People ex rel. Strickland v. Bartow

Christiancy, Oh. J. This was an application for1 a mandamus to compel the-respondent, a circuit court commissioner for the county of Clinton, to make an order to hold Ann E. Sbireling to bail upon a capias issued against her from the circuit court for that county, at the suit of the people in an action of debt, to recover a penalty for selling intoxicating liquors in violation of section three of an act entitled, “An act to prevent the manufacture and sale of intoxicating liquors as a beverage” (Comp. L. 1871, § 2138). The commissioner refused to make the order, on the ground that said Ann E. Sbireling, being a female, could not be imprisoned on. any process in a civil action; for which he relies upon, [69] section 45 of chapter 192, Compiled Laws of 1871, entitled, “Judgments and Executions,” which section is in these words: “No female shall be imprisoned on any process in any civil action.” The relator, however, insists that this action, though it be an action of debt, and civil in form, yet, being for a penalty for an act which might be punished as a misdemeanor, under section 6851, Compiled Laws of 1871, if not under section three of this act, as amended in 1871; it is really and in substance a criminal prosecution. We do not think it necessary to determine whether the act for which the penalty is given in the present case would constitute a misdemeanor, and might be prosecuted as such by. indictment or information; since, admitting this to be so for the purposes of this case, we are still of the opinion that the action of debt provided for by section eight of the Liquor Law (Comp. L. 1871, § 2141), is to be treated as a civil action and that it takes the character and incidents of a civil suit and not of a criminal prosecution. We think, therefore, the case comes within the prohibition of the statute above cited, which declares that “No female shall be imprisoned on any process in any civil action.” But, it is insisted that, if such be the case, still this statute must be regard as repealed by section 10 .of the Liquor Law (Comp. L. 1871, § 2143) above cited, which gives the right to commence a suit for the penalty, and provides for taking bail, without making any exception of female defendants. But we do not think the legislature intended by this general provision, to repeal the statute in question, and to subject females to imprisonment in this or other civil action. This provision against the impi’isonment of females on process in civil action is found in the Revised Statutes of 1838, Part 3, Title 2, ch. 7, § 44 and was put in its present form in the Revised Statutes of 1846, ch. 106, § 45. In both revisions it is found in the chapter entitled, “Judgments and Executions,” and was intended, we think, to declare the settled policy of the state in this respect. And [70] all later acts giving the right generally to commence suits by capias, or to imprison a defendant, must be understood to have been enacted with reference to this policy, and, by implication, as intended to be subject to the exception or qualification declared by this statute, unless expressly or by necessary implication otherwise provided. Such, we see no reason to doubt, was the intention of the legislature. We think, therefore, tbe commissioner was right in refusing his order for bail in this case; and tbe application for a mandamus must be denied, with costs against tbe relator. The other Justices concurred.