Grier v. Kennan

• Decision Date: 23 February 1933
• Docket Number: No. 9439.,9439.
• Citation: 64 F.2d 605
• Parties: GRIER v. KENNAN, Sheriff.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F.2d 605 (1933)

GRIER v. KENNAN, Sheriff.

No. 9439.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1933.

John L. Gilmore, of St. Louis, Mo., for appellant.

C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for appellee.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

September 4, 1931, there was filed in the District Court for the Eastern District of Missouri, against appellant, a criminal information containing five counts. October 27, 1931, appellant entered her plea of guilty to counts 1 and 5 of said information, and the intermediate counts were dismissed. It was thereupon adjudged by the court that the said: "Addie Grier, make her fine to the United States of America by the payment of the sum of Two Hundred Fifty ($250.00) Dollars and that she stand committed thereunder to the Audrain County Jail at Mexico, Missouri, until said fine be paid;

"And as to and under the plea of guilty so entered as aforesaid by said defendant, Addie Grier, to the charge as contained in count five of the information herein against her, that as to and under the charge as contained therein, she the said defendant, Addie Grier, make her fine to the United States of America, by the payment of the sum of Five Hundred ($500.00) Dollars and that she stand separately committed thereunder to the Audrain County Jail at Mexico, Missouri, until the said fine be paid.

"And the United States Marshal in and for the Eastern Judicial District of Missouri is hereby directed to deliver the said defendant, Addie Grier, to the jailer of the said Audrain County Jail; said jailer to receive, keep, imprison and confine the said defendant, Addie Grier, under the aforesaid judgment and sentence until she shall have paid the separate fines so imposed against her as aforesaid or until discharged thereunder by due process of law."

A commitment was on the same day issued to the United States marshal of the district, and by him executed by delivering appellant to the keeper of the jail of Audrain county at Mexico, Mo., appellee herein. Appellee kept the appellant in his custody under said commitment, from October 27, 1931, to and including the 1st day of December, 1931, at which time she was released under bail, subject to the order of the district court. November 28, 1931, appellant made written application to a United States commissioner for the district wherein she was imprisoned for a hearing, under the provisions of section 641, 18 USCA, to inquire into her ability to pay the fines imposed. This application was refused by the commissioner on the ground that appellant had not been confined for the full period imposed by the court's judgment, and by the terms of the commitment issued thereunder, and that her application therefore was premature. December 1, 1931, appellant filed in the district court her petition for a writ of habeas corpus, alleging that her continued imprisonment and restraint were illegal, for the reason that, under the terms of section 641, supra, appellant was entitled to be discharged from custody after having been confined for a period of thirty days, solely for the nonpayment of the fines imposed upon her by said judgment, provided she could establish, before the United States commissioner, her inability to pay such fines, or fines and costs, in accordance with the terms of said section 641. Upon hearing, said writ of habeas corpus was quashed and appellant was remanded to the custody of respondent "until such time as she shall have served sixty days' imprisonment for the two fines assessed against her and shall otherwise have complied with the provisions of section 641, supra." Thereupon appellant's application to prosecute this appeal in forma pauperis was granted, and appellant was admitted to bail pending the disposition of her appeal in this court. The trial court accepted the issue presented by the action of the commissioner in refusing to hear the application of appellant under section 641, and sustained that action. In order that this question may be settled without unnecessary resort to further litigation, we find it advisable at the outset to review the action of the trial court upon this phase of the controversy. The decision on this point depends upon the construction to be given to said section 641, 18 USCA which reads in part as follows:

"Discharge of Indigent Convicts. When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the nonpayment of such fine, or fine and costs, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter."

If it appears to the commissioner that the applicant is unable to pay as in said section provided, discharge from custody follows, but this action does not satisfy the judgment for fine and costs which may be enforced by execution against the property of the defendant, if found, in like manner as judgments in civil cases are enforced. 18 US CA § 569. Careful search by court and counsel has failed to discover any case wherein the point here in issue has been presented. The Department of Justice reports that a very careful search of the files of the Senate and Congressional libraries has been made, but no committee report has been found on Senate Bill No. 473 of the Forty-Second Congress, which bill embodied what now constitutes section 641, title 18 USCA. Our efforts to obtain some possible expression of the Congressional understanding at the time this act was passed have been, therefore, unavailing, because it is evident that no report of hearings, which may have been had on this bill, was printed.

Both court and counsel for the government attach much significance to the fact that the act in terms applies to fine in the singular. It is pointed out that, if Congress had in mind to discharge any poor convict from any number of fines, by the serving of only one period of thirty days in jail, it would have been easy for the Congress to have said so, in clear and unambiguous language. The rule is invoked that, ordinarily, where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, the courts are not permitted to search for its meaning beyond the terms of the statute itself, citing Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, Ann. Cas. 1917B, 1168, and further that, "since this statute changed the rule at common law, it is to be strictly construed, and to be held to change the former rule only to the extent that the plain language in it imports."

It is conceded, however, by the government that "statutes are to be read in the light of attendant conditions and the state of the law existent at the time of their enactment." Feitler v. United States (C. C. A. 3) 34 F. (2d) 30, 33. The opinion in this case expresses the principle thus: "In the search for the legislative intention, which after all is the central and controlling consideration in every such problem, a court should look for and find, when possible, the problem which Congress had in mind, Rodenbough v. United States (C. C. A. 3d) 25 F.(2d) 13, 57 A. L. R. 1091, consider the conditions with reference to the subject matter that existed at the time of the enactment, Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 S. Ct. 226; Northern Pacific R. Co. v. United States (C. C. A.) 213 F. 162, L. R. A. 1917A, 1198, and the causes that induced the enactment, including the policy of the government, Wisconsin Central Railroad Co. v. United States, 164 U. S. 190, 17 S. Ct. 45, 41 L. Ed. 399, and sometimes look into the history of the subject. Denn v. Reid, 10 Pet. 524, 9 L. Ed. 519; Stewart v. Kahn, 11 Wall. 493, 20 L. Ed. 176; Preston v. Browder, 1 Wheat. 115, 4 L. Ed. 50."

It is further conceded that "it is, in a proper case, a well-settled rule of construction that the singular may often import the plural as well." Indeed, the very first section of the Revised Statutes (USCA title 1, § 1) provides that "in determining the meaning of any Act or resolution of Congress, words importing the singular number...