In re Rafferty

• Decision Date: 18 November 1890
• Citation: 1 Wash. 382,25 P. 465
• Parties: IN RE RAFFERTY.
• Court: Washington Supreme Court

25 P. 465

1 Wash. 382

IN RE RAFFERTY.

Supreme Court of Washington

November 18, 1890

Habeas corpus.

Henry W. Lueders, for petitioner.

W C. Jones, Atty. Gen., for the State.

SCOTT J.

Defendant was convicted in the superior court of Pierce county of the crime of an attempt to commit rape, and upon June 24, 1890 was sentenced to imprisonment in the penitentiary for a term of 14 years. After his incarceration, application was made to the Honorable THEODORE L. STILES, one of the judges of this court, for a writ of habeas corpus, whereupon an order nisi was made by said judge, requiring the warden of the penitentiary to show cause to this court why the writ should not issue. This being the first proceeding of the kind before us, the question arises as to the jurisdiction of the court in such matters, and necessitates a construction of section 4, art. 4, of the state constitution as to its purport, and as to whether it is self-executing in this particular, and, if not, whether an act passed by the last legislature, (see Sess. Laws 1889-90, p. 321,) re-enacting said section verbatim, vivifies the same, no way having been pointed out as to the manner of procedure in such cases; also, as to whether the provisions of the Code found in chapter 58 apply to this court, by virtue of section 24 of the enabling act, and an act of the legislature approved December 13, 1889, (see Sess. Laws 1889-90, p. 94,) continuing all laws in force applicable to our present system of government, and substituting the word "state" for "territory," etc. It is contended that the provisions of the Code are not applicable to us, because it would result in compelling this court or its several members virtually to sit as committing magistrates under Code, § 678, to inquire into the sufficiency of causes, where persons are held for trial upon criminal charges, and that no such state of affairs could have been intended, in view of its consequential inconveniences and expense. It is further contended that the provision referred to of the constitution is not of force until legislation is had pointing out the manner of carrying the same into effect, and providing some means of preserving the records in such cases, particularly when such a proceeding is had before one of the individual judges of this court; and, if this is true, then the literal re-enactment of said section by the legislature does not help this out, and the constitutional provision is dormant.

In the light of all the law submitted to us bearing upon the subject, we are forced to the conclusion that, notwithstanding the awkward results that might occasionally be brought about in cases where this court should be called upon to review the proceedings of committing magistrates, which would practically amount to an appeal therefrom, and be a rehearing thereof, the provisions of the Code mentioned do apply to this court until the same are changed by legislative enactment. We are also of the opinion that the constitutional provision in question is within those denominated or recognized as self-executing, especially when considered with the general power of the court to regulate its proceedings. It can hardly be supposed it was contemplated or intended so important a right as this should be suspended, as far as the jurisdiction of this court is involved, until such uncertain time as it should be called into life by legislation pointing out the method of procedure. In the absence of such legislation, this court could establish rules defining the course to be pursued, if necessary to enforce it. It is apparent, however, by section 687 of the Code, that in all cases where the writ is directed by the supreme court or a judge thereof, or an order nisi made, the same should be issued by the clerk of this court. Where the same is made returnable before a superior court or judge, the subsequent proceedings would be had in such court.

An objection was urged that there was no authority for granting an order to show cause at all; that, as the laws cited speak only of the writ, it must be the writ, if anything. It is the practice in the United States courts to grant an order nisi, and section 755 of the Revised Statutes is more imperative than our own in relation to the speedy issuance of the writ. It was also the established practice at the common law to grant a rule nisi in the first instance. See Whart. Crim. Pl. § 986. Therefore, in view of the lesser expense and greater simplicity of the proceeding in not requiring the presence of the prisoner, we think it is the better practice, and authorized here.

It is further contended that our constitution only gives the supreme court authority to issue the writ as to state officers, although it gives each one of the judges of said court power to issue on behalf of any person held in custody and, at the option of such judge, to make the writ or order returnable before the supreme court. The language of that part of the section is as follows: "The supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers;" and while, perhaps, a literal grammatical construction of this clause, as contended, might not give the court jurisdiction, and might prevent its exercise, except as to where state officers are concerned, yet, if so, the language must yield somewhat to prevent what would apparently approach a legal absurdity. See Potter's Dwar. St. pp. 143-146, as to American rules of construction. 1 Story, Const. par. 400, at page 283. It cannot well be supposed that it was intended to confer greater powers upon the several judges of this court than upon the court itself, and especially to give the single judges power to compel the court to hear and determine such matters in all cases, by making the process returnable before the court. No reason has been pointed out for such a grant, and reliance is had solely upon what is contended to be the correct...