In re Howe

• Decision Date: 02 August 1894
• Citation: 37 P. 536,26 Or. 181
• Parties: In re HOWE.
• Court: Oregon Supreme Court

37 P. 536

26 Or. 181

In re HOWE.

Supreme Court of Oregon

August 2, 1894

Appeal from circuit court, Klamath county; W.C. Hale, Judge.

In the matter of the petition of William E. Howe, on application for discharge from imprisonment. From a judgment refusing him a discharge, he appeals. Affirmed.

N.B. Knight, for appellant.

H.L Benson, for respondent.

BEAN C.J.

This is an appeal brought to reverse a judgment against the petitioner, in refusing to discharge him from arrest on a habeas corpus proceeding. From the petition it appears that on July 9, 1894, one O.H. Harshbarger filed two informations with a justice of the peace in Klamath county, charging the petitioner with having on hand, as treasurer of said county on the 31st day of March and on the 12th day of April, 1894 respectively, the sum of $4,739, county funds applicable to the redemption of outstanding county warrants, and, for more than 10 days after said dates, neglecting to give the notice required by section 2465 of 2 Hill's Ann.Laws. The petitioner was duly examined, and held to bail in the sum of $1,000 on each of the charges, and in default thereof committed to jail; and on July 11, 1894, J.T. Henley, John W. Wells, and Charles S. Moore each filed an information with the same justice of the peace, charging the petitioner, as such county treasurer, with having on hand on the 13th, 23d, and 24th of April, 1894, respectively, the sum of $4,000, for the redemption of such warrants, and, for more than 10 days after said dates, neglecting to give the notice required by law. On each of these charges the petitioner was also held to bail in the sum of $1,000, and in default thereof committed to jail. Upon the petition being filed a writ of habeas corpus was issued, and duly served upon the sheriff of said county, who, for his return, alleged that on the 9th day of July, 1894, he arrested the petitioner under a warrant of arrest issued by a justice of the peace of said county for violating section 2465, 2 Hill's Ann.Laws, and held him in his custody by virtue of five separate commitments issued and signed by said justice of the peace, copies of which he attached to, and made a part of, his return. A demurrer to the return being overruled, the court ordered the petitioner remanded to the custody of the officer, from which order he brings this appeal, claiming that he is unlawfully restrained of his liberty, because (1) section 2465, as amended in 1893, does not make the neglect of a county treasurer to publish the notice required a crime; (2) the act of 1893 is void because the subject thereof is not expressed in the title as required by section 20, art. 4, of the constitution; (3) matters of a criminal and civil nature cannot be included in the same legislative act; (4) the several delinquencies for which the petitioner was committed constitute but one offense, and therefore he could be held only on the first commitment. Of these questions in their order.

1. It is contended that the object and intent of the legislature as expressed in the section referred to, were to provide a civil remedy against a defaulting county treasurer, and not to make his neglect of official duty a crime. But it seems to us the language of the section is conclusive upon this point. After providing that all county warrants indorsed "Not paid for want of funds" shall draw interest from the date of such indorsement until the treasurer gives notice, by publication in some newspaper printed or circulated in the county, that there are funds to redeem such outstanding warrants, it further provides that such notice shall be given when the county treasurer has as much as $1,500 belonging to the county, and then continues: "Any county treasurer failing to comply with the requirements of this section for the period of ten days shall, upon conviction thereof, be punished by fine not less than five hundred nor more than one thousand dollars." Laws 1893, p. 60. The terms "conviction" and "punishment" each have a well-settled legal meaning, and are used in the law to designate certain stages and incidents of a criminal prosecution; and when the legislature declared that for a violation of his official duty a county treasurer should, on conviction thereof, be punished, it manifestly intended that the proceedings against him should be on the criminal, and not the civil, side of the court. That the legislature did not see fit to declare such delinquency either a...