Fussell v. State

• Decision Date: 21 January 1918
• Docket Number: 20194
• Citation: 166 N.W. 197,102 Neb. 117
• Parties: LE ROY FUSSELL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

166 N.W. 197

102 Neb. 117

LE ROY FUSSELL v. STATE OF NEBRASKA

No. 20194

Supreme Court of Nebraska

January 21, 1918

ERROR to the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Andrew P. Moran and Anthony E. Langdon, for plaintiff in error.

Willis E. Reed, Attorney General, and John L. Cutright, contra.

HAMER J. SEDGWICK, J., not sitting.

OPINION

HAMER, J.

This is an appeal from a judgment in a criminal prosecution based on the provisions of chapter 186, Laws 1915, which reads as follows: "Whenever any husband, against whom a decree for divorce and alimony for the support of his children shall have been rendered by any court in this state, shall, without good cause, refuse or neglect to pay to the persons noted the amounts and in the manner provided by such decree, he shall be guilty of a misdemeanor and shall, on conviction, be imprisoned in the county jail not less than three nor more than six months for each offense, provided the refusal or neglect to so pay each separate instalment or payment of such money as provided by the decree shall be held to be a separate offense and punishable as such."

Le Roy Fussell was the defendant in the instant case, and his trial in the district court for Otoe county resulted in a verdict of guilty on eleven counts contained in the information. He was sentenced to serve a term of three months in the county jail on each of the counts, to be served consecutively, and that he pay the costs of prosecution. He has appealed.

The appellant by his brief assails the act as unconstitutional, and as one of his reasons for the attack contends that the law is an ex post facto law; that it conflicts with section 10, art. I of the federal Constitution, and section 16, art. I of the Constitution of this state, the latter of which provides: "No bill of attainder, ex post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities shall be passed."

The record discloses that on the 14th day of January, 1915, the district court for Otoe county rendered a decree in a divorce case providing that defendant should pay the plaintiff, his divorced wife, $ 10 a month, commencing on the 1st day of January, 1915, for the support of their minor daughter, Eva Louise Fussell; and this prosecution was based on defendant's refusal to pay the sums of money so ordered by the decree of the court.

It is contended that, when the decree was rendered, there was no provision of the law for its enforcement other than the ordinary process of the court, such as execution, attachment, or garnishment; that the act in question placed the defendant in a worse situation than he was in prior to its enactment, and was therefore as to him an ex post facto law. Answering this contention, it may be said that the act in question was not amendatory of any statute, but was an independent act which was evidently passed by the legislature for the express purpose of giving the district court power to enforce orders and decrees in divorce cases. Ordinarily the court would have such power by a contempt proceeding; but this court having held in Leeder v. State, 55 Neb. 133, 75 N.W. 541, and Segear v. Segear, 23 Neb. 306, 36 N.W. 536, that a decree for permanent alimony is not so enforceable, the legislature, seeing the necessity for granting additional power to the court by which its decrees should be enforced, passed the act now under consideration for that purpose. The act, standing by itself, cannot be said to violate the provisions of either the federal Constitution or the Constitution of the state as an ex post facto law. The legislature had the power to enact such a law as far as those constitutional provisions were concerned. The act does not amend or change any other statutory provision; and, as the defendant had not been guilty of any crime at the time it was enacted, it cannot be said to operate as an ex post facto law as to him. Again, the record shows that defendant did not refuse to comply with the terms of the decree in question until after the law went into effect. It is therefore difficult to see how it affected him in any way until after his refusal to obey the order of the court. 8 Cyc. 1035; Jaehne v. New York, 128 U.S. 189, 32 L.Ed. 398, 9 S.Ct. 70; Flaherty v. Thomas, 12 Allen (Mass.) 428; Bittenhaus v. Johnston, 92 Wis. 588, 66 N.W. 805. In 8 Cyc. 1035, it is said: "Laws which would be ex post facto if applied to offenses occurring before their passage will if possible be construed as having only a prospective effect." Many cases are cited in support of this view. Giving this statute a prospective effect precludes any question as to its constitutionality in this case.

It is defendant's second contention that the act in question is unconstitutional for the reason that it provides for imprisonment for debt, and is repugnant to section 20, art. I of the Constitution of this state, which reads: "No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud." This assignment presents a more difficult question. It is argued on the strength of the cases above cited that the decree, which provides that defendant shall pay $ 10 a month for the support of his minor child, creates a debt for the nonpayment of which he cannot be imprisoned under any pretext. Our statute seems to control the situation. In Audubon v. Shufeldt, 181 U.S. 575, 45 L.Ed. 1009, 21 S.Ct....