes the form and contents of the return, in substance, that if made by a public officer in his official capacity, it may be done by him without verification, and must state plainly and unequivocally whether the party is in his custody or restrained, and if so by what authority, and the cause thereof, setting out the same fully, together with a copy of the writ, warrant or other authority, if any.

Section 4832 provides for a traverse of the return, if the petitioner desires to question the correctness of the same. Unless traversed, therefore, if the petitioner moves to quash the return, it will be taken as true, and the question of illegal imprisonment will be tried, as a matter of law, on the facts stated in the petition. Ex parte Hunter, 39 Ala. 560; 9 Ency. Pl. & Pr. 1052, § 5.

The writ is not revisory, answering the purpose of an appeal, and will not lie to correct errors or irregularities in the judgment of courts of superior or inferior jurisdiction. To entitle the prisoner to the writ and discharge under such judgment, it must be, not merely voidable, but void for an excess of jurisdiction on the face of the proceedings. When therefore, the judgment or sentence of another court is returned, as the cause of the prisoner's detention or imprisonment, the jurisdiction of the court to render that judgment is the only matter that can be enquired into, and mere irregularities or errors in the proceeding are not available. Ex parte Bizzell, 112 Ala. 210, 21 So. 371.

The return of the chief of police showed, in substance, that, theretofore, the city council of Montgomery had passed ordinances, numbered 327, 1147 and 1176, which were set out in full; 327 establishing the rates allowed to be charged for public vehicles; 1147 providing that any person who refused to pay the owner or driver of any public vehicle, or any licensed surrey, dray or wagon, the rate fixed by law (section 327), for services rendered, must, on conviction be fined not less than $1, nor more than $100, and section 1176 providing, that on the conviction of any person for any violation of the by-laws or ordinances of the city of Montgomery, whether such ordinances provide a special punishment or not, he "may be punished by fine or imprisonment, or by fine and imprisonment, or by hard labor upon the streets or public works of the city, either or all," etc., "provided that no fine shall exceed one hundred dollars and no punishment or hard labor shall exceed six months."

Said return also set out, the affidavit of Charles Reeves, made before J. G. Thomas, sergeant of said city, duly charging that the defendant on or about the 10th of November, 1903, within the limits of said city, and within the police jurisdiction thereof, did refuse to pay the driver or owner of a public hack, for services rendered, the rate fixed by law, in violation of section 1147 of the city code; that a warrant of arrest was duly issued thereon by the sergeant of police, addressed "To Any Lawful Officer of the State," commanding that he forthwith arrest the defendant and bring him before the recorder of the city of Montgomery.

It further appeared, that under said warrant, the defendant was duly arrested, carried before and tried by the recorder, who after hearing the testimony in the cause, made an order therein, after stating the case and the charge against the defendant, that "the defendant appeared in open court in his own proper person, the cause was heard and the defendant found guilty and sentenced to hard labor for six months," which order was signed, "A. H. Arrington, Recorder."

The judge of the city court, on hearing of the habeas corpus proceeding, entered the following order: "On examination of the return of A. Gerald, chief of police of the city of Montgomery, there being no evidence outside of it, the petitioner is remanded to the custody of A. Gerald, chief of police as aforesaid, for the execution of the sentence against him," which order was signed by the judge as such. It was also further ordered by said judge, that the petitioner might be released, pending an appeal to the Supreme Court, on giving bond to the city in the sum of $200.

Counsel for petitioner questions the legality of his imprisonment on the grounds, that the charter of the city of Montgomery of 1893 (Acts 1892-93, p. 368), which provides for the election of a recorder, and prescribing his duties, was never constitutionally enacted, and, therefore, that the judgment of conviction under which the petitioner is imprisoned, was by one who had no authority to try and punish him. Conceding the recorder to have been a legally appointed officer, the imprisonment is further questioned on the grounds, that it was imposed for the nonpayment of a debt, forbidden by the Constitution, and the petitioner was tried and found guilty by the recorder alone, and was deprived of a trial by jury.

Where the question of the constitutionality of a statute is distinctly presented, and is necessary to the decision of the particular case, the courts do not hesitate to decide the question; but upon such questions courts do not enter, when the case before them can be determined on other grounds. Smith v. Speed, 50 Ala. 277; Joiner v. Winston, 68 Ala. 129; Hill v. Tarver, 130 Ala. 592, 30 So. 499.

The question of the illegal restraint of the liberty of the petitioner may be determined on other grounds, than the alleged unconstitutionality of the charter of said city, and there is no necessity to enter upon a discussion of that question.

The insistence is urged, that there are but two charters granted to the city, those of 1837 and of 1893, and the latter being unconstitutional, the former is without provision supportive of the acts of the recorder. But this contention is without merit as will be shown.

Under the charter of 1837 the mayor and aldermen were authorized to pass ordinances and by-laws and to levy fines for their breach not exceeding $50 and were clothed with the powers and authority of justices of the peace. The mayor was required to keep an office and hear and determine upon all causes for breach of the ordinances and by laws of the city. This original act was amended at different times by different Legislatures, from 1839 to 1868.

On March 3, 1870 (Acts 1869-70, p. 338), an act was approved entitled "An act to amend the charter of the city of Montgomery, and the various laws heretofore passed amending the said charter." This act set out at length and in full, not only the act of 1837, incorporating the city, but each one of the acts passed in subsequent years thereto. After reciting these various acts, setting them out at length, the said act of 1870, sets out in lieu of said various acts, what purports on its face to be, and is in fact, a new charter for said city. It is a full and complete act within itself for that purpose. It is not subject in its enactmen...