Ex parte Parker

• Decision Date: 01 February 1876
• Citation: 6 S.C. 472
• Court: South Carolina Supreme Court
• Parties: Ex parte PARKER.

6 S.C. 472

Ex parte PARKER.

Supreme Court of South Carolina.

Feb. 1, 1876.

BEFORE MACKEY, J., AT RICHLAND, AUGUST, 1875.

This was a petition by N. G. Parker to the Hon. Thomas J. Mackey, Judge of the Fifth Circuit, stating that the petitioner was illegally detained in custody by the Sheriff of Richland County, and praying for a writ of habeas corpus. The writ was issued at Columbia on the 13th of August, 1875, and on the 16th of the same month, at the same place, the return was made and the petitioner discharged from custody.

The facts of the case, so far as they relate to the only question considered by this Court, are so fully stated in the opinion of the Court as to render any further statement unnecessary.

Rion, for appellant.

Youmans, contra.

The opinion of the Court was delivered by WILLARD, A. J.

This is an appeal brought by the Attorney General in behalf of the State from an order made by the Hon. T. J. Mackey, Circuit Judge of the Sixth Circuit, upon a writ of habeas corpus issued by him in the Fifth Circuit to inquire into the cause of the detention of N. G. Parker, held in confinement in the city of Columbia, within the Fifth Circuit, by which the detention of Parker was held to be illegal, and he was released from confinement.

It appeared by the return of the Sheriff of Richland County to the writ that Parker was held by him under two several orders of arrest signed by D. B. Miller, Esq., Clerk of the Court of Common Pleas and General Sessions for the County of Richland. The first of these orders of arrest was made in an action in which D. H. Chamberlain and others, Commissioners of the Sinking Fund, were plaintiffs, and N. G. Parker was defendant, bearing date April 21, 1875. The other order of arrest was made in an action in which the State was plaintiff and N. G. Parker defendant, and was dated April 22, 1875.

The brief sets forth this history of the two cases referred to as appearing by the records in the office of the Clerk of the Court; but it will not be necessary to refer particularly to the various proceedings in these cases, as an objection has been interposed, going to the authority of the Circuit Judge to issue the writ of habeas corpus, which, under the view taken of it by this Court, disposes of all questions properly before us under the present appeal. It is proper, however, to notice that the action brought by the Commissioners of the Sinking Fund was discontinued, on motion of the Attorney General, July 21, 1875, prior to the issuing of the writ of habeas corpus. It follows, therefore, that at the time of the issuing of the writ the order of arrest made in the action of the State vs. N. G. Parker was the only authority for detention then in operation.

It is contended that the Circuit Judge of the Sixth Circuit could not issue a writ of habeas corpus within the Fifth Circuit. On the other hand, it is contended that the authority of the Circuit Judges to issue writs of habeas corpus is not limited to writs issued within their Circuits, but that such writs may be issued by any Circuit Judge in any part of the State where he may chance to be present. It is also argued that, inasmuch as the Circuit Judge of the Fifth Circuit was at the time absent from his Circuit, the Circuit Judge of the Sixth Circuit, that being an adjoining Circuit, had authority, and was bound by law, to issue a writ within the last named Circuit, if application was made to him for such writ on proper grounds, while temporarily present within the territorial limits of the last named Circuit.

We will proceed to consider the force of this objection and the arguments directed against it.

The provisions of the Constitution directly bearing on this question are contained in Sections 13 and 14 of Article IV, and are as follows:

“SECTION 13. The State shall be divided into convenient Circuits, and for each Circuit a Judge shall be elected by joint ballot of the General Assembly, who shall hold his office for a term of four years, and during his continuance in office he shall reside in the Circuit of which he is Judge.

SEC. 14. Judges of the Circuit Court shall interchange Circuits with each other, in such manner as may be determined by law.”

Under Section 13 the State was divided by the Legislature into eight Circuits, and Judges were elected for each Circuit, as prescribed by the Constitution.

Opposite views have been entertained of the force of Section 14. On the one hand it has been contended that, independent of this Section, the Circuit Judges possess authority to exercise their powers as Judges beyond their Circuits to any extent that might be permitted by acts of legislation. On the other hand, it has been contended that, independent of Section 14, they could exercise no authority whatever beyond the territorial limits of their respective Circuits. It will not be necessary to determine which of these opinions has the soundest basis in order to place a construction on Section 14 that will be sufficient to dispose of all the questions arising in the present case. It will be sufficient if it be found that the true intent of Section 14 was to restrain the authority of the Circuit Judges to action taken within the territorial limits of their respective Circuits, except where authorized by statute to perform duties beyond those limits. The question is one exclusively relating to the place where judicial duties ought to be performed, and not of any territorial limitation of the force of such acts when rightfully performed.

The fourteenth Section contains a positive mandate enforcing a general duty of interchange, under the words “shall interchange Circuits with each other,” and a direction by which that duty may be made specific and determinate, under the words “as may be determined by law.” The mandate, whether intended to call into existence, as original, the duty of interchange, or to enforce that which, independently of it, might be inferred from the nature of the office and other provisions of the Constitution establishing it, clearly gives expression to the whole duty of the Circuit Judges as it regards interchange of Circuits, and subjects that duty to such provisions of law as should thereafter be enacted to render it specific and determinate. The word “shall,” to the same extent that it confers or recognizes a general duty of the Judges, confers on the Legislature the right to prescribe the mode and manner of its exercise, and this implies the right to say when and under what circumstances it shall not be binding. Inasmuch as, from the nature of the judicial office, the right to exercise judicial powers is always commensurate with the duty governing their exercise, it follows that the entire right and duty of interchange as between the Circuit Judges is subjected by the Constitution to the control of the Legislature. It also follows that if the Legislature undertakes to exercise the power and prescribes certain cases and modes in which such interchange may take place, it must be regarded as withholding its...