Hyland v. Rochelle

Spencer, J. The appellee made application by a duly verified petition to the Marion Circuit Court for a writ of habeas corpus, alleging he was unlawfully restrained of his liberty by the appellants. Motion to quash the writ.was made by appellants, Hyland et al., overruled as to all except — 673 — Collins, sustained as to him. Refusing to plead further, judgment against appellants, Hyland, Holtz and Cairl, that appellee be discharged from their custody, etc. The error relied on for reversal is the overruling of appellants’ separate motions to quash the writ. Appellee avers that appellants Martin J. Hyland, Superintendent of Police, William A. Holtz, Captain of Detectives of the city of Indianapolis, apprehended him, the appellee, upon a warrant issued by Thomas R. Marshall, Governor of the State of Indiana, which warrant was issued by such governor upon the presentation to him of a requisition issued by Judson Harmon, Governor of the state of Ohio, which was a requisition for the issuance of a writ and warrant for the apprehension of the appellee, and for his delivery as a fugitive from justice, to one of the appellants, Emmet C. Cairl, as the agent of the state of Ohio, and that the said Cairl was duly appointed and commissioned to receive and convey the appellee to the county of Lucas, in the state of Ohio, as such fugitive; that he was taken before appellant, James A. Collins, judge of the City Court of Indianapolis; that the judge of the City Court of the City of Indianapolis illegally, wrongfully, and oppressively pretended to examine into the question of the identity of the appellee without authority and jurisdiction so to do, did find he was the person named in the writ and warrant and remanded and delivered him over to the appellant, Emmet C. Cairl, agent of the state of Ohio. Was the hearing before James A. Collins, judge of the City Court of Indianapolis authorized by the statute of the State of Indiana? If so, then the apprehension and detention of appellee was regular and appellants’ separate motions to quash the writ should have been sustained. Section 1893 Burns 1908, Acts 1905 p. 584, §26, approved March 9, 1905, relating to fugitives from justice, reads: “Upon the demand of the executive authority of any state or territory — 674 — of the United States upon the governor of this state, to surrender any fugitive from justice from such state or territory, pursuant to the constitution and laws of the United States, he shall issue his warrant, reciting the fact of such demand and the charge upon which it is based, with the time and place of the alleged commission of the offense, directed generally to any sheriff or constable of any county of this state, commanding him to apprehend such fugitive and bring him before the circuit, superior or cñminal court or judge of this state nearest or most convenient of access to the place at which the arrest may be made; and such warrant may be executed by any sheriff or constable in this state, in his own county or in any other county in this state. ’ ’ This section of the statute contains the words, “or judge of this state.” Do these words include judges of city courts and are judges of city courts judges of this State within the meaning of the above section ?' The lower court decided this case upon the theory that the judge of the City Court of the City of Indianapolis within this statute was not a judge of this State. The office of judge of the city court was created by an act approved March 6, 1905, Acts 1905 p. 219, §215, §8840 Burns 1908. At the same, session of the General Assembly of this State and three days prior thereto the above section of the statute was enacted. Section 215, Acts 1905 p. 219, §8840 Burns 1908 reads: “The judicial power of every city of the first, second, third and fourth classes shall be vested in a city court. The officers thereof shall be a judge, a clerk and a bailiff, * * * . Such court shall be a court of record, and all its judgments, decrees, orders and proceedings, shall have the same force and effect as those of the circuit court, except that no judgment shall be a lien on real estate otherwise than as provided by taking a transcript of such judgment and filing the same in the office of the clerk of the circuit court; and such judgment shall then be enforced in the same manner as in ease of liens by transcript from justices of the peace in similar cases.” Section 216, Acts — 675 — 1905 p. 219, §8841 Burns 1908 reads: “The city judge shall be elected by the legal voters of such city, at the same time and in the same manner as the other city officers are elected, for the term of four years and until his successor is elected and qualified. * * * Before entering upon the discharge of his duties he shall execute a bond, payable to such city in the penal sum of five thousand dollars, with good and sufficient surety, to be approved by the mayor and filed in the office of the city controller, conditioned for the faithful discharge of the duties of his office. He shall hold daily sessions of the city court, Sundays excepted, at a place to be provided and designated by the common council. He shall have and exercise within the county in which said city is located, the powers and jurisdictions now or hereafter conferred upon justices of the peace in all cases of crimes and misdemeanors, except as otherwise herein provided * * * He shall have original concurrent jurisdiction with the circuit court or criminal court in all cases of petit larceny and all other violations of the laws of the state where the penalty provided therefor cannot exceed a fine of five hundred dollars and imprisonment in the jail or workhouse not exceeding six months, or either or both.” “Such judge shall have full power and authority to make and adopt rules and regulations for conducting the business of such court not repugnant to the laws of this state, and shall have all powers incident to a court of record in relation to the attendance of witnesses, the punishment of contempts, the enforcement of its orders and the issuing of commissions for taking depositions in cases pending in such court. He shall have full authority to administer oaths and to give all necessary certificates for the authentication of the records and proceedings of such court. In the matter of changes of venue and other matters relating to the trial of any person charged with the violation of any law of this state, or of any ordinance of such city, such court shall be governed, so far as may be, by the law, rules, practice and pleadings — 676 — in criminal and circuit courts, except where herein otherwise provided”. §217, Acts 1905 p. 219, §8842 Burns 1908. Section 1, Art. 7, of the Constitution of Indiana, provides, ‘‘The judicial power of the state shall be vested in a Supreme Court, in Circuit Courts, and in such other courts as the General Assembly may establish”. Section 2, Art. 4, Constitution of United States, reads: “A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” 1. In construing a statute the intent of the legislature is the object sought, and in determining such intent, the entire statute, as well as other acts in pari materia, whether repealed or not, and whether passed before or after the act in question, will be considered. Johnson v. City of Indianapolis (1910), 174 Ind. 691, 699, 93 N. E. 17. Guided by this rule let us proceed to examine the several acts enacted by the Indiana legislature concerning the apprehension of fugitives from justice from other states. The act approved January 22, 1824, R. S. 1824, chap. 46, p. 219, was the first law enacted on this question. It reads in part, “That if any person shall commit any crime in any of the United States or the territories thereof, and shall flee into this state, it shall be lawful for any judge of the supreme or circuit court, or justice of the peace, within this state, on the oath or affirmation of any person charging such fugitive with a crime, to issue his warrant, and cause such fugitive to be arrested and brought before him.” This act further provides for the removal of the fugitive if found guilty. This act remained in force and unchanged until 1867, when the legislature, by act approved March 8, 1867, amended to read in part, “Section 1. * * * and bring him before the circuit or common pleas judge of this State who may be nearest or convenient of access to the place at — 677 — which, the arrest may he made. ’ ’ Acts 1867 p. 126. Section 26, Acts 1881 (s. s.) p. 114, §1599 R. S. 1881, followed the language of §1, Acts 1867, supra, except the clause set out above was changed to read, “the circuit or criminal judge of this State who may be nearest or most convenient of access,” etc. This section remained in force until 1905, when the legislature changed it to read as set out, supra. Acts 1905 p. 584, §26, §1893 Burns 1908, viz., “Apprehend such fugitive and bring him before the circuit, superior or criminal court or judge of this state nearest or most convenient of access to the place at which the arrest may be made.” 2. 3. 4. What was the legislative intent of the phrase