Carruth v. Taylor

Wallin, J. This record discloses the following facts: The petitioner, E. C. Carruth, was arrested in the County of Grand Forks upon a warrant charging him with the offense of criminal libel. Said arrest was made by one E. C. Taylor, who was the sheriff of Burleigh county, and who acted in making the arrest under and by virtue of said warrant, which warrant was issued by a justice — 168 — of the peace of Burleigh county, and was regular upon its face. Subsequent to said arrest, and upon an application therefor made by the petitioner to the District Court for Grand Forks county, the writ of habeas corpus issued out of said Court, commanding said sheriff to make return to said writ, and bring the petitioner before said Court, together with the cause of his detention. In obedience to the writ the petitioner was brought before said Court, and the cause of his arrest was there inquired into and considered; and that Court determined that the petitioner was not unlawfully restrained of his liberty, and entered an order remanding the petitioner to the custody of the sheriff. The petitioner has attempted to appeal to this Court from said order, and, with that end in view, has served a notice of appeal upon the state’s attorney for Grand Forks county, and upon the attorney for said sheriff, ancl has filed such notice with the clerk of the District Court for Grand Forks county. The petitioner also filed an undertaking in the usual form for the costs and damages incident to such appeal, in the sum of $250. In addition to said undertaking for costs, the petitioner filed with the clerk of the District Court an undertaking, in the nature of a stay or surpersedes, in the sum of $100, which undertaking was filed in conformity to an order of said Court staying the performance of the remanding order. Pursuant to said notice of appeal and proceedings, the clerk of the District Court has transmitted the entire record to this Court. In the view we have taken of the case, it will be unnecessary to set. out the grounds upon which the petitioner claims that he is entitled to be discharged from custody. Respondent’s contention is that this Court is without authority to review the adjudcation of the District Court which culminated in the remanding order. If the respondent’s contention is sustained,- — and we think it must be, — it follows that this Court is without authority to determine any of the questions touching the merits appearing in the record. The notice of appeal is entitled as follows: “E. C. Carruth, Petitioner, vs. E. C. Taylor, Defendant.” Assuming that an appeal will lie, this is an irregularity, inasmuch as the proper parties in habeas corpus are the state and the petitioner. But the notice was served upon the state’s attorney of Grand Forks county, which officer, for the purposes of habeas corpus, represents the state in the court below. ' Rev. Codes, § 8669. As the petition is regular in other respects, it can be upheld as sufficient in substance; and this minor matter is adverted to only for the purpose of indicating the proper title -of the habeas corpus proceeding, and also for the purpose of calling attention to the important consideration that the state, as such, in issuing his prerogative writ, is a party to the proceeding. It is elementary that the right of appeal is a statutory right, and this rulé is especially applicable in habeas corpus cases, as many states, have held that the decisions in this class of cases are not reviewable under a general law allowing an appeal from all final judgments. See Howe v. State, 9 Mo. 403; Ex parte Jilz, 64 Mo. 205. In Michigan the rule is that in habeas corpus an order dis — 169 — charging the petitioner is not reviewable on writ of error. People v. Conant, 59 Mich. 565, 26 N._ W. Rep. 768. The general rule is indicated by the language of ’the Court in the case last cited. The Court say, “We know of no statute or practice allowing the people the right to bring error for the purpose of obtaining a review of the proceedings in the Circuit Court when the prisoner has been discharged, in this class of cases.” In Iowa, where the right of appeal in this class of cases is expressly conferred by statute, it is held that an order discharging the petitioner is not appealable. In State v. Kirkpatrick, 54 Iowa, 373, 6 N. W. Rep. 588, the Court say, “In a habeas corpus proceeding an order of discharge made by the Court cannot be superseded pending an appeal.” It must be conceded, however, that in some states the right of appeal has been expressly granted by the legislature. This is true of the State of New Yorki! In other states it has been held, as in Minnesota and South Dakota/ that a final order in a habeas corpus proceeding is appealable miden a statute which gives an appeal from a final order affecting a subJ stantial right made in a special proceeding. See Rev. Codes, § 5626; Comp. Laws, § 5236; State v. Buckham, 29 Minn. 462, 13 N. W. Rep. 902; Winton v. Knott (S. D.) 63 N. W. Rep. 783; In re Hammill (S. D.) 69 N. W. Rep. 577. Under the Minnesota and South Dakota cases, construing a statute indentical in its language with section 5626 of the Revised Codes, the appellant’s counsel claims that the order of the District Court in this case is an appealable order. The citations of counsel are squarely in point, and it must be conceded that they furnish a strong support for the appellant’s contention. It would clearly be the duty of this Court to rule in accordance with this authority, unless this Court, after mature and conscientious deliberation, shall be convinced that to yield its assent to the rule would operate practically to subvert constitutional safeguards and the fundamental