Hendershott v. Young, 130

• Decision Date: 08 March 1956
• Docket Number: No. 130,130
• Citation: 209 Md. 257,120 A.2d 915
• Parties: Susan Jane HENDERSHOTT v. John T. YOUNG, Supervisor of Montgomery County Jail.
• Court: Maryland Court of Appeals

Page 257

209 Md. 257

120 A.2d 915

Susan Jane HENDERSHOTT v. John T. YOUNG, Supervisor of Montgomery County Jail.

No. 130.

Court of Appeals of Maryland.

March 8, 1956.

Arthur B. Hanson, Washington, D. C., and J. Hodge Smith, Rockville, for appellant.

Charles M. Irelan, County Atty. for Montgomery Co., Rockville, and C. Edward Nicholson, Jr. Asst. County Atty., Rockville (Alger Y. Barbee, State's Atty., Montgomery Co., Rockville, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

We granted petitioner's application for leave to appeal from the denial of habeas corpus. She is a practicing lawyer in Montgomery County and had formed the conclusion that Chapters 151 and 174 of the Acts of the General Assembly of 1955, which together repealed and re-enacted Sec. 92A of Art. 52, Code 1951, had abolished the office of justices of the peace, and justices of the peace designated as committing magistrates, for Montgomery County and transferred all of their former authority, power and jurisdiction to the judges of the newly created People's Court for Montgomery County. Chapters 151 and 174 of the Acts of 1955 were passed pursuant to the authority of Art. 4, Sec. 41A and 41B of the Constitution of Maryland. Despite their passage the Governor appointed twenty-three justices of the peace for Montgomery County for the two year term beginning May 1, 1955 and designated four of them as committing magistrates, and the government of the county appropriated funds for their salaries and expenses. They have continued to function as they did before the effective date of the 1955 legislation.

In order to make a test case to establish that the justices of the peace, and those of them who are committing magistrates, were without legal power or authority, the petitioner, on July 10, 1955, parked her automobile in a street intersection in Montgomery County in violation of Code 1951, Art. 66 1/2, Sec. 210(a)(3). A police officer witnessed this violation of the law. The lady being a resident of Maryland, the officer, as required by Code 1951, Art. 66 1/2, Sec. 284, 1955 Supp., asked her to sign a summons agreeing to appear at the People's Court on a day named. Petitioner refused to sign the summons and was taken by the officer before Luther G Burdette, a justice of the peace who acted regularly as a committing magistrate, although not formally designated as such. It appears from the record that petitioner refused to post collateral of $6.45 and was thereupon committed to the custody of the sheriff of Montgomery County, bail being set in the commitment at $50. Almost immediately, that same Sunday afternoon, habeas corpus was sought from Judge Anderson of the Circuit Court for Montgomery County on the ground that petitioner was being illegally detained by the jailer of the Montgomery County jail, and a few minutes later, the judge released her on her own recognizance, pending a further hearing on the application for the writ. On July 18, argument was had before the circuit court, Judges Prescott and Anderson sitting. It was urged that petitioner's commitment to jail by the justice of the peace was illegal and void because the 1955 acts had abolished his office in Montgomery County and transferred all its jurisdiction and powers to the People's Court. On July 28, the court handed down an opinion in which it ruled on this contention and held that '* * * the General Assembly intended to grant unto the Judges of the Peoples Court for this County the same power and authority previously vested in those Justices of the Peace designated as trial magistrates, and the other Justices of the Peace, and not to take away from the Justices of the Peace sitting only as committing magistrates the limited powers now reposed in them. We, therefore, find that the action of the Justice of the Peace in issuing a warrant against the traverser was within the scope of his authority, so the petitioner will be remanded to the custody of the Sheriff until released by due process of law.' We think that the court was right in refusing to issue the writ but that its action was predicated on the wrong grounds, and do not find it necessary or appropriate to decide the question decided below--the only question argued there or here.

