Ex parte Adams

• Decision Date: 09 February 1911
• Citation: 54 So. 501,170 Ala. 105
• Parties: EX PARTE ADAMS.
• Court: Alabama Supreme Court

54 So. 501

170 Ala. 105

EX PARTE ADAMS.

Supreme Court of Alabama

February 9, 1911

Appeal from Probate Court, Pike County; A. C. Edmundson, Judge.

Petition for habeas corpus by Hill Adams for his discharge under a judgment adjudging him guilty of violating an ordinance of the city of Troy. From an order denying the writ and remanding petitioner, he appeals. Affirmed.

A. G Seay, for appellant.

Foster Samford & Carroll, for appellee.

SAYRE J.

Appellant being charged in the recorder's court of the city of Troy with a violation of a municipal ordinance, the recorder, or the mayor sitting as recorder, using a blank form printed upon his docket, entered judgment as follows: "Defendant pleads______guilty. On hearing the evidence the court is of the opinion that the defendant is ______ guilty. It is considered and adjudged by the court that the defendant is ______ guilty, and is fined $100.00 and $2.00 costs, and is sentenced to 180 days extra at hard labor for the mayor and councilmen of Troy. The fine and costs not being presently paid, or judgment confessed therefor as provided by law defendant is sentenced to hard labor for the mayor and councilmen of Troy ______ days to pay fine ______ to pay costs." This sentence, authenticated by the mayor's signature, was passed on February 21, 1910. On June 2d, following, appellant sued out a writ of habeas corpus to procure his discharge upon the ground that he was being unlawfully restrained of his liberty. At the hearing he was remanded; hence this appeal.

This court, concurring with all others, holds that the writ of habeas corpus cannot be made to do service for an appeal or writ of error, and that the writ is not addressed to questions of error or irregularity, but to the question whether the judgment and sentence under which the petitioner is held is a mere nullity. Ex parte Simmons, 62 Ala. 416; Ex parte Roberson, 123 Ala. 103, 26 So. 645, 82 Am. St. Rep. 107; Ex parte Bizzell, 112 Ala. 210, 21 So. 371.

Since the adoption of the Code of 1907, the name and style of the prosecuting municipality has been the "City of Troy," and there is no corporation now known as the "Mayor and Councilmen of Troy." If an ample judgment and sentence required that the beneficiary of the labor to be performed by the defendant should be correctly stated, the judgment and sentence pronounced was defective in this respect. But the mayor and councilmen exercise for the city the legislative, executive, and judicial powers conferred upon the incorporated municipality, or such of those powers as are executive or judicial are exercised by their duly elected or appointed officers and agents. Under the judgment and sentence imposed in this case there can be no plausible pretense that appellant was sentenced to pay a fine to, or perform hard labor for, the individuals filling the offices of mayor and councilmen, and at most the sentence was irregular only.

Section 1216 of the Code of 1907 provides that: "The recorder trying any person for violation of any by-law or ordinance of the city shall, upon conviction of such person, have the power to fine and imprison him, and to sentence him to hard labor upon the streets or public works, or in the workhouse or house of correction of the city; and, in the event fine and costs are not presently paid, to require the offender or person thus in default, to work out the fine and costs under the direction of the city authorities, allowing not exceeding one dollar for each day's service; provided, that no fine shall exceed one hundred dollars, and no...