Ex parte De Hay

• Decision Date: 20 September 1872
• Citation: 3 S.C. 564
• Parties: EX PARTE DE HAY.
• Court: South Carolina Supreme Court

3 S.C. 564

EX PARTE DE HAY.

Supreme Court of South Carolina.

Sept. 20, 1872.

On and before the 9th of March, 1872, Fairfield County formed part of the Fourth Judicial Circuit, and its Courts of Sessions were required to be holden on the 2d Mondays of March, July and November. By an Act of that date it was annexed to the Sixth Judicial Circuit, and its Courts of Sessions required to be holden on the 1st Mondays of April, August and December. On the 2d Monday of March, 1872, being the 11th day of the month, the Judge of the Fourth Circuit opened the Court. H was indicted for escape, tried and convicted, and at a Court holden on the 1st Monday of April of the same year, by the Judge of the Sixth Circuit, he was sentenced to ten years' confinement in the Penitentiary, where he was now detained in virtue of the supposed sentence: Held, on habeas corpus, that the whole proceeding was without authority of law and void, and H was ordered to be restored to the custody of the Sheriff of Fairfield County, to be by him safely kept until duly discharged.

Unless it be otherwise provided by law, an Act takes effect from the time of its passage.

From the time of the passage of the Act of the 9th of March, 1872, it constituted the only law under which the Courts of Fairfield County could be held.

The proceedings of a Circuit Court, held by the Judge of another Circuit, at a time unauthorized by law, are void.

Petition by Theodore De Hay, to the Supreme Court, for a writ of habeas corpus, to be directed to the Superintendent of the Penitentiary. The writ was issued and the case heard upon the petition and return. The facts are stated in the opinion of the Court.

C. D. Melton, for petitioner.

Chamberlain, Attorney General, contra.

The opinion of the Court was delivered by

MOSES, C. J.

It appears that under the provisions of the General Statutes, (p. 519,) the Judge of the Fourth Circuit commenced the term of the Court of Sessions for the County of Fairfield at Winnsboro, on the second Monday of March, 1872, it being the eleventh day of that month. The grand jury, which had in due form been summoned by a venire, was organized, and presented a bill against the prisoner, Theodore De Hay, for an escape, on which he was tried and convicted. Sentence not having been imposed before the adjournment, it was passed upon him by Judge Thomas, at a Court of Sessions held by him for the same County, on the first Monday in April succeeding, committing him to the Penitentiary for the term of ten years, and he now seeks a discharge by writ of habeas corpus, averring that the supposed judgment and the proceedings at the term of his alleged trial and conviction, were without warrant of law and void.

By the 17th Section of the Code of Procedure, (General Statutes, 519,) the County of Fairfield was placed in the Fourth Circuit, and by the 21st Section, the Court of Sessions for the said County was required to be held at Winnsboro, on the second Monday of March, July and November. By the Act of March 9, 1872, (15 Stat., 146,) entitled “An Act to amend sundry Sections of the Code of Procedure relating to the Circuit Courts,” it was declared that Fairfield County should constitute part of the Sixth Circuit, and that the Court of Sessions for the said County should be held on the first Monday of April, August and December, and that all writs and processes then already issued, returnable to the Courts according to the laws heretofore of force, shall be legal and valid for the Courts to be held according to the provisions of said Act, and all persons summoned, or to be summoned as jurors, witnesses, or bound or to be bound by recognizance to appear at any of said Courts, according to laws heretofore of force, shall appear at the Courts to be held according to the provisions of this Act.

Unless the time when a statute is to take effect is fixed by some constitutional or legislative requirement, it has validity from the moment of its passage. This is the accepted rule too long recognized to be questioned.— Arnold vs. United States, 9 Cranch, 119;Mathews vs. Zane, 7 Wheat., 217; State vs. The Banks, 12 Rich., 616; 1 Kent, 458. The Act, therefore, of 9th March, 1872, was the only one after its passage in force, under which the Court of General Sessions for said County could be held, unless, as is contended, “that the old Act being repealed by implication, must be allowed to operate until it comes in conflict with the Act of March 9, 1872, by some term prescribed by the latter Act coming on in the County.”

A statute can only be repealed by implication to the extent of its repugnancy, or so far as the provisions of the old statute are incompatable with the new, and is never held repealed unless the repugnancy is plain and unavoidable, or unless the later Act takes some notice of the former, plainly indicating an intention to abrogate it. These are but conclusions from authorities so well known that they need not be referred to. To reconcile the Acts in question would test the never-ceasing exertions of human ingenuity, without avail. To say nothing of the title of the Act of March, 1872, the whole scope and effect of all its provisions in relation to writs and processes issued, and jurors and witnesses summoned, “according to the laws heretofore of force,” shew the intention of repeal too strong to be resisted.

The Act does not necessarily involve “absurd consequences or those against common reason;” in fact, it might not be very unreasonable to suppose that a statute, passed on the 9th of the month, affecting the sitting of a Court, to be held at a Court House, only thirty miles distant from the capitol, should not be known at the County seat in which it was located, by the eleventh, for if then known, the presumption is that the Court would not be called.

There is nothing in any of the Sections of the Act to shew that it was not to go into operation until one term should be held as directed by it. A contrary intent is plain upon the face of it. It changed the composition of all the Circuits but two, and as to Fairfield County, transferred it from the Fourth to the Sixth. If it be not adjudged to supersede the direction of the Code in the particular under consideration, then Fairfield was to be at the same time both in the Fourth and the Sixth Circuits. If the two Acts were of force, Fairfield would have six instead of three terms, half of which would be held by the Judge of the Fourth Circuit, and the other half by the Judge of the Sixth. The two enactments as to Fairfield County cannot stand. The one absolutely destroys the other. They cannot be reconciled, for the repugnancy is too manifest.

It was claimed, in the argument, that the General Statutes (which includes the Code of Procedure) are inoperative, because Section 2 of Chapter 146 declares “that they shall take effect and go into operation from and after the...