Open to very serious doubt is whether petitioner could challenge by habeas corpus the authority of the justice of the peace to act since he acted under color of title to a constitutional office and no court had declared that he was not legally able to do so, under the provisions of Chap. 321, Sec. 5 of the Acts of 1927, codified as Sec. 598 of the Code of Public Local Laws of Montgomery County (Flack, 1947), or otherwise. There are many decisions by able courts, holding that habeas corpus will not issue to challenge the effect or results of the action of a de facto judicial officer, including a justice of the peace. It may well be that the committing magistrate, who acted in the case before us, if not a de jure officer[120 A.2d 917] --as to which we express no opinion--was, at the least, a de facto officer. Constitution of Maryland, Art. 4, Sec. 42; Kimble v. Bender, 173 Md. 608, 620 et seq., 196 A. 409; Buckler v. Bowen, 198 Md. 357, 84 A.2d 99. In Kimble v. Bender this Court held that a justice of the peace could be a de facto judicial officer whose acts were valid until a court had ruled that he was not entitled to act. In Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765, the Supreme Court ruled that where a person is convicted by an officer de facto and detained in custody in pursuance of his sentence, he cannot properly be discharged on habeas corpus, since the validity of the title of a judge to his office or his right to exercise judicial functions cannot be determined on a writ of habeas corpus. A number of cases were cited in support of this proposition. See also State ex rel. Bales v. Bailey, 106 Minn. 138, 118 N.W. 676, 19 L.R.A.,N.S., 775, for a similar holding, and the citation of a number of authorities to the same effect. This point was not argued in the briefs, or before us, and we do not find it necessary to decide it. We assume, without deciding, that in a proper case, an applicant for the writ of habeas corpus could test the right to act of a judicial officer, by whose process he was in custody. We are convinced for other reasons that the petitioner was not entitled to the writ.

Traditionally, and in practice, the writ of habeas corpus has been and is available only to liberate persons who are in actual, involuntary, illegal restraint. The courts have not lent themselves to the issuance of the writ when restraint was theoretical or technical only, or was actual but by choice, and the real purpose of the writ was to test the validity of a law and not, in fact, to bring about release from involuntary confinement. It is clear that habeas corpus will not be granted one who is free on bail. As it is put in Ex parte Powell, 191 Wash. 152, 70 P.2d 778, 779: 'Unless there be an actual or physical restraint of a person, the writ of habeas corpus may not issue, and a person released from imprisonment on bail is not so restrained of his liberty as to be entitled to the writ. This statement of the law is supported by the overwhelming weight of authority.' In Palmer v. State, 170 Ala. 102, 54 So. 271, 272, the Court said: 'Indeed, we do not find a case in the books holding that a person out under bail is so restrained as to entitle him to the writ.' Many courts agree with these holdings. See Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; Rowland v. State of Arkansas, 8 Cir., 179 F.2d 709, certiorari denied 339 U.S. 952, 70 S.Ct. 841, 94 L.Ed. 1365; Ex parte Robilotto, 24 N.J.Super. 209, 94 A.2d 207; 39 C.J.S. Habeas Corpus, § 9. In Commonwealth ex rel. Maisels v. Baldi, 172 Pa. Super. 19, 92 A.2d 257, the Superior Court of Pennsylvania held that one who had been refused habeas corpus and then had been released on bail became subject to have his appeal dismissed as moot since he was at liberty at the time of the appeal. In Ex parte Powell, supra, the highest Court of the State of Washington observed that a defendant who has obtained his release on bail cannot thereafter maintain a proceeding for a writ previously begun.

Made plain also by the cases is the rule that if the confinement is voluntary, there is no need for the issuance of the writ and it will be denied. In Ex parte Ford, 160 Cal. 334, 116 P. 757, 759, 35 L.R.A.,N.S., 882, the Court held that where the imprisonment involved is voluntary, as where an...