rights of the citizen. We do not think that the legislature of this state ever intended to give an appeal to either party in a habeas corpus case, nor do the cases last cited do more than to declare in arbitrary terms the contrary rule. The matter seems to have been taken for granted by the learned Courts whose decisions are cited. In State v: Buck-ham the Court say: “A proceeding in habeas corpus is a special proceeding, not only because it is not an ordinary civil action, but because it is so expressly classified in our statutes.” It is true that this proceeding is not a civil action, nor is it a criminal action; but the argument that the proceeding is classified as a special proceeding cannot be urged in this jurisdiction, because such is not the fact. The habeas corpus statute in this state is embodied in the Code of Criminal Procedure, and constitutes chapter 20 of that Code. Rev. Codes, § § 8648, 8688. The first section of that Code is as follows: “This act shall be known as the Code of Criminal Procedure of the State of North Dakota.” Rev. Codes, § 7740. The same classification was made in the Compiled Laws of the Territory of Dakota. Comp. Laws, § 7025. This Court has, how — 170 — ever, repeatedly ruled that the mere fact that a proceeding in court is neither a civil action nor a criminal action is not necessarily decisive of the question of whether it-shall be classified as.a special proceeding, and hence be governed by the law and the procedure of special proceedings proper. State v. Davis, 2 N. D. 461, 51 N. W. Rep. 942; Myrick v. McCabe, 5 N. D. 422, 67 N. W. Rep. 143; In re Eaton, 7 N. D. 269, 74 N. W. Rep. 870. In the case last cited this Court said: “The Davis case is a precedent which commits this Court to the theory that a remedial proceeding in court, which is neither a civil nor a criminal action, need not necessarily be classed as a special proceeding for all purposes. We are still of the.opinion that this theory, if maintained, will tend to promote the orderly administration of the law, and thereby promote the ends of justice.” Upon the authority of these cases, it becomes the duty of this Court, therefore, to determine whether the habeas corpus act, consisting of 40 sections of the Code of Criminal Procedure, and embracing a full and comprehensive regulation of the writ in all of its known functions, is to be grouped with special proceedings proper. If it is, it follows, under the statute, that, except as otherwise provided in the act, the rules of procedure and practice which govern in civil actions must be applied to habeas corpus proceedings. Rev. Codes, § 6128. While it is true that habeas corpus has been denominated a “proceeding of a civil nature,” and doubtless this is the better scientific view, yet this does not, in our opinion, necessarily imply that its procedure shall be governed by the procedure regulating-special proceedings or civil actions in a state- where the statute governing the writ makes necessary a different procedure. In this jurisdiction chapter 39 of the Revised Codes embraces provisions regulating certain remedial writs, viz: the writs of certiorari, mandamus, and prohibition, and nothing else is contained in said chapter. In our judgment, these provisions of the Code, when considered in connection with the classification of the writ of habeas corpus with criminal proceedings, is enough to show that the lawmaker deliberately removed the procedure of the writ from that controlling special proceedings. If this construction of the statutes is the true one, it follows that a final order in a habeas corpus proceeding either remanding or discharging the petitioner is not a final order in a special proceeding, and hence is not appealable as such under section 5626, Rev. Codes. That statute does not discriminate by giving an appeal to one party to a special proceeding, and withholding it from the other, and hence, if this proceeding is governed by this statute, an appeal would lie in behalf of the state from an order discharging the petitioner; and it was distinctly held in State v. Buckham, 29 Minn. 462, 13 N.. W. Rep. 902, that an appeal would lie on the part of the state under the statute allowing an appeal from a final order in a special proceeding. In its opinion in that case the Court uses this language: “If, as is alleged in the case at bar, a person imprisoned for crime is wrongfully discharged in habeas corpus proceedings, the state is the aggrieved — 171 — party whose substantial right is affected.” But section 8672 of the habeas corpus statute is as follows: “No person who has been discharged by the order of the court or judge upon habeas corpus can be again imprisoned or kept in custody for the same cause except in the following cases. The exceptions found in the several subdivisions of this section have no' application to the case at bar, and hence it is unnecessary to quote them here. Under this section a petitioner who has been once discharged by habeas corpus cannot lawfully be kept in custody for the same cause, unless his case falls within one of the exceptions stated in said section. This provision is squarely opposed to the theory that the petitioner can, after his discharge, be kept in custody on the same charge under any circumstances whatever, other than those specified in this section. This beneficent provision is of the very essence of the relief by habeas corpus, and the decided weight of judicial opinion is, in •the absence of a statute, that a discharge under the writ, whether properly made or not, cannot be reviewed in any manner. As has been seen, this was the holding in the cases from Michigan, Missouri, and Iowa already cited. See, to the same effect, State