Kelly v. Dewey

• Decision Date: 31 March 1930
• Citation: 111 Conn. 281,149 A. 840
• Court: Connecticut Supreme Court
• Parties: KELLY v. DEWEY, SHERIFF.

149 A. 840

111 Conn. 281

KELLY v. DEWEY, SHERIFF.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Habeas corpus proceedings by Thomas P. Kelly against Edward W Dewey, Sheriff, to determine the legality of detention of plaintiff in the Hartford county jail, brought to the superior court, where a demurrer to the respondent's return was sustained. Thereafter, on an agreed statement of facts, judgment was rendered discharging plaintiff from custody, and defendant appeals.

Error case remanded to superior court, with direction to enter judgment for defendant.

HINMAN and MALTBIE, JJ., dissenting.

Donald Gaffney, of New Britain, and Hugh M. Alcorn, of Hartford, for appellant.

Francis P. Rohrmayer and A. A. Katz, both of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES J.

The facts of this proceeding are not in dispute. The plaintiff was convicted on June 18, 1928, by the city police court of Hartford, of operating a motor vehicle while under the influence of liquor. He was again convicted in the same court on October 12, 1929, of a second offense, and sentenced and committed to the Hartford county jail for a period of six months. On December 31, 1929, a judge of that court issued an order purporting to suspend the jail sentence so imposed, and issued an order purporting to place the plaintiff in the custody of the probation officer of that court for one year, and caused the facts to be made a part of the record in the case. The order was directed to the sheriff of Hartford county, who refused to recognize it. The plaintiff thereupon prayed out a writ of habeas corpus which was issued by the superior court for Hartford county. The return made by the defendant in obedience to this writ, set up the provisions of chapter 285 of the Public Acts of 1929, and alleged that the plaintiff was held by the respondent under a mittimus which directed the plaintiff's confinement for six months from and after October 12, 1929, following a conviction of the plaintiff for operating a motor vehicle while under the influence of liquor, second offense, and averring that the judge of the city police court of Hartford was without authority or jurisdiction to suspend the execution of that sentence and order the plaintiff to be placed upon probation for one year in the custody of a probation officer. To this return the plaintiff demurred on the ground that the provisions of the statute referred to, and especially section 2 thereof, showed that the judge did have power to suspend the execution of the sentence and make the order for probation, and that the return was therefore insufficient. The statute in question, chapter 285 of the Public Acts of 1929, appears in the footnote. ^[1]

These opposing views raise the only question presented by this appeal, and its solution requires at our hands a construction of this act.

There are certain well-known and fundamental rules governing the construction of statutes, the primary one being that the purpose and intent of the Legislature shall be ascertained, and, if possible, made effective. " The intention of the legislature should control absolutely, the action of the judiciary; where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment." Sedgwick, Construction of Statutory Law (2d Ed.) p. 325. " * * * You do not legislate but ascertain the purpose of the legislature; and if you can discover what that purpose was, you are bound to enforce it, although you may not approve the motives from which it springs, or the objects which it aims to accomplish. * * *" Beal's Rules of Legal Interpretation (3d Ed.) p. 307, § 3. " The statute law is the will of the legislature; and the object of all judicial interpretation of it is to determine what intention is conveyed, either expressly or by implication, by the language used, so far as it is necessary for determining whether the particular case or state of facts presented to the interpreter, falls within it." Endlich, Interpretation of Statutes, pp. 1-3. " The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent." Sutherland, Statutory Construction (2d Ed.) vol. 2, p. 693; United States v. Chase, 135 U.S. 255, 10 S.Ct. 756, 34 L.Ed. 117; Hartford v. Hartford Theological Seminary, 66 Conn. 475, 34 A. 483; Newton's Appeal, 84 Conn. 234, 241, 79 A. 742; Bridgeman v. Derby, 104 Conn. 1-8, 132 A. 25, 45 A.L.R. 728; State ex rel. Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 149 A. 410.

The plaintiff rests his claim that the action of the judge of the city police court of Hartford was legally authorized upon the second section of chapter 285, Pub. Acts of 1929, saying that sections 1 and 2 of the act " are entirely separate and distinct and have nothing whatsoever to do with each other. * * * It was not the intention to limit the power of the court in section two, to the extent that the court could not suspend the execution of the sentence and place on probation in a case similar to the present one."

Let us examine the position the plaintiff thus takes. Under section 1, literally construed, it is quite apparent that the sentence of this plaintiff could not be suspended; it is specifically forbidden. " * * * The court shall, in no case, suspend the execution of the sentence of an accused convicted of operating a motor vehicle while under the influence of intoxicating liquor if such offense shall have been committed within a period of six years. * * *"

Under section 2, also literally construed, and if standing alone and independent of any other legislation on the same subject, the court was permitted, except in state prison and reformatory cases, " during or after the adjournment of the session at which such commitment was issued, after hearing, [[[to] continue the case or suspend the execution of the sentence and commit the accused to the custody of a probation officer."

The logic of the plaintiff's position then is this: That the two sections of this act should be read and construed literally, and that they stand separate and distinct from each other, but of equal legislative effect; that the Legislature intended by the first section to forbid the release of drunken drivers guilty of second offense; that it intended by the second section to permit the release of such drivers; that the second section leaves the law on this particular subject where it stood before; that, though the obvious intent shown in the first section was to adopt the change recommended by the judicial council, it was also the intent to defeat that result by the provisions of the second section of the same act.

The claim that the two sections of chapter 285 should be read and construed as separate and distinct cannot be sustained by any sound rule of statutory construction. The act is a substitute for, and a repeal of, all prior legislation to which it specifically refers. We must look upon it as a single piece of new legislation enacted as a substitute for the prior provisions.

This conclusion results from another well-known rule of construction which is that all parts of an act are to be construed together, and it is not permissible to rest the construction upon any one part alone. The general intention is the key to the whole act, and the intention of the whole controls the interpretation of all its parts. Endlich, p. 44; Sedgwick, pp. 209, 210; Sutherland, vol. 2, pp. 659, 712; R. C. L., vol. 25, p. 1009; United Society v. Eagle Bank, 7 Conn. 457-470; Bissell v. Butterworth, 97 Conn. 605, 615, 118 A. 50; New Haven Orphan Asylum v. Haggerty, 108 Conn. 232, 239, 142 A. 847; Hartford Builders' Finish Co. v. Anderson, 99 Conn. 343, 352, 122 A. 76; Little Rock R. Co. v. Howell, 31 Ark. 119; Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 L.Ed. 841; Thompson v. Bulson, 78 Ill. 277; Gates v. Salmon, 35 Cal. 576, 95 Am.Dec. 139; Davey v. Burlington R. Co., 31 Iowa, 553; Berry v. Clary, 77 Me. 482, 1 A. 360; State v. Mayor, 35 N.J.Law, 197; Holl v. Deshler, 71 Pa. 299; Catlin v. Hull, 21 Vt. 152.

A legitimate and often helpful means of determining the legislative intent is to examine the history and derivation of the act, and consider the circumstances and conditions known to the Legislature at the time of its enactment. Mattoon's Appeal, 79 Conn. 86, 87, 63 A. 784; Quinebaug Bank v. Tarbox, 20 Conn. 518.

The first legislation in this state on the subject of suspended sentences and probation was chapter 126, Pub. Acts of 1903 which provided for the appointment of probation officers, and gave power to " any court" to pronounce sentence and suspend execution and commit the accused to the Probation Officer for not more than one year. An exception was made of state prison crimes. This was amended by chapter 142, Pub. Acts of 1905, leaving out the provision as to state prison crimes, and these provisions remained until 1907, when a judge was given the authority after the term of court had closed. This was again amended by chapter 106, Pub. Acts of 1911, but with no change pertinent to the present question. It was again amended by chapter 56, Pub. Acts of 1915, and the exception of state prison and reformatory cases was again made, the Act then taking substantially the same form in which it appears in section 6671, Rev. 1918. This was again amended by chapter 71, Pub. Acts of 1919, making verbal changes regarding state prison and reformatory prisoners. Another amendment was made by chapter 175, Pub. Acts of 192...