Ex parte Small
| Decision Date | 26 July 1950 |
| Docket Number | No. A-11428,A-11428 |
| Citation | 221 P.2d 669,92 Okla.Crim. 101 |
| Parties | Ex parte SMALL. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. In habeas corpus proceeding, petitioner cannot be discharged, unless the court under whose authority he was imprisoned, was without jurisdiction and its judgment for some reason void, however numerous and gross the errors may have been at trial. The writ of habeas corpus can not take the place of an appeal.
2. Whether or not petitioner has or has not used the sanitary and DDT spraying service provided by the City of Hugo cannot be raised in habeas corpus proceeding, for the reason that petitioner was found guilty in the police court of Hugo of violating Ordinance 412 by failure to pay the garbage collection and DDT spraying fee levied upon petitioner for the preceding month. The judgment of conviction, regular on its face, conclusively presumes in collateral attack, that there was sufficient evidence before the trial court to sustain the conviction; this includes the presumption that petitioner did receive the service mentioned in the ordinance.
3. A municipality under its police power may, within constitutional limitations, determine what is dangerous and injurious to public order, safety, health, morals and general welfare of the community.
4. Where inhabitants of city adopt by referendum vote an ordinance to protect the public health and safety of the people, the courts will presume that a state of facts existed which made the passage of the act necessary, and will seek to uphold such ordinance.
5. Section 19 of Ordinance 412 of the City of Hugo provides for a fine for non-payment of the fee assessed for handling garbage, trash, ashes and for DDT spraying service; sections 116-117 from Chapter XVI, Article I, provide for imprisonment for non-payment of the fine assessed, and these provisions are found to be in harmony with the applicable general state statutes, Tit. 11 O.S.A. § 721 and § 722.
6. A person serving out a fine and costs would be entitled in accordance with Tit. 28 O.S.A. § 101, state statutes, construed in connection with Sections 116 and 120 of Ordinance 412 of the City of Hugo, to a credit of $1.00 per day when not working, but when required to work would be entitled in accordance with Tit. 11 O.S.A. § 74, which statute would prevail over the city ordinance, to the sum of $2.00 per day for each day's work.
7. Ordinance 412 enacted by the electorate of the City of Hugo, and providing for the collection of garbage, trash, ashes, and for DDT spraying service, and providing for the payment of a service charge, and further providing for a penalty on conviction of the violation of the terms of said ordinance, including non-payment of the service charge, was not void on ground that it provided for 'imprisonment for debt', since there was no imprisonment for debt, but merely punishment for violation of law.
8. The immunity from imprisonment for debt contemplated and provided in Art. 2, § 13 of the Constitution has application to, and is limited to, debts arising out of contract, and does not extend to and include a fine and costs imposed by the municipality for the willful neglect or refusal to comply with the public duty imposed upon the petitioner by the terms of the ordinance upon which the prosecution was based.
Jenner & Bradley, Hugo, for petitioner.
James Bounds, City Attorney of City of Hugo, for respondent Fred White, Chief of Police of City of Hugo, Okl POWELL, Judge.
Fred Small has filed a petition in this court seeking a writ of habeas corpus. He alleges that he is unlawfully imprisoned and restrained in the city jail of Hugo, Oklahoma, by Fred White, Chief of Police, and that the cause of his restraint is his failure to pay the garbage collection and DDT spraying fee levied upon petitioner for the preceding month, as provided by City Ordinance No. 412, of the City of Hugo. A copy of the ordinance in question is attached to the petition, as is a copy of the criminal warrant issued by the Judge of the Police Court, City of Hugo, together with a transcript of evidence of various witnesses for petitioner and respondent given at a hearing before the District Court of Choctaw County, where petitioner first sought his release from detention on the charge above stated, and where his efforts were unsuccessful. Hence the petition to this court.
After the petition was filed here, we issued rule to show cause, and thereafter response was filed, and this court has had the benefit of oral argument of counsel for the parties in support of their contentions. And respondent, in accordance with agreement between the parties at time of oral argument, has furnished this court with a certified copy of ordinance No. 357, of the City, of Hugo, passed and approved July 15, 1941, which ordered a revision, compilation, and publication of the General Ordinances of said City; also certified copy of excerpts, being Sections 116, 117 and 120, from Chapter XVI, Article I of said Revised General Ordinances, adopted November 4, 1941; also excerpt, being Section 16, from Chapter XVIII, Article I of said Revised General Ordinances.
Respondent points out that the ordinance in question is not attacked on the ground that it is a revenue producing measure or that it is not within the power of the city to establish a garbage disposal and DDT spraying system, and responds to the single issue of the constitutionality of the penalty provision of Ordinance No. 412, under and by the terms of which a person may be confined to jail for failure to pay a fine after conviction for non-payment of garbage and DDT spraying fee fixed by ordinance. But petitioner in his brief enlarges the issue somewhat by advancement of some ingenious points not suggested as grounds in petition, and which respondent fails to treat.
In considering Ordinance No. 412, we see no useful purpose in setting the same out in total, as no complaint is made as to the technical structure, but only as to the effect of the ordinance. Suffice to say, the ordinance is comprehensive in its provisions, containing twenty sections. As indicated in the heading, and as agreed to by the parties at the time of oral argument, this ordinance was adopted by the citizens of Hugo at a special election at which the question was submitted, and thereafter the ordinance was attacked by initiative petition, but was sustained by a vote of the people. The heading reads:
'An ordinance relating to sanitation; creating a board of sanitation for the city of Hugo, Oklahoma, and providing for its membership and designating its duties; providing for the collection and removal of garbage, trash and refuse within the corporate limits of the city of Hugo, Oklahoma, other than from within the fire limits thereof, which are covered otherwise by ordinance; providing for the care and handling of the same pending removal; providing for the setting and collection of fees for the removal of garbage, trash and refuse; providing for DDT spraying within the corporate limits of the city of Hugo, Oklahoma, including the fire limits thereof; providing for the setting and collection of fees therefor; providing penalties for the violation of the provisions of this ordinance; and declaring an emergency; and whereby the said question is submitted to a vote of the qualified electors, residents and citizens of said city at a special election called at which such question shall be submitted.'
Sections 18 and 19 read:
'Section 18. For the purpose of defraying the expenses of collection and removal of garbage, trash and refuse, and DDT spraying as in this ordinance provided for, the following fees, which shall be paid by the owner of the premises involved, if occupying or in possession of the same, or the lessee or tenant thereof in occupancy or possession of the same, shall be charged:
'Per month
Each apartment 70cents
Small dwellings (2 rooms or less) 70
Large dwellings (3 rooms or more) 80
(Outhouses and out-structures included in above fees.)
The excerpt from Chapter XIV, Article I, supra, reads:
Also the excerpt from Chapter XVIII, Article I, supra, reads:
Respondent also cites Tit. 11 O.S.A. § 721, which provides: 'If the defendant plead or be found guilty, the police judge shall declare and...
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