v. Grottkan, 73 Wis. 589, 41 N. W. Rep. 80, 1063. As our appeal law is taken literally from the statutes of Wisconsin, it is quite pertinent to the question under discussion to note the fact that in that state habeas corpus proceedings, when reviewable at all, are brought up either by certiorari or writ of error, thereby ignoring* the appeal law. State v. Smith, 65 Wis. 93, 26 N. W. Rep. 258, and Wright v. Wright, 74 Wis. 439, 43 N. W. Rep. 145. At common law the rule was well settled that, while a remanding order was not res adjudicata, an order for a discharge was final. Church, Hab. Corp. p. 520, and cases cited. But the habaes corpus statute in this state further provides as follows :• “Any person who knowing that another has been discharged by. order of a competent judge or tribunal on a habeas corpus, shall, contrary to the provisions of this chapter, arrest 01 detain him again for the same cause which was shown on the return of such writ, shall forfeit five hundred dollars for the first offense and one thousand dollars for every subsequent offense.” Rev. Codes, § 8685. In an action brought to recover this penalty, for example, against an officer who knowingly, and after an order of discharge, continued to hold the petitioner in custody upon the same charge, it would be no defense, in our judgment, to plead that he held the prisoner for some reason other than those enumerated in chapter 20 of the Criminal Code. .Until the officer could point to a repeal of the provision of chapter 20, his defenses would be confined to the exceptional cases stated in section 8672 of that chapter. It is not contended that any of the provisions of chapter 20 have ever been expressly repealed. If repealed, such repeal must have resulted from the enactment of some later statute so repugnant to the habeas corpus act that the two cannot stand to — 172 — gether and both be enforced. It is elementary that repeals by implication are not favored. We now call attention to the fact that the law governing appeals from the District Court in civil actions and special proceedings, if applied to the writ of habeas corpus, would in its practical operation, necessarily defeat the chief purpose of the writ. Section 5619, Rev. Codes, provides that when “ the state * * ^ shall take an appeal service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given; but the Supreme Court may on motion require sureties to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the appeal.” Under this section,, if held to be applicable to habeas corpus, a party who has been adjudged to be illegally imprisoned by a court of competent jurisdiction, could despite such adjudication, be continued in custody upon the same charge, and that,.too, without any indemnity whatsoever. If such were' possible, it would require only a notice of appeal, emanating from the state’s attorney, to secure the continued incarceration of the petitioner for an indefinite period. Such a result would be so monstrous a perversion of the “liberty writ,” that this Court cannot hold that it was ever intended by the legislature to make the law governing appeals applicable to a habeas corpus case; and, before we should hold that an order of discharge could be reviewed in any manner, some statute must be pointed out authorizing such a review in terms. There is at present no such statute in this state. We fully recognize the fact that an order remanding the petitioner in a habeas corpus case cannot, under our construction of the statute, be reviewed on appeal. But we hold that the practical effect of our construction of the appeal law is not to deny the citizen the full benefits of habeas corpus. There are other tribunals whose duty and right it is to take jurisdiction and reinvestigate the question after the District Court has decided the matter and remanded the petitioner. Where an application is made to this Court in such case, the statute allows this Court, .or a judge thereof, to order the writ to issue, and make the same returnable before any District Court or judge thereof within the state; or this Court, at its election, can take jurisdiction, and re-investigate the original cause of imprisonment. See chapter 85, Sess. Laws 1897. At common law, as has been seen, an order in habeas corpus proceedings remanding the petitioner to custody is not res adjudicata. The first adjudication at common law was not a bar to another inquiry upon the same state of facts. It is well settled that, in the absence qf restrictive statutes, a prisoner is entitled to exhaust the entire judicial authority of the state courts and of the federal courts having authority to act, in his efforts .to free himself from unlawful imprisonment. See Church, Hab. Corp. 5x8, 519. See, also, In re Snell, 31 Minn, 110, 16 N. W. Rep. 692, which is a well-considered case. Under these author — 173 — ities, and under the constitution of this- state, a person incarcerated within this state has the unassailable right, except when restricted by some statute, to apply to all courts, for the “liberty writ,” which, under the constitution of the state, have jurisdiction in habeas corpus cases. It is, however, well settled that the legislature ■ may, regulate the practice, and may place reasonable restrictions upon the exercise of this constitutional right. In re Doll, 47 Minn. 518, 50 N. W. Rep. 607; In re Hammill (S. D.) 69 N. W. Rep. 577. In the case last cited, which was an original application for the writ made to the Supreme Court, the writ was denied because it did not appear that an application had been previously made to the Circuit Court. This was the true ground of the decision, and what was there said concerning the right of appeal was not