State ex rel. Titus v. Hayes

Decision Date19 October 1965
Docket NumberNo. 12499,12499
Citation144 S.E.2d 502,150 W.Va. 151
PartiesSTATE ex rel. Paul TITUS v. Gerald L. HAYES, Sheriff of Lewis County, West Virginia.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. A defendant may not be imprisoned for the nonpayment of taxable costs unless imprisonment for the nonpayment of such costs is authorized by statute.

2. The charge of $2.00 for a justice of the peace for prearing a bond or recognizance to be paid by the defendant, as provided by Section 11, Article 17, Chapter 50, Code, 1931, as amended, is not an item of costs incident to the prosecution but is a fee to compensate the justice for his services in preparing an appeal bond or recognizance after the conviction of the defendant; and in the absence of statutory authority the defendant can not be imprisoned for the nonpayment of such fee.

3. An order of a justice of the peace committing a defendant to jail for the nonpayment of a fee of $2.00 for preparing an appeal bond or recognizance, as provided by Section 11, Article 17, Chapter 50, Code, 1931, as amended, not being authorized by statute, is null and void and its enforcement will be prevented in a habeas corpus proceeding.

4. 'A judgment which is wholly void, or is void in part, is subject to collateral attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding.' Point 5, Syllabus, State ex rel. Beckett v. Boles, 149 W.Va. 112 .

5. When it is not necessary in the decision of a case to determine the question of the constitutionality of a statute, this Court will not consider or determine such question.

Linn Mapel Brannon, Weston, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge.

This is an original habeas corpus proceeding instituted in this Court on September 2, 1965, in which the petitioner, Paul Titus, seeks a writ to require the defendant, Gerald L. Hayes, Sheriff of Lewis County, West Virginia, to release the petitioner from his confinement in the county jail of Lewis County, to which he was committed by order of Wm. I. Marsh, a Justice of the Peace of Lewis County, on August 30, 1965. On that day the petitioner was found guilty by the justice of the offense of having been intoxicated in a public place and the justice imposed a fine of $10.00 and costs in the amount of $7.00. The petitioner then made application for an appeal which was granted by the justice and the petitioner executed an appeal bond, with sufficient surety, in the penalty of $500.00, conditioned for the appearance of the petitioner before the Circuit Court of Lewis County on the first day of the next term to answer the offense with which he was charged and not to depart without leave of the court, which bond was approved by the justice. The justice then demanded that the petitioner pay him the statutory fee of $2.00 for preparing the appeal bond. This the petitioner, who is not an indigent person, refused to do upon advice of his attorney, and upon such refusal the justice entered an order committing the petitioner to the Lewis County jail, where he was confined at the time of the institution of this proceeding.

Upon the petition and its exhibits this Court granted a writ returnable September 21, 1965 and admitted the petitioner to bail upon his execution of a bond with good surety, in the penalty of $100.00, conditioned for his appearance before this Court on September 21, 1965 and until the final disposition of this proceeding by this Court and caused its action to be certified to the Circuit Court of Lewis County.

Upon the return day of the writ, at which time the petitioner appeared in person, this proceeding, together with a mandamus proceeding instituted by the petitioner against Wm. I. Marsh, Justice of the Peace, in which the petitioner challenges the validity of the commitment order involved in this proceeding, was heard and submitted for decision upon the petition and its exhibits, and the demurrer and the return of the defendant, and upon the written briefs and the oral arguments of the attorneys representing the respective parties.

The petitioner contends that the order of the justice committing him to jail because of his refusal to pay the sum of $2.00 to the justice for preparing the appeal bond or recognizance was unauthorized and for that reason was null and void and of no force and effect, and that the action of the justice in committing him to jail for his refusal to pay the sum of $2.00 amounts to 'buying justice' and is violative of Article III, Section 17 of the Constitution of this State which provides that 'The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.'

On the contrary the defendant insists that the commitment order is valid by virtue of Section 11, Article 17, Chapter 50, Code, 1931, as amended, which provides that when a justice of the peace prepares a bond or recognizance he shall be allowed a fee of $2.00 to be paid by the defendant, and by virtue of Section 9, Article 18, Chapter 50, Code, 1931, which provides that when a fine is imposed, whether with or without imprisonment and whether execution be issued for such fine and costs, a justice may adjudge the defendant to be imprisoned until such fine and all the costs are paid, but not to exceed ten days, for that cause; and, if fine and imprisonment be imposed, the defendant may be imprisoned for not exceeding ten days on account of the nonpayment of the fine and costs, in addition to the term of imprisonment imposed for the offense.

The only costs assessed and imposed by the justice were his costs of $4.00 for all official services performed by him in connection with the trial of the case as provided by Section 11, Article 17, Chapter 50, Code, 1931, as amended, and the sheriff's fee of $3.00, or a total amount of costs of $7.00. The item of $2.00 for preparing the appeal bond or recognizance is not a part of the costs of the case and was not included in the taxation of costs by the justice but was charged for services rendered subsequent to his trial and conviction.

