Ex parte Thomas

• Decision Date: 27 January 1897
• Parties: EX PARTE THOMAS.
• Court: Alabama Supreme Court

21 So. 369

113 Ala. 1

EX PARTE THOMAS.

Supreme Court of Alabama

January 27, 1897

Application by John Thomas for a writ of habeas corpus. Application denied.

R. B Evins, J. B. Hendon, and J. H. Stewart, for petitioner.

Wm. C Fitts, Atty. Gen., for the State.

BRICKELL C.J.

At the fall term, 1896, of the circuit ourt of the county of Perry the prisoner was convicted of the offense of grand larceny and was sentenced to hard labor for the county for a term of 12 months, and, judgment for the costs not having been confessed, to serve an additional period in payment of them. Proceeding on the theory that the circuit court had not power or jurisdiction, on a conviction of grand larceny, to sentence to hard labor for the county,-that it was not a legal punishment for the offense,-application was made, on habeas corpus, to a judge of the circuit court, for the discharge of the prisoner from the custody of the hirer of county convicts. The application was refused by the circuit judge, and is now renewed in this court.

The statute (Cr. Code, § 3789) defines and describes "grand larceny," and its concluding clause is that on conviction the offender "must be imprisoned in the penitentiary for not less than one year, nor more than ten years." A succeeding section declares, "The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state and death by hanging." The last clause of the section reads, "And in all cases in which the imprisonment or sentence to hard labor is twelve months, or less, the party must be sentenced to be imprisoned in the county jail, or to hard labor for the county." Id. § 4492. The proposition advanced in support of the application is that this section is amendatory of the preceding section, declaring that the punishment of grand larceny must be imprisonment in the penitentiary, and is violative of the clause of the second section of the fourth article of the constitution providing that "no law shall be revised, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revised, amended, extended, or conferred, shall be re-enacted and published at length." This clause of the constitution has been the matter of frequent interpretation and construction. The exposition of the evil in legislation it was intended to prevent, made by Judge Cooley, has been generally, if not universally, accepted: "The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty of making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was perhaps sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation." Cooley, Const. Lim. 181; People v. Mahaney, 13 Mich. 497. A code or body or system of law, adopted or enacted by a single act of the general assembly, though it may contain inconsistent or repugnant provisions, or one section or part may be modified, and, to the extent of the modification, controlled, by another, is not within the letter or spirit of the mandate of the constitution. It is not within the legislative evil it is designed to remove, nor can it be supposed that it was within the contemplation of the framers of the constitution. Though, for convenience, the Code is published in two volumes,-the one pertaining entirely to that which may be termed "civil," and the other to that which may be termed "criminal," legislation,-it was adopted by a single act, entitled "An act to adopt a code of laws for the state of Alabama." Code, p. 1. The generality of the title of the act is expressly authorized by the constitution; the authorization probably proceeding from abundant caution, for in the first construction of the constitutional requirement, that each law should embrace but one subject, which should be described in its title, it was said by A. J. Walker, C.J.: "The constitution requires that only one subject should be embraced, and that it should be described in the title. 'Subject' is a very indefinite word. A phrase may state the subject in a very general or indefinite manner, or with minute particularity. The subject of laws with such titles as the following, 'To adopt a penal code,' 'To adopt the common law of England in part,' 'To adopt a code of laws,' 'To...