Wells v. Commonwealth

• Decision Date: 13 June 1907
• Citation: 107 Va. 834,57 S.E. 588
• Parties: WELLS v. COMMONWEALTH.
• Court: Virginia Supreme Court

57 S.E. 588

107 Va. 834

WELLS

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 13, 1907.

Penalties — Collection — Nature of Proceeding—Breach of Sunday Law.

A breach of Code 1904, § 3799, providing that one who labors, or employs his servants to labor, on the Sabbath, shall forfeit $2 for each offense, that from any judgment under the section defendant shall have right of appeal, and, when taken, shall be proceeded in as appeals in misdemeanor offenses, is not a misdemeanor, though the section is found in a chapter which treats of "offenses against morality and decency"; and therefore the forfeiture, even if a fine, is of such a small amount that, under sections 712, 2939, 3904, 3983, recovery cannot be had by a criminal warrant, but must be by civil warrant. Buchanan and Harrison, JJ., dissenting. Error to Circuit Court, Henrico County. Jake Wells was convicted of violating the Sunday law, and brings error. Reversed, and warrant quashed.

W. R. Meredith, for plaintiff in error,

Robert Catlett, Asst. Atty. Gen., for the Commonwealth.

WHITTLE, J. The plaintiff in error, Jake Wells, was arrested, tried, convicted, and fined $2 and costs of prosecution upon a criminal warrant issued by a justice of the peace under section 3799, Code 1904, for a violation of the Sabbath Day. On appeal to the circuit court of Henrico county, the conviction was sustained, and the case is before us on writ of error to the judgment of affirmance.

The initial assignment of error, indeed, the only assignment which demands our attention, questions the correctness of the trial court's action in overruling the motion of the plaintiff in error to quash the warrant, on the ground that the forfeiture imposed by the statute can only be recovered by civil warrant. The contention involves the construction of section 3799. If a violation of that act constitutes a misdemeanor, a justice of the peace has jurisdiction to issue a criminal warrant against the offender, and upon conviction to enforce payment of the fine imposed in the mode prescribed by section 717. If, on the other hand, a breach of the statute is not a misdemeanor, the forfeiture can only be recovered by civil warrant.

The section is as follows: "If a person on the 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 offence. * * * From any judgment rendered under this section, the right of appealshall lie to the defendant within ten days, to the corporation or hustings court of the city, or to the circuit court of the county wherein said judgment is rendered; and when taken shall be proceeded in as appeals in misdemeanor cases."

It will be observed that the statute does not in terms declare that a violation of its provisions shall be a misdemeanor. In fact, the contrary intention is to be inferred both from the provisions and phraseology of the enactment. Thus, if the violation of the act were a misdemeanor, the allowance of an appeal would be unnecessary, since the right of the accused to an appeal in such case is guarantied by section 8 of the Constitution of Virginia and by general statute [section 4107, Va. Code 1904].

Again, the appeal is from "any judgment" rendered under, the section, language applicable to a civil case rather than to a misdemeanor, where the term "conviction" would be more apposite. So, also, it is provided in the last paragraph of the section that the appeal "shall be proceeded in as appeals in misdemeanor cases, " which expression would not only be inappropriate if applied to a misdemeanor, but, moreover, indicates a conscious knowledge on the part of the Legislature that the accused already has the right of appeal in that class of cases.

From this analysis of the statute, we conclude that a violation of the Sabbath law, as set forth in section 3799, cannot be held to be a misdemeanor.

Assuming that the forfeiture is a "fine" within the meaning of section 745, let us next examine the mode prescribed for its collection.

Section 712 provides 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 proceedings shall be in the name of the commonwealth."

Section 3983 devolves upon the grand jury the duty of presenting all felonies, misdemeanors, and violations of penal statutes, "except that no presentment shall be made of a matter for Which there is no corporal punishment, but only a fine, where the fine is limited to an amount not exceeding five dollars." And section 3904 declares "that no fine shall be assessed by a jury, or court, at less than five dollars, or by a justice at less than two dollars and fifty cents, unless otherwise provided by law.

These enactments make it clear that the forfeiture in this case is not recoverable by presentment, indictment, or information un der section 712, while the latter paragraph of the section in terms provides for its recovery by warrant. Applying the rule of noscitur a sociis, the term "warrant" in the connection in which it occurs means civil warrant.

"It is a fundamental principle in the construction of statutes that the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated." 26 Am. & Eng. Enc. L. 608; O. & A. R. Co. v. Alexandria, 17 Grat. 176; Gates v. Richmond, 103 Va. 702, 705, 49 S. E. 965.

This construction of the act is also conformable to section 2939, which provides for the recovery by civil warrant of fines not exceeding $20.

The learned annotator of the Code, In a note to section 3799, observes: "The fine prescribed is recoverable before a justice and by civil warrant." The enactment is similarly construed in Mayo's Guide (Ed. 1892) 616, where it is said: "The offense of working on the Sabbath Day is within the jurisdiction of a justice to try, and should be proceeded against by summons." So, at page 410, it is said: "In addition to this general provision, section 2939, a justice has jurisdiction as by warrant or summons in the nature of a civil proceeding for the enforcement and recovery of fines of $20 and less, under sections 712 and 713 of the Code. It is plain from these sections that, in a proceeding to recover a fine not exceeding $20, the justice can only proceed by a summons to appear, and not by warrant of arrest. It may be well to call the attention of the justice to the distinction to be observed here, that where the fine imposed for a violation of a statute does not exceed $20, and no corporal punishment is or may be added, his only jurisdiction is to proceed by a summons to appear."

Two decisions of this court are invoked by the Attorney General to sustain the judgment under review. Ex parte Marx, 86 Va. 43, 9 S. E. 475, and Jernigan's Case, 104 Va. 850, 52 S. E. 361. In the former case the proceeding was by civil warrant to recover the forfeiture for a violation of the Sabbath. Therefore the statement that the penalty might also have been recovered by warrant of arrest was not necessary to the decision of the case; and the common-law rule, as set forth in the opinion, is, as we have seen, modified by statute. The latter case arose under an act which in terms provides for the arrest and commitment of the offender, unless and until the fine and costs are paid, and is therefore not in point.

The sections of the Code to which we have already referred prescribe the mode of procedure for the recovery of the forfeiture imposed by section 3799 by civil warrant, and afford no authority in such case for proceeding by warrant of arrest.

It may be observed that the inference that might otherwise be drawn from the historyof legislation against Sabbath breaking, that a violation of section 3799 is a misdemeanor, loses its significance in light of the legislative intention plainly manifested by the language of the enactment and kindred statutes to which attention has been called.

Nor does the circumstance that the section is found in chapter 185, which treats of "offences against morality and decency, " indicate that its breach is a misdemeanor. It is a penal statute, passed in the interest of good morals, and is therefore appropriately classified. But, if such were not the fact, this court has repeatedly held that mere collocation of a statute is no conclusive test of its character. City of Danville v. Hatcher, 101 Va. 523, 535, 44 S. E. 723; Litton's Case, 101 Va. 833, 847, 44 S. E. 923.

For these reasons, the judgment must be reversed; and this court will proceed to enter such judgment as the circuit court ought to have rendered, and sustain the motion of the plaintiff in error to quash the warrant.

BUCHANAN, J. (dissenting). I cannot concur in the opinion of the court that a violation of section 3799 of the Code of 1904 is not a misdemeanor. To reach that conclusion, it is necessary to hold that a violation of that section is not a criminal offense, for all offenses which are not felonies are misdemeanors. Code, § 3879; Minor's Crimes & Punishments, p. 17.

The statute prohibits Sunday work with certain exceptions, and imposes a penalty for its violation for the benefit of the state, thus possessing the essential elements of a criminal statute. Jernigan's Case, 104 Va. 850, 52 S. E. 361, and authorities cited.

The history of the legislation on the subject I think shows that the statute is a part of the criminal law of the state, and its violation a misdemeanor.

In the year 1779 an act was passed, entitled "An act for punishing...