Parte v. Marx

• Citation: 9 S.E. 475, 86 Va. 40
• Case Date: April 18, 1889
• Court: Supreme Court of Virginia

9 S.E. 475
(86 Va. 40)

Ex parte
v.
Marx.

Supreme Court of Appeals of Virginia.

April 18, 1889.

Sabbath-Breaking-— Habeas Corpus—Trial by Jury.

1. Code Va. § 3799, provides that "if a person on a Sabbath day be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except household or other work of necessity or charity, he shall forfeit two dollars for each offense." Section 2939 provides that any claim to a fine not exceeding $20, which would be recoverable by an action at law, shall be cognizable by a justice; the proceeding to be by civil warrant, as in the case of other small claims therein enumerated. Section 717 provides that, "when any fine is imposed by a justice, he may commit the defendant to jail until the fine and costs are paid, or until the costs are paid, where there is no fine, but he shall not issue any execution therefor. " Held, that the fine prescribed for violation of the Sabbath is recoverable before a justice, and by a civil warrant.

2. Where the justice has jurisdiction, and the case has been conducted in strict conformity with the established rules of procedure in such cases, the sufficiency of the evidence upon which the judgment is based cannot be inquired into on ha-beas corpus.

3. The provision of Code, § 3035, that affidavits taken on reasonable notice may be read, in the discretion of the court or judge, in habeas corpus proceedings, refers only to such affidavits as are introduced to show illegality, and not mere irregularity, in the detention of the prisoner; and it does not authorize a review of the sufficiency of the evidence.

[9 S.E. 476]

4. Where the statute provides that a defendant who is adjudged to pay a fine may be committed until the fine is paid, but prescribes no particular length of imprisonment, a commitment to jail "for the term of one year, unless the said fine be sooner paid, " etc., is unwarranted, and the prisoner will be discharged on habeas corpus.

5. The constitutional right of trial by jury does not extend to the petty offense of laboring on the Sabbath, punishable by a small fine, and cognizable by a justice.

Habeas corpus.

Courtney et-Patterson, for petitioner. R. C. Baiston and R. Q. Bickford, for respondent.

Lewis, P. In December, 1888, a judgment for a fine of two dollars and costs was rendered by Stephen West, a justice of the peace of Warwick county, against the petitioner, Oscar Marx, a Jew, for unlawfully carrying on his business as a retail merchant on a Sabbath day. Upon the rendition of the judgment the petitioner expressed to the justice a determination not to pay it, whereupon he was committed by the justice to the jail of the said county. The mittimus commands the jailer to receive the said Marx into his jail, "and there him safely keep for the term of one year, unless the said sum shall be sooner paid, or until he be otherwise discharged by due course of law." The petitioner thereupon, by his counsel, applied to this court for a writ of habeas corpus, which was awarded, and to which return has been made, setting forth in detail the facts just mentioned. He insists that he is illegally restrained of his liberty on three grounds: (1) Because the justice by whom the judgment was rendered had no jurisdiction to proceed against him, and therefore that the proceedings were coram non judice and void; (2) because the conviction is not warranted by the evidence; and (3) because, even if the justice had jurisdiction of the case, the commitment is void, because it transcends the power of the justice.

1. Section 3799 of the Code provides that "if a person on a Sabbath day be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall forfeit two dollars for each offense; every day any servant or apprentice is so employed constituting a distinct offense." The section immediately following, however, excepts from the operation of the law "any person who conscientiously believes that the seventh day of the week ought to be observed as a Sabbath, and actually refrains from all secular business and labor on that day: provided, he does not compel an apprentice or servant not of his belief to do secular work or business on a Sunday, and does not on that day disturb any other person." The word "forfeit" here used is synonymous with "fine." Section 745. And the question, therefore, in this connection is, how is such fine to be enforced or collected, if it is collectable by judicial process at all?

Section 712 enacts that "where any statute imposes a fine, unless it be otherwise expressly provided or would be inconsistent with the manifest intention of the general assembly, it shall be to the commonwealth, and recoverable by presentment, indictment, or information. Where a fine without corporal punishment is prescribed the same may be recovered, if limited to an amount not exceeding twenty dollars, by warrant, and if not so limited, by action of debt, or action on the case, or by motion. The proceeding shall be in the name of the commonwealth." It is also provided by section 2939, which relates to "warrants for small claims, " that any claim to a fine not exceeding twenty dollars, which would be recoverable by an action at law, shall be cognizable by a justice, the proceeding to be by civil warrant, as in the case of other small claims enumerated in the same section. And by section 717 it is enacted that, "when any fine is imposed by a justice, he may commit the defendant to jail until the fine and costs are paid, or until the costs are paid, where there is no fine, but he shall not issue any execution therefor." And this provision must be construed as giving the only means for carrying into effect a judgment of a justice for a fine in any case, civil or criminal. In other words, what would seem to be an implied authority to issue & fi. fa. upon a judgment for a fine under section 2948, relating to executions on judgments for small claims, is controlled by the express prohibition contained in section 717, which applies to all cases in which any fine is imposed by a justice; the term "impose" applying as well to the rendition of a judgment for a fine in a civil as in a criminal case. By the act of March 14, 1878, (Acts 1877-78, p. 377.) a justice was empowered in certain cases to issue an execution of fl.fa. or a capias pro fine for fines imposed by him, but that provision has been repealed.

It is thus apparent that not only is the statutory fine prescribed for a violation of the Sabbath recoverable before a justice, but there are in fact two remedies for such...