In re Clark

Decision Date01 September 1894
Citation31 A. 522,65 Conn. 17
CourtConnecticut Supreme Court
PartiesIn re CLARK.

Appeal from court of common pleas, Litchfield county; Arthur D. Warner, Judge.

Application for writ of habeas corpus in the matter of William J. Clark against James A. Cochrane, deputy sheriff. Prom a judgment discharging plaintiff from imprisonment defendant appeals. Reversed.

Leonard J. Nickerson and Wellington B. Smith, for appellant .

Daniel Davenport for appellee.

HAMERSLEY, J. There are two questions presented by this case:

First. Does section 91 of the General Statutes authorize a justice of the peace to issue a mittimus without a regular trial and judgment? The section is as follows: "The grand jurors in each town, or any three of them, may meet to advise concerning offenses committed therein, and may call before them, at such meetings, any witnesses, to be examined touching the same; and if any person shall refuse to appear before them at such meeting, being summoned by competent authority, they may apply to a justice of the peace for a capias, who may issue one to bring such person before them; and if any person appearing, or, being brought before them, shall refuse to be sworn, or, being sworn, shall refuse to answer any proper question, they may complain to any justice of the peace in the county where such meeting is had, who shall cause such person to be brought before him, and commit him to jail, there to remain, at his own expense, until he shall give evidence as required. Said grand jurors, when so met, shall have all the powers of a justice of the peace, when holding court, to commit for contempt." The claim is, that the refusal to answer a proper question, asked in pursuance of this section, constitutes an offense; that the complaint to a justice of the peace is the commencement of a prosecution by complaint; that upon such prosecution the witness is entitled to a trial, as in any prosecution for a criminal offense; and that a mittimus for his commitment to jail can issue only after final judgment has been rendered. This meaning imputed to the statute would practically destroy its efficiency. A witness who refuses to answer need only demur to the complaint made to the justice, appeal from the judgment on the demurrer to a higher court, and before the case is determined the occasion for which the question was asked may have passed. Such was the course attempted in this case. The words of the statute will not bear such a construction; and although the statute, in various forms, has been in force since 1750, and has been in constant use as a means for the detection of crimes, yet no record can be found that the claim now made by the plaintiff has ever before been intimated. The plaintiff suggests that the fact that in the Revision of 1821, and until the Revision of 1849, the statute read as follows: "Such grand jurors may make complaint to any justice of the peace, who shall cause such person to be brought before him, and, on conviction, shall commit him to the common jail" (Rev. St. 1821, p. 260, § 6),—proves that until 1849 a trial by the justice was necessary, and that the omission of the words "on conviction" in the Revision of 1849 did not alter the law. The words "on conviction," which were retained in the statute until 1849, will not bear the Interpretation which the plaintiff gives them. These words were used in the original act of 1750, and their meaning clearly appears by that act. The act provides that the grand jurors in each town shall meet once in three years, or oftener if necessary, "to advise concerning such breaches of law as by their office they are to inquire after, and present, and shall have power to call before them * * * any persons as witnesses, in order to be examined touching such delinquency as they are inquiring after; and if any person refuse to appear * * * upon being summoned thereto by warrant from an assistant, or justice of the peace (who are hereby directed to grant such warrant, on request of such grand jurors) or shall refuse to be examined upon oath, if thereto required, such witnesses may, by such assistant, or justice, on conviction of such refusal, be committed to the common jail." "On conviction of such refusal," as thus used, did not mean on conviction of an offense after trial, but simply meant on being convinced of such refusal in any satisfactory manner, and especially by the persistence of the witness in his refusal; and the meaning then attached to the words has never been changed.

In 1644 a grand jury was required to appear before every court yearly "to make presentment of breaches of any laws or orders, or any other misdemeanors they know of in their jurisdiction." 1 Col. Ree. 91. In 1668 at least one grand juror was required to appear from each plantation in the county. 2 Col. Rec. 98. In 1680 it was ordered that the grand jurors appointed by the county courts should serve at least one year. 3 Col. Rec. 52. In 1681 the oath prescribed for grand jurors, who had now become a permanent inquest, was altered so as to include the obligation "with all due care and faithfulness to make diligent search" for violations of law, as well as presentment of those within their knowledge. Id. 95. In 1712 each town was required to appoint two or more grand jurors to serve as before, whose names should be returned to the clerk of the court, and a sufficient number of them be summoned as needed. It will thus be seen that the grand jurors of the towns were officers, annually appointed, and not only constituted the grand Inquest of the county attending the superior courts for the purpose of presenting crimes, but were also charged with the duty at all times of making diligent search, with all due care and faithfulness, for the discovery of violations of law, and of presenting offenses discovered to the judicial authority in each town, as well as at the sessions of the court The act of 1750 practically authorized a local Inquest to be held in each town, as well as the grand Inquest at the sessions of the court, and directed an assistant, who was a judge of the highest court, or one of the justices of the peace, who was eligible to sit as judge of the county court, to issue the warrants necessary to enable the local Inquest to perform its duties; and it is evident that when the act directed such judge to commit a witness who refused to be examined under oath upon conviction of such refusal, it did not contemplate any formal trial, or any hearing different from that which might precede the ordering of a mittimus if the judge were holding court and had occasion to commit a witness who refused to be examined under oath before a grand jury. The statute of 1750 has been modified in the process of time, both by changes in phraseology and in the duties of grand jurors and justices; but there has been no change in the purpose of the act or in the authority for the summary commitment of a witness who refuses to testify. The omission of the words "on conviction," when the legislature enacted the Revision cf. 1849, was probably made because the words had lost much of their original significance, or were deemed unnecessary in the present form of the act, or liable to misconstruction; but, however that may be, it is clear that the alterations in the act made in 1849 were intentional, and that the act as altered does authorize a justice of the peace to Issue a mittimus without a regular trial and judgment; and this operation of the act has been unquestioned for nearly fifty years.

Second. Is the issue of a mittimus, in pursuance of section 91, in violation of any provision of the constitution? The plaintiff claims that his Imprisonment under the mittimus was unconstitutional, because the (statute authorized the mittimus to issue only upon conviction of a criminal offense, after trial; that the mittimus was in fact issued without such trial, and therefore he was Imprisoned without due process of law. This argument of the plaintiff would be conclusive if his construction of the statute were correct His brief also claims that the statute is unconstitutional if his construction is not correct, and as the discharge of the plaintiff by the court below was right if the statute authorizing the Imprisonment is in violation of the constitution, we must consider that question. Section 91 does not create any criminal offense, nor does it relate to any judicial proceeding. The imprisonment imposed is not a penalty for any crime. It simply Imposes a duty on the citizen, and seeks to enforce that duty when immediate obedience is essential by the temporary restraint of the person. The restraint of the person may be authorized by the legislature without the Intervention of any court in many cases where such restraint is necessary to the execution of the law and the enforcement of police regulations. The defendant in a civil action, who refuses to turn out property for attachment, may be committed to jail without trial. Selectmen may, without trial, take children from the custody of parents who neglect them, and bind them out to masters. Gen. St § 2109. For certain infringements of the pauper laws they may, without trial, order an inhabitant of another state to be forcibly taken out of this state, and may expel from their town the inhabitant of another town. Sections 3292, 3293. A tax collector may, if necessary, commit to Jail a citizen refusing to pay his taxes, there to remain until payment is made, or he be discharged in due course of law. Section 3889. A collector who falls to collect and pay over the taxes may himself, without trial, be committed to Jail, as on execution after judgment Section 3879. The moderator of any town meeting, or of any meeting of any society or other community, may order into custody any person who refuses to submit to his lawful authority, and have him forcibly removed until he shall conform to order. Section 52. The Instances are numerous and familiar where...

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38 cases
  • State v. Sanabria
    • United States
    • Connecticut Supreme Court
    • April 10, 1984
    ...when in actual service in time of war, or public danger." See State v. Kemp, 126 Conn. 60, 9 A.2d 63 (1939); In re Application of Clark, 65 Conn. 17, 31 A. 522 (1894). The repeal of the constitutional grand jury provision could only deprive the statutory grand jury provision of its force if......
  • State v. McCleese
    • United States
    • Connecticut Supreme Court
    • August 23, 2019
    ...department; such a division is impracticable, and if carried out would result in the paralysis of government." In re Application of Clark , 65 Conn. 17, 38, 31 A. 522 (1894). In challenges to a statute's constitutionality on the ground that it impermissibly infringes on the judicial authori......
  • University of Connecticut Chapter AAUP v. Governor
    • United States
    • Connecticut Supreme Court
    • July 8, 1986
    ...such incidental powers in their intrinsic character belong more naturally to a different department." Id., citing In re Application of Clark, 65 Conn. 17, 38, 31 A. 522 (1894). As the trial court indicated, the relevant standard for testing the constitutionality of such a statute is stated ......
  • State v. Clemente
    • United States
    • Connecticut Supreme Court
    • July 2, 1974
    ...magistracy.' As the majority recognize, article second is not a prescription for a rigid functional classification. 2 In re Application of Clark, 65 Conn. 17, 38, 31 A. 522. Unlike the constitutions of some other states, 3 our constitution does not explicitly allocate the power to make rule......
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2 books & journal articles
  • 1992 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 67, 1992
    • Invalid date
    ...A.2d 738 (1992). This was his first dissent on the Supreme Court. 13. 222 Conn. 799,611 A.2d 400 (1992). 14. In re Application of Clark, 65 Conn. 17, 31 A. 522 (1894). Berdon's dissent shows how much of Clark's reasoning would be outrageous today. This may account for the majority's narrow ......
  • State courts and the separation of powers: a venerable doctrine in varied contexts.
    • United States
    • Albany Law Review Vol. 61 No. 5, August 1998
    • August 6, 1998 at 401-02. (187) See id. (188) See id. at 408. (189) See id. (190) See id. at 406-07. (191) See id. at 407-08 (relying on In re Clark, 31 A. 522 (192) See id. at 408-09. (193) Id. at 408. (194) See id. at 408-09. (195) See id. at 409-11 (Berdon, J., dissenting). (196) See id. at 408-09 ......

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