People ex rel. Birkholz v. Jonas

• Decision Date: 09 June 1898
• Citation: 50 N.E. 1051,173 Ill. 316
• Parties: PEOPLE ex rel. BIRKHOLZ v. JONAS.
• Court: Illinois Supreme Court

173 Ill. 316

50 N.E. 1051

PEOPLE ex rel. BIRKHOLZ

v.JONAS.

Supreme Court of Illinois.

June 9, 1898.

Original petition by the people, on relation of August W. Birkholz, against Michael M. Jonas, for a writ of habeas corpus. Denied.

James Lane Allen, for petitioner.

PHILLIPS, J.

This is an original petition by August W. Birkholz for a writ of habeas corpus. The petition sets forth that said Birkholz is restrained of his liberty by Michael M. Jonas, a constable of Cook county, and that he is ordered to be committed to and imprisoned in the common jail of said Cook county by virtue of a certain mittimus or warrant for his arrest and commitment issued by John Richardson, a justice of the peace in and for said Cook county. The mittimus in question, which is attached to the petition, and made a part thereof, will sufficiently show the grounds of this application. Said mittimus is as follows: ‘State of Illinois, County of Cook-ss.: The people of the state of Illinois to the sheriff or any constable of said county, greeting: Whereas, in a certain proceeding before John Rockardson, a justice of the peace in and for said county, under and by virtue of an act to regulate the practice of medicine in the state of Illinois, approved June 16, 1887, wherein the people of the state of Illinois, for the use of the state board of health, were plaintiffs, and A. W. Birkholz was defendant, said proceedings being an action for debt brought against said defendant, A. W. Birkholz, for a refusal to comply with the provisions of the aforesaid act, to wit, to obtain a license under said act to practice medicine, and that the defendant, A. W. Birkholz, has been practicing medicine within said county and state without any such aforesaid license, and in violation of the aforesaid act; and whereas, on this day, after a trial before a jury in the above-entitled cause, said jury rendered a verdict in favor of the plaintiff, the people of the state of Illinois, for the use of the state board of health, and assessed the damages of the plaintiff at one hundred dollars; and whereas, judgment was immediately rendered on said verdict against the defendant, A. W. Birkholz, for one hundred (100) dollars and costs of suit, herein taxed at twelve dollars and fifty cents, and the court did as a part of said judgment, order that the defendant, A. W. Birkholz, be committed to the common jail of the county of Cook until said fine and costs are paid, and said defendant, A. W. Birkholz, having failed and refused to pay said judgment immediately, and having refused and failed to appeal from said judgment: Now, therefore, we command that you arrest the said A. W. Birkholz, and unless the said A. W. Birkholz shall pay the amount of the said judgment, that you commit him to the common jail of the said county, and to the custody of the keeper thereof, there to remain in safe and secure custody until the said judgment, amounting to one hundred dollars and costs of suit, taxed at twelve dollars and fifty cents, shall be fully satisfied, or until discharged by authority of law; and for so doing this shall be your sufficient command. Witness my hand and seal this 7th day of June, A. D. 1898. Jno. Richardson, J. P. [Seal.]’

The act regulating the practice of medicine and surgery in this state, under which the above mittimus was issued, after providing certain penalties to be recovered by the people for the use of the state board of health against persons practicing contrary to its provisions, contains the following section: ‘Upon conviction of either of the offenses mentioned in this act, the court shall, as part of the judgment, order that the defendant be committed to the common jail of the county until the fine and costs are paid, and upon failure to pay the same immediately, the defendant shall be...