Parte v. Marx

• Citation: 9 S.E. 475,86 Va. 40
• Court: Supreme Court of Virginia
• Decision Date: 18 April 1889
• Parties: Ex parte v. Marx.

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.

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 recovery. The first is by warrant of arrest, or a criminal prosecution; for the rule at common law is that, where a statute gives a justice jurisdiction over an offense, it impliedly gives him power to apprehend any person charged with such offense. Bac. Abr. tit. "Justices of Peace, " E 5. And the second is by a civil warrant. The latter remedy was pursued in the present case, the proceeding having been commenced by a summons, in the form of an ordinary warrant in civil cases, and not by warrant of arrest; so that much of the argument, as to the validity of a conviction in any criminal case where the right of a jury trial is denied the defendant, is not applicable to the case before us. The warrant also set forth with technical precision the charge upon which the proceeding was based; that is to say, that the defendant, on a certain Sabbath day, did labor at his trade and calling, as a retail merchant, etc., which was neither a work of necessity nor charity, etc., —thus following the rule of pleading a statute, which is that if there is an exception in the enacting clause the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause or section, or a subsequent statute, that is matter of defense, and is to be shown by the other party. 1 Chit. PL 223; 1 Bish. Crim. Proc. § 378. No point, however, is made upon the form of the warrant.

2. The case, therefore, was not only within the jurisdiction of the justice, but it was brought and conducted in strict conformity with the established rules of procedure in such cases, and hence the petitioner's second ground of objection—namely, that the conviction is not warranted by the evidence— cannot be maintained. The writ of habeas corpus is not a writ of error. It deals not with mere errors or irregularities, but only with such radical defects as render a proceeding absolutely void. It brings up the body of the prisoner, with the cause of his commitment, and the court can inquire into the sufficiency of that cause. But if he be detained in prison by virtue of a judgment of a court of competent jurisdiction, that judgment is in itself sufficient cause. An imprisonment under a judgment cannot be unlawful unless that judgment be an absolute nullity, and it is not a nullity if the court or magistrate which rendered it had jurisdiction to render it. Ex parte Watkins, 3 Pet. 193; Ex parte Kollins, 80 Va. 314.

The rule is very clearly stated in Ex parte Parks, 93 U. S. 18, as follows: "Where the prisoner is in execution upon a conviction, the writ ought not to be issued, or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offense, and did not act beyond the powers conferred...