necessary to the decision of the case, as the right of appeal was not involved. But the right to enact laws regulating and reasonably restricting the use of the writ is well recognized. In the exercise of the right to regulate the procedure, the legislature has enacted chapter 20 of the Code of Criminal Procedure, and that act embraces no provision giving the right of appeal to either the state or the petitioner; but, in lieu of an appeal, the act, in our. judgment, has made ample provision under which a prior adverse adjudication may be practically overruled and annulled by a decision of this Court made upon the application of any person unlawfully remanded in the court below. ' . Section 8651, Rev. Codes, as amended by chapter 85, Laws 1897, declares that the District Courts may issue and determine the writ in behalf of any person “restrained of his liberty in their respective districts.” It is manifest. that" after the District Court has once taken jurisdiction of a habeas corpus proceeding, and fully determined the same upon the merits, such court has rendered itself legally incapable of reinvestigating the case upon the same state of facts. That court cannot review its own deliberate and final adjudications. But the act of 1897 further provides, “When application is made to the Supreme Court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the District Court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district or has refused to grant such writ, or for some cause to be specially set forth is incapable of acting, and if such proof is not produced the application shall be denied.” The suggestion cannot be indorsed by this Court that the legislature intended by these regulative provisions to curtail the constitutional rights of the citizen to the writ — First, by forbidding him the right to obtain the writ from any of the District Courts of the state except that in whose district he is confined; and, second, by denying him the right to apply to the Supreme Court for the writ in all cases where the District Court has, after hearing the case, remanded him into custody. Any such construction would necessarily operate to render these otherwise valuable provisions of the statute directly — 174 — subversive of the citizen’s right to the writ, and hence to render the same unconstitutional and void. It goes without saying that all persons in durance vile in this state have a constitutional right to invoke the original jurisdiction of this Court to issue and hear the writ of habeas corpus; nor can the legislature by any enactment wholly deprive this Court of such original .jurisdiction in any case'. Section 87 of the state constitution especially confers the power upon this Court to issue the writ of habeas corpus. In doing so this Court exercises original, and not appellate, jurisdiction. But we think the restrictions of the statute, when liberally construed, are not repugnant to the constitution of the state. It is true that a provision that deprives all District Courts within the state of the right to issue the writ, except that court in whose district the petitioner is confined, is highly restrictive in its nature; but we think that the same is perhaps a reasonable restriction upon the exercise of a constitutional right, and that seems to be the prevailing judicial view of the question. See cases supra. Upon this feature, see especially In re Doll, 47 Minn. 518, 50 N. W. Rep. 607. Under the restrictions of the statute, but one District Court, or the judge thereof, can take the initial jurisdiction, i. e. that in which the petitioner is confined; but it is well settled that regulative restrictions of the constitutional privileges of the writ must receive a liberal interpretation at the hands of the courts, with a view of giving the petitioner the full benefits of his constitutional right to the writ. This rule, we think, would permit a petitioner to apply to the judge of an adjoining district to that in which he is confined, under the circumstances stated in the statute. See section 5179, Rev. Codes. Such a construction would manifestly be favorable to the liberty of the citizen, and would also enlarge the privileges of the writ of habeas corpus which consideration is always kept in view. In the case at bar, and in all cases where the petitioner, on application to the District Court, has been remanded to prison, we are of the opinion that the constitutional right of the prisoner to the writ is not exhausted by the first remanding order, and that thereafter the petitioner may present his application to this Court, and state therein the fact that he has been remanded to prison by the District Court. This statement would show that no District Court, or judge thereof, without the intervention of this Court, would be capable of further acting in petitioner’s behalf; and this, we think, under a liberal construction of the statute last quoted, would be .sufficient. The District Court, having taken jurisdiction and fully determined the case, becomes ipso facto incapable of again acting upon the same state of facts; but this circumstance cannot conclude the petitioner. He still has in reserve his privilege at some time of invoking the original jurisdiction of this Court to determine the same matter. . We hold that no appeal will lie from a final order made in a habeas corpus case, under existing statutes. Whether the legisla — 175 — ture should provide for such appeal as a cumulative remedy is a question of legislative discretion, but we are clear that no legislation can wholly deprive this Court of its right to issue the “liberty writ” in the exercise of its original jurisdiction. The appeal is dismissed. Young, J., concurring.