Mozorosky v. Hurlburt

• Decision Date: 16 January 1923
• Citation: 211 P. 893,106 Or. 274
• Parties: MOZOROSKY v. HURLBURT.
• Court: Oregon Supreme Court

211 P. 893

106 Or. 274

MOZOROSKY v. HURLBURT.

Supreme Court of Oregon

January 16, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Application for a writ of habeas corpus by Jos. Mozorosky against T. M Hurlburt. From an order sustaining the demurrer to plaintiff's petition, he appeals. Affirmed.

This application involves the denial of the petition of one Jos Mozorosky for a writ of habeas corpus. From a copy of the complaint attached to and made a part of the petition herein it appears that the petitioner was a defendant in an action prosecuted by one Sol Swire as plaintiff, for the purpose of recovering the sum of $1,600, double the amount of Swire's losses at a gambling table conducted by Jos Mozorosky. The complaint shows that Jos. Mozorosky, petitioner herein and the defendant in the above-mentioned action, "operated and conducted, as proprietor, a gambling place at First and Sheridan streets, in the city of Portland, Or., where games of cards were played for money, on all of which said games defendant collected a percentage from the winner." Between July 15 and August 15, 1919, Swire lost $150 at poker, at Mozorosky's gambling table, and between December 1, 1919, and March 31, 1920, he lost, at poker, the sum of $650 at the same table, making a total of $800 of Swire's money that was passed over the gambling tables conducted by Mozorosky. It further apears from the pleading that Mozorosky kept the money. The plaintiff Swire based his action on section 8264, Or. L. Upon a trial by jury, a verdict was returned in accordance with the allegations of the complaint.

The petitioner was arrested on April 16, 1921, by virtue of the provisions of sections 218 and 259, Or. L. This proceeding was instituted in the circuit court to obtain his release. From an order sustaining a demurrer to plaintiff's petition, an appeal was taken to this court. Bail having been denied by the circuit court pending the appeal, the matter came here for decision, and this court held, in Mozorosky v. Hurlburt, decided June 3, 1921, 198 P. 556, 15 A. L. R. 1076, that the petitioner was entitled to be admitted to bail pending his appeal, and his bail was fixed at $2,000, "conditioned that if his imprisonment on execution be adjudged to be lawful upon the appeal, he will surrender himself to the custody of the sheriff of Mulnomah county for continuance of such imprisonment or pay the judgment upon which the execution was issued. * * *"

The assignment of error relates to the validity of the arrest.

Thomas Mannix and Dan E. Powers, both of Portland, for appellant.

Henry E. McGinn and Edward J. Brazell, both of Portland, for respondent.

BROWN, J. (after stating the facts as above).

The ground urged for the granting of the writ of habeas corpus was that the petitioner is being imprisoned for debt in violation of article 1, § 19, of the Constitution of Oregon, which provides: "There shall be no imprisonment for debt except in case of fraud or absconding debtors."

As noted above, the judgment was recovered under our statute defining and prohibiting unlawful gaming. The provisions of the Code asserted to justify the arrest of the petitioner read, in part, as follows:

"No person shall be arrested in an action at law, except as provided in this section. The defendant may be arrested in the following cases:

"(1) In an action * * * for * * * wrongfully taking, detaining or converting property;

"(2) In an action for a fine or penalty; * * *

"(4) When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought. * * *" Section 259, Or. L.

Is the petitioner within the protection of the constitutional prohibition invoked in his behalf?

The term "debtor" has various shades of meaning.

"It is well settled that prohibitions of imprisonment for debt apply only to actions arising out of contracts,

express or implied, and do not extend to actions ex delicto." 23 C.J., Executions, § 1109.

"Fines, forfeitures, or penalties imposed by law are not debts, and hence actions for the recovery or collection thereof are not within the purview of constitutional or statutory prohibitions against imprisonment for debt. * * *" 23 C.J., Executions, § 1108.

It is said by the editors of R. C. L., under the title "Executions":

"As most of the constitutional provisions against imprisonment for debt relate only to debts arising out of contracts, in many states the right to imprison in actions for tort, particularly when fraud is involved, as well as in proceedings of a criminal or quasi criminal character, still exists. The authorities almost unanimously hold that the debt intended to be covered by the constitutional provisions must be a debt arising exclusively from actions ex contractu, and was never meant to include damages arising in actions ex delicto, or fines, penalties, and other impositions imposed by the courts in criminal proceedings as punishments for crimes committed against the common or statute law." 10 R. C. L. 175. See note, 34 L. R. A. 634 et seq.

"The term (debt) neither includes torts nor judgments for torts: Savage v. Shaw, 81 N.E. 303, 195 Mass. 571, 122 Am. St. Rep. 272, 12 Ann. Cas. 806 (citing Child v. Boston & Fairhaven Iron Works, 137 Mass. 516, 50 Am. Rep. 328; Heacock v. Sherman, 14 Wend. (N. Y.) 58; Chase v. Curtis, 5 Sup. Ct. 554, 113 U.S. 452, 28 L.Ed. 1038; Leighton v. Campbell, 20 A. 14, 17 R.I. 51, 9 L. R. A. 187; Bohn v. Brown, 33 Mich. 257; Cable v. McCune, 26 Mo. 371, 72 Am. Dec. 214; Cable v. Gaty, 34 Mo. 573, 86 Am. Dec. 126; Doolittle v. Marsh, 9 N.W. 54, 11 Neb. 243)." 1 Words and Phrases, Second Series, 1231.

In a note to Ex parte Berry, 20 Ann. Cas. 1344, it is said by the annotator:

"The Constitutions or statutes of many states declare that no person shall be imprisoned for debt, exceptions to this broad prohibition appearing in some instances. The purpose of such a provision is to abolish imprisonment for debt as it was practiced at common law. Accordingly, where a debt is the basis of a civil action there can be lawfully no imprisonment of the debtor.

"But where a person incurs civil liability by a wrongful act, the constitutional or statutory provision has no application and he lawfully may be imprisoned because of such act."

Among the numerous citations contained in the note is United States v. Walsh, 1 Abb. 66, Deady, 281, 28 F. Cas. No. 16635, p. 391. Judge Deady was president of the constitutional convention of this state, and his interpretation of article 1, § 19, reading, "There shall be no imprisonment for debt, except in case of fraud or absconding debtors," is illuminating.

The case of United States v. Walsh is a leading one, and has often been cited by textwriters and courts. Judge Deady wrote:

"Counsel for the defendant maintains that this act of the Legislative Assembly is in this particular repugnant to the Constitution of the state, and therefore void. * * * The word 'debt' is of very general use, and has many shades of meaning. Looking to the origin and progress of the change in public opinion, which finally led to the abolition of imprisonment for debt, it is reasonable to presume that this provision in the state Constitution was intended to prevent the useless and often cruel imprisonment of persons who, having honestly become indebted to another, are unable to pay as they undertook and promised. In this view of the matter the clause in question should be construed as if it read: 'There shall be no imprisonment for debt arising upon contract express or implied, except,' etc. Such is substantially the language employed in the legislative acts of most of the states, abolishing imprisonment for debt; and there can be but little doubt that this was the end which the framers of the Constitution had in view, as well as the popular understanding of the clause, when the instrument was adopted at the polls.

"General or abstract declarations in bills of rights are necessarily brief and comprehensive in their terms. When applied to the details of the varied affairs of life, they must be construed with reference to the causes which produced them and the end sought to be obtained. A person who willfully injures another in person, property or character, is liable therefor in damages. In some sense he may be called the debtor of the party injured, and the sum due for the injury a debt. But he is, in fact, a wrongdoer, a trespasser, and does not come within the reason of the rule which exempts an honest man from imprisonment, because he is pecuniarily unable to pay what he promised to. For instance, a person who wrongfully beats his neighbor, kills his ox, or girdles his fruit trees ought not to be considered in the same category as an unfortunate debtor. He ought to be liable to arrest in action for damages by the party injured. Deny him this remedy, and in the majority of such cases it would amount to a denial of justice, and a deliberate repudiation and disregard of the injunction contained in section 10 of the same article-- 'Every man shall have remedy by due course of law for injury done him in person, property or reputation.' It may be admitted that a penalty given by statute is technically a debt. It does not, however, arise upon contract, but by operation of law. It is imposed as a quasi punishment for the violation of law or the neglect or refusal to perform some duty to the public or individuals enjoined by law. Penalties are imposed in furtherance of some public policy, and as the means of securing obedience to law. Persons who incur them are either in morals or law wrongdoers, and not simply unfortunate debtors unable to perform their pecuniary obligations. I do not think the constitutional

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