In re Hendricks

• Decision Date: 11 July 1895
• Citation: 64 N.W. 110,5 N.D. 114
• Parties: In re HENDRICKS.
• Court: North Dakota Supreme Court

5 N.D. 114

64 N.W. 110

In re HENDRICKS.

Supreme Court of North Dakota.

July 11, 1895.

Syllabus by the Court.

Chapter 74, Laws 1893, provides for a revision of the statutes of the state, and for the publication of such revision in a volume to be known as the “Revised Codes,” and section 7 of the act provides that the finished copies of the volume shall be delivered to the secretary of state, and thereupon the governor shall issue his proclamation announcing such delivery and his acceptance of the volume “and thirty days after the date of his proclamation said Revised Codes shall take effect and thereafter be in force and be received as evidence of the laws of this state in all the courts thereof.” Held, that it was not only the legislative purpose to fix by said section the date at which the volume should be received as evidence, but also to fix a date when the system of laws contained in the volume should go into effect; and held, further, that the alterations in and additions to the laws directed to be published in said volume do not, except when otherwise provided by an emergency clause, go into effect until the completion of the events specified in said section 7.

Application of Stephen A. Hendricks on discharge for a writ of habeas corpus. Application granted.George W. Newton, for petitioner. J. F. Cowan, Atty. Gen., in opposition.

BARTHOLOMEW, J.

Stephen A. Hendricks, a prisoner confined in the penitentiary at Bismarck, being in the county of Burleigh and within the limits of the Sixth judicial district of the state of North Dakota, on the 5th day of July, 1895, presented to the supreme court his petition for a writ of habeas corpus to be directed to the warden of said penitentiary, for the purpose of testing the legality of his imprisonment. This court, being in doubt as to its authority to issue the writ upon the petition presented, directed by order that a copy of the petition be served upon the attorney general of the state, which was accordingly done, and the attorney general filed certain objections to the allowance of the writ, and the objections were fully argued by the attorney general and counsel for the petitioner. The objections filed contained the following: “That by the provisions of section 886 of the Code of Criminal Procedure passed February 21, 1895, by the 4th legislative assembly of the state of North Dakota, and approved March 2, 1895, it is provided, regarding the issuance of the writ of habeas corpus and the jurisdiction of the courts and judges so to do, as follows: The writ of habeas corpus must be granted: 1. By the supreme court or any judge thereof, upon petition by or on behalf of any person restrained of his liberty in this state. When so issued it may be made returnable before the court, or any judge thereof, or before any district court or judge thereof. 2. By the district courts or any judge thereof, upon petition by or on behalf of the person restrained of his liberty in their respective districts. When application is made to the supreme court, or to a judge thereof, proof by the oath of the person applying, or other sufficient evidence shall be required that the judge of the district court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district, or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting, and if such proof is not produced the application shall be denied.”

It is conceded that the petition contains no proof or statement that the judge of the Sixth judicial district is absent from his district, or has refused to grant the writ, or is in any manner incapable of acting upon the application of the petitioner. Prior to the enactment of the provisions above set forth, application for the writ of habeas corpus might be made direct to the supreme court, without any reference to the judge of the district court of the district wherein the petitioner was confined. The learned counsel for the petitioner contends that the provision of the Code of Criminal Procedure enacted by the 4th general assembly have not yet gone into effect and are not in force, that we are still acting under the provisions of the law as it stood prior to that enactment, and hence his petition is sufficient in that respect. The attorney general, on the other hand, contends that all of the provisions of the Code of Criminal Procedure enacted by the 4th general assembly that were not theretofore in effect went into effect and became of binding force on July 1, 1895. This is the controversy, and the only controversy, that we are required to decide, in passing upon the sufficiency of the petition. The provisions of our constitution and laws are such that the question is involved in some uncertainty. For convenience, we will at this point refer to all of the provisions bearing upon the subject that it will be necessary for us to discuss in this opinion.

Section 1 of chapter 3 of the Session Laws of Dakota Territory for 1889 reads as follows: “That all laws hereafter enacted by the legislative assembly of Dakota unless otherwise expressly provided therein shall be in force and take effect on the first day of July after their passage and approval.” Section 67 of our state constitution reads as follows: “No act of the legislative assembly shall take effect until July 1st, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act) the legislative assembly shall, by a vote of two-thirds of all the members present in each house, otherwise direct.” The 2d legislative assembly, by chapter 82, Laws 1891, created a compilation commission whose duty it was “to compile, arrange, classify and report the laws of this state which may be in force on the 1st day of July, A. D. 1891.” It was by said act further provided: “There shall be printed and bound as aforesaid, 2,000 copies of such Compiled Laws, and delivered to the secretary of state for distribution and sale, and the governor shall issue his proclamation announcing such fact and his acceptance of such compilation and revision, and thirty (30) days after the date of such proclamation said compilation shall go into effect and thereafter the laws so compiled shall be received by all the courts and officers of this state, as original enrolled acts approved and filed in the office of the secretary of state as now provided by law.” The legislature that convened in 1893 saw proper to create another commission known as the “Revising Commission,” and to fix their duties and powers. This was done by chapter 74 of the Session Laws of that year. The first section provides the manner in which the revising commission shall be appointed. The second provides that such commission shall have charge of the report of the compilation commission. The third section reads: “It shall be the duty of the revising commissioners: First. To examine the laws reported by said committee for compilation and compare the same with the statutes of Dakota Territory and the state of North Dakota with due reference, also, to the constitution and such other enactments as may effect their validity, and make convenient notes of reference indicating what statutes or parts of statutes not in force, if any, are now included therein, what statutes or parts of statutes still in force are omitted therefrom, what changes are necessary by reason of the enactments of this session of the legislative assembly, and generally what inconsistent, conflicting or superfluous provisions are to be found in the existing laws, and what statutes or parts of statutes are of doubtful force or validity, and make such further investigation as may be necessary to bring before them the real state of the law. Second. To revise the law generally, by rejecting all unnecessary, inharmonious, obsolete or otherwise objectionable enactments, and reporting them in proper bill form for the purpose of repeal to the fourth session of the legislative assembly, and adopting only those statutes or parts of statutes in distinct sections, which do not require change, and by preparing anew and embodying in connection therewith, upon any particular subject wherein it may be found necessary, such other provisions as may be required to avoid uncertainty and harmonize and complete the law according to its true intent; and all newly prepared matter so introduced shall be reported to the fourth legislative assembly in the form of appropriate bills for enactment or re-enactment, each of which shall designate by the proper number or numbers the section or sections of the Revised Code for which it is intended.” The third subdivision of this section directs the commission to codify the laws so adopted and revised under seven titles, namely: The Political Code, the Civil Code, the Code of Civil Procedure, the Probate Code, the Justices' Code, the Penal Code, and the Code of Criminal Procedure. The fourth subdivision directs the commission to prepare the codes in proper form to be used by the printer, for publication in one octavo volume, to be known as the “Revised Codes of North Dakota.” The fourth section reads: “As soon as practicable after the adjournment of the fourth regular session of the legislative assembly, said revising commissioners shall complete their codifications by incorporating therein the general laws passed at said session in the manner hereinbefore prescribed.” The fifth and sixth sections pertain to the printing of the volume, and the seventh section reads: “The printed copies shall be delivered when completed to the secretary of state, and the governor shall issue his proclamation announcing the delivery and his acceptance of such copies, and thirty days after the date of his proclamation said Revised Code shall take effect and thereafter be in force and be received in evidence of the laws of this state in all courts thereof.”

A decision of the point here...