In 20 C.J.S., Costs, § 453, the text contains this language with respect to costs: 'The term costs ordinarily includes only items in connection with the actual presentation of testimony and the fees of specified officers, and the courts are reluctant to extend the term beyond its accepted meaning.' In City of Carterville v. Cardwell, 152 Mo.App. 32, 132 S.W. 745, the court said 'Costs in criminal proceedings are those charges fixed by law which have been necessarily incurred in the prosecution of one charged with a public offense as compensation to the officers for their services.' As the $2.00 charge of the justice for preparing the appeal bond or recognizance was for services rendered after final judgment had been rendered in the case and was for the purpose of perfecting an appeal to the circuit court, to which appeal the petitioner was entitled as a matter of right and to be discharged from custody upon the execution of a properly conditioned recognizance, Vetock v. Hufford, 74 W.Va. 785, 82 S.E. 1099, the charge is not an item of costs incident to the prosecution of the petitioner but is instead a fee to compensate the justice for his services in perparing the foregoing obligation after the conviction of the petitioner. In Sears v. Fisher, 101 W.Va. 157, 132 S.E. 200, decided in 1926, this Court, in holding that the expense of keeping a prisoner after conviction was not a proper item of costs under Section 11, Chapter 161 of the Code of 1923 then in effect, which is now Section 7, Article 5, Chapter 62, Code, 1931, said that the section impliedly limits the expenses to be included in the taxation of costs to those expenses incident to the prosecution which accrue before conviction.

The principle is well established that a defendant may not be imprisoned for taxable costs unless imprisonment for the nonpayment of such costs is authorized by statute. In 20 C.J.S., Costs, § 464, the text is in this language: 'It is very generally held that defendant cannot be imprisoned for costs in the absence of statutory authority therefor. Defendant may be imprisoned for the nonpayment of costs when so provided by statute, but such a statute is highly penal in its nature and should be strictly construed, and the intent of the legislature must clearly appear.' From the foregoing authorities it is manifest that a defendant may not be imprisoned for the nonpayment of taxable costs unless imprisonment for the nonpayment of such costs is authorized by statute.

It is significant that Section 11, Article 17, Chapter 50, Code, 1931, as amended, which declares that a justice of the peace shall be allowed an additional fee of $2.00 'for bond or recognizance, to be paid by defendant.', does not provide that the defendant shall be imprisoned for refusal to pay the fee of the justice or authorize the justice to commit him to jail for refusal to pay such fee. It is obvious that the charge of $2.00 for a justice of the peace for preparing a bond or recognizance to be paid by the defendant, as provided by Section 11, Article 17, Chapter 50, Code, 1931, as amended, is not an item of costs incident to the prosecution but is a fee to compensate the justice for his services in preparing an appeal bond or recognizance after the conviction of the defendant; and in the absence of statutory authority the defendant can not be imprisoned for the nonpayment of such fee. As a defendant can not be imprisoned for his refusal to pay costs, in the absence of statutory...

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13 cases
  • State ex rel. Moats v. Janco, 12979
    • United States
    • West Virginia Supreme Court
    • 16 d2 Março d2 1971
    ...of Section 11 without overruling a long line of decisions of this Court. This is the fifth syllabus point of State ex rel. Titus v. Hayes, 150 W.Va. 151, 144 S.E.2d 502 (1965): 'When it is not necessary in the decision of a case to determine the question of the constitutionality of a statut......
  • State ex rel. Muldrew v. Boles, 12687
    • United States
    • West Virginia Supreme Court
    • 23 d2 Janeiro d2 1968
    ...is subject to collateral attack and enforcement of such judgment will be prevented in a habeas corpus proceeding. State ex rel. Titus v. Hayes, 150 W.Va. 151, 144 S.E.2d 502; State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322; State ex rel. Bullett v. Boles, 149 W.Va. 700, 143 S.......
  • Morris v. Painter, 29758.
    • United States
    • West Virginia Supreme Court
    • 3 d3 Julho d3 2002
    ...confinement[.]" Syl. pt. 1, in part, Tasker v. Griffith, 160 W.Va. 739, 238 S.E.2d 229 (1977). See also State ex rel. Titus v. Hayes, 150 W.Va. 151, 159, 144 S.E.2d 502, 508 (1965) ("The primary object of habeas corpus is to determine the legality of the restraint under which a person is he......
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    • 14 d1 Junho d1 2021
    ...question of the constitutionality of a statute, this Court will not consider or determine such question." Syl. Pt. 5, State ex rel. Titus v. Hayes, 150 W.Va. 151, 144 S.E.2d 502 (1965); accord Syl. Pt. 1, Priester v. Hawkins, 168 W. Va. 569, 285 S.E.2d 396 (1981). It is unnecessary to addre......
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