Ex parte Hollman

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWOODS, J.
Citation60 S.E. 19,79 S.C. 9
PartiesEx parte HOLLMAN.
Decision Date16 January 1908

60 S.E. 19

79 S.C. 9

Ex parte HOLLMAN.

Supreme Court of South Carolina

January 16, 1908

Jones, Klugh, Prince, Hydrick, and Eugene B. Gary, JJ., dissenting in part.

Habeas corpus by Jack Hollman. Prisoner discharged.

R. B. Herbert and Christie Benet, for petitioner.

W. H. Parker, for the State.


Under habeas corpus proceedings, Jack Hollman has applied to this court for release from imprisonment, alleging the statute under which he was convicted and sentenced to be unconstitutional. The position that the unconstitutionality of a statute cannot be tested under a writ of habeas corpus is maintained by some courts of high authority, but it is opposed to the weight of reason and precedent. There is no [79 S.C. 11] difference of opinion that a writ of error, or the statutory appeal, cannot be supplanted in criminal procedure by resort to the writ of habeas corpus for the correction of mere errors of law. But the distinction is that the courts are bound to treat unconstitutional enactments as void in whatever proceedings they may be encountered. An unconstitutional statute, though having the form and name of law, is in reality no law, and the courts must liberate one suffering imprisonment under it just as if there had never been the form of trial, conviction, and sentence. The office of the writ of habeas corpus is to liberate those who are imprisoned without authority of law. While the point was not discussed, this must have been the view of the court in State v. Higgins, 51 S.C. 51, 28 S.E. 15, 38 L. R. A. 561, and Ex parte Keeler, 45 S.C. 537, 23 S.E. 865, 31 L. R. A. 678, 55 Am. St. Rep. 785, for the court considered under habeas corpus the constitutionality of the statutes under which the petitioners were held, and rested its decision in both cases on the determination of that question. This is the view of the Supreme Court of the United States.

Ex parte Siebold, 100 U.S. 375, 25 L.Ed. 717; Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110. The numerous other authorities to the same effect will be found collated in 87 Am. St. Rep. 175, note; Hovey v. Elliott, 145 N.Y. 126, 39 N.E. 841, 39 L. R. A. 449; 21 Cyc. 302; 15 A. & E. Enc. 169. We proceed, therefore, to consider the constitutionality of the statute to determine whether the petitioner should be released.

Section 357 of the Criminal Code of 1902, the statute under which the petitioner was convicted, and which is here attacked, is as follows: "Any laborer working on shares of crop or for wages in money or other valuable consideration under a verbal or written contract to labor on farm lands, who shall receive advances either in money or supplies and thereafter willfully and without [60 S.E. 21] just cause fail to perform the reasonable service required of him by the terms of the said contract shall be liable to prosecution for a misdemeanor, and on conviction shall be [79 S.C. 12] punished by imprisonment for not less than twenty days nor more than thirty days, or to be fined in the sum of not more than twenty-five dollars nor more than one hundred dollars in the discretion of the court: Provided, the verbal contract herein referred to shall be witnessed by at least two disinterested witnesses."

The first question is whether this statute violates section 24 of article 1 of the state Constitution, which provides: "No person shall be imprisoned for debt except in cases of fraud." The act refers exclusively to a farm laborer working for a consideration under a contract, who (1) "shall receive advances in money or supplies, and (2) thereafter willfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract. "It will be observed the statute does not require for the completion of the crime, proof of the making of the contract and the obtaining of the advances on the faith of it with the intention formed at the time not to perform the service. Such action as that on the part of the laborer would be fraudulent, and a statute providing for its punishment would not violate a constitutional provision allowing imprisonment for debt in cases of fraud. But the act under consideration provides imprisonment as a punishment for conduct after the contract has been made and the work begun, and the important inquiries are, first, is the conduct so made criminal a failure to pay a debt? and, second, is such conduct consistent with good faith, with entire absence of fraud? If these inquiries are to be answered in the affirmative, then it follows the acts should be declared unconstitutional as providing for imprisonment for debt without proof of fraud. The case of State v. Brewer, 38 S.C. 263, 16 S.E. 1001, 19 L. R. A. 362, 37 Am. St. Rep. 752, holding constitutional the statute authorizing the imprisonment of one convicted of bastardy who fails to give the bond required by law, has no application, for the court expressly held the penalty not to be a debt, but a punishment for the crime of bastardy. If, [79 S.C. 13] however, we follow the cases (State v. Williams, 32 S.C. 124, 10 S.E. 876; State v. Chapman, 56 S.C. 420, 34 S.E. 961, 76 Am. St. Rep. 557; State v. Easterlin, 61 S.C. 71, 39 S.E. 250), then this act must be upheld. In the first case such legislation was held constitutional, the court saying: "If the General Assembly sees proper to make the violation of a particular species of civil contracts a criminal offense, we are unable to discover in the provisions of the Constitution anything which forbids such legislation." In State v. Chapman this very statute was sustained against the charge that it was discriminatory in favor of the landlord against the laborer, but no reference is made to the question of imprisonment for debt. In State v. Easterlin the statute was held not to provide imprisonment for debt, and the court said: "Even if it should be so construed, the offense made punishable involves an element of fraud." Nothing short of strongest conviction of fundamental error should induce the court to essay a review of the conclusions embodied in these cases. We shall not discuss at length the doctrine of stare decisis. It seems obvious it has less force when the constitutional rights of the citizen to his personal liberty are involved than in those cases involving the fixedness of property rights and the regularity of procedure. With the profoundest respect for the judges who delivered and concurred in these opinions, we cannot avoid the conclusion that the statute in question provides for imprisonment for debt without proof of fraud, and therefore attempts to deprive the citizen of one of the personal rights guaranteed by the Constitution of the state. The mere receipt of money or supplies advanced by the employer cannot make the laborer anything more than a debtor to the employer, and without doubt the repayment of the money or the value of the supplies advanced puts an end to the legal obligation and the relation of debtor and creditor. The statute does not go to the extent of requiring the laborer to pay the advances in labor, and therefore there is nothing to prevent his discharge of the debt for advances [79 S.C. 14] in the same manner as other debts are discharged. It is equally clear that the service due by the laborer under the contract is also a debt within the meaning of the Constitution. Debt is that which is due from one person to another, whether money, goods, or services, and whether payable at present or at a future time. Century Dictionary; 13 Cyc. 399, and authorities cited. The term "debt," within the meaning of the Constitution, is generally held to embrace obligations arising out of contract, and to exclude liability for tort and for fines imposed for crime. Carr v. State, 34 L. R. A. 634, note; State v. Brewer, 38 S.E. 263, 16 S.E. 1001, 19 L. R. A. 362, 37 Am. St. Rep. 760. Therefore, beyond dispute, the laborer referred to in the statute falls under the terms of the Constitution as a person who by his contract incurs a debt for advances received by him and for labor which he promises to perform. For the mere failure to discharge these debts the Constitution forbids his imprisonment. If, however, the laborer contracts such a debt fraudulently or fraudulently avoids the discharge of it, he falls without the protection of the Constitution.

The vital question then is, whether the statute contemplates conviction only for fraudulent breach of the contract-fraudulent failure to pay the debt of service. This inquiry depends upon whether one who shall "willfully and without just cause fail to perform the reasonable service required of him [60 S.E. 22] by the terms of the said contract" is necessarily guilty of fraud; for, if not, then a laborer may be convicted and imprisoned for debt under the statute, without proof of fraud. It is not willful nor intentional injustice the statute makes criminal, but willful and unjust failure to carry out a contract. This distinction is vital. Clearly a laborer may willfully refuse to perform the service required. His refusal may be unjust, and the service required may be reasonable, that is, such as he contracted to give, and yet his action be free from fraud and taken with the utmost good faith in the sincere belief that his refusal was just and [79 S.C. 15] the service required unreasonable under the terms of the contract. Yet, however completely he may show his good faith, and however fully the court and jury may be convinced of his good faith, conviction must follow, unless the jury think he had just cause to abandon the contract, or that the service required was not reasonable. Willful and unjust failure to perform a contract does not necessarily connote fraud. Bad faith is the test. One may willfully or intentionally abandon a contract under a bona fide claim of right without being subject to the charge of fraud, though in fact the other party had not impaired his right to require...

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