Harlow v. Clow

• Citation: 223 P. 541,110 Or. 257
• Parties: HARLOW v. CLOW, CHIEF OF POLICE OF KLAMATH FALLS.
• Decision Date: 26 February 1924
• Court: Oregon Supreme Court

223 P. 541

110 Or. 257

HARLOW v. CLOW, CHIEF OF POLICE OF KLAMATH FALLS.

Supreme Court of Oregon

February 26, 1924

Department 2.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Application by Garry Harlow for a writ of habeas corpus against W. G Clow, as Chief of Police of Klamath Falls. From an order sutsaining the writ, defendant appeals. Reversed and set aside.

This is a habeas corpus proceeding. Garry Harlow, the petitioner, was convicted of vagrancy in the municipal court of the city of Klamath Falls. Thereafter he instituted this proceeding against the defendant, W. G. Clow, as chief of police of the city of Klamath Falls. The petitioner alleged:

That he was restrained of his liberty unlawfully; "that the purported, alleged or pretended conviction upon which said Garry Harlow is now being imprisoned and restrained of his liberty was under and by virtue of Ordinance 259 of said city, which * * * provides * * * that any person found guilty of violation of its provisions shall be punished as follows By a fine not to exceed $100.00, or by imprisonment not to exceed 50 days, or both such fine and imprisonment; * * * that said police judge has exceeded his jurisdiction in imposing the punishment set out in the purported commitment attached hereto, marked Exhibit A, and made a part hereof, in imposing an additional 50 days' punishment in the event of the default of $100.00 fine set out therein, making an aggregate of 75 days' punishment."

The application for the writ was made before the defendant had served the term of imprisonment confessedly lawfully imposed. However, the court took the position that Ordinance 259 of the city of Klamath Falls conflicts with sections 2086--1, 2086--2, Oregon Laws, and, basing its judgment upon that ground, made an order sustaining the writ and discharging the prisoner.

J. H Carnahan, City Atty., of Klamath Falls, for appellant.

BROWN J. (after stating the facts as above).

The writ of habeas corpus does not take the place of an appeal. It is a civil proceeding providing a remedy for one who is wrongfully deprived of his liberty.

Upon a conviction for vagrancy, the municipal court of the city of Klamath Falls is empowered to impose a sentence of not more than 50 days, or a fine of not to exceed $100, or both such fine and imprisonment. The municipal court did pronounce judgment upon the petitioner, imposing upon him a penalty of 25 days in jail and a fine of $100. Before the petitioner had served his jail sentence of 25 days, lawfully passed, he instituted this proceeding.

While there is some conflict among the authorities of other states it is well settled in this state, and supported by the great weight of authority in other jurisdictions, that an excessive sentence is valid as to that part of it which is authorized by law, and is void only as to the excess, especially whenever the valid portion of the judgment is separable from the excessive. "In accordance with this view, habeas corpus will not lie to discharge a prisoner held under an excessive sentence before he has served or satisfied the authorized part of it. * * * But after the authorized part has been served or satisfied, further detention is illegal, and relief may be had by habeas corpus." 29 C.J. 59, 60.

To the same effect is Ex parte Foster, 69 Or. 319, 138 P. 849.

By the provisions of the charter and ordinance of the city of Klamath Falls, and by virtue of Oregon Laws, § 2480, the following section of our Code is applicable to the case at bar:

"A judgment that the defendant pay a fine must also direct that he be imprisoned in the county jail until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine; and in case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned." Or. L. § 1577.

While the judgment entered by the court failed to specify that the defendant should be imprisoned upon making default in the payment of the fine, the law supplies the deficiency, and the corrected commitment contained in the answer made by the defendant in this proceeding is sufficient.

The imprisonment arising from the defendant's failure to pay the fine is deemed in law not a punishment for the crime, but as a means of enforcing the payment thereof. State v. Sheppard, 15 Or. 598, 16 P. 483; Ex parte McGee, 33 Or. 165, 54 P. 1091.

It is a general rule that a defendant may be committed for default in the payment of a fine, and such imprisonment is not contrary to article 1, § 19, of the Constitution, providing that--

"There shall be no imprisonment for debt except in case of fraud or absconding debtors."

See 8 Encyc. of Plead. & Prac. 977; 25 C.J. 1159.

The contention of the petitioner here is similar to the position taken by the appellant in Ex parte McGee, 33 Or. 165, 54 P. 1091. In that case the defendant was convicted, in the municipal court of the city of Portland, of disorderly conduct, and was sentenced to pay a fine of $200, and, in default of such payment, it was ordered that he be committed to the city prison for 100 days. It was argued in that case that because of a provision in the city charter limiting the power of imprisonment by the municipal court to 90 days, the commitment of the accused for 100 days was in violation of that regulation. The court said:

"We have anticipated this proposition somewhat by previous considerations. State v. Sheppard, 15 Or. 598, 16 P. 483. * * * The imprisonment is merely a prescribed mode of enforcing the payment of the fine, and, as we have seen, constitutes a step in the Code of Criminal Procedure to be pursued in all cases involving the imposition of a fine. The punishment permitted by the charter and fixed by the ordinance is imprisonment or fine, or both. All beyond is mere mode or manner of enforcement. The first can only be satisfied by serving out the prescribed term in prison, while the latter may be satisfied by payment of the fine imposed; but for the coercion of that payment the statute has prescribed a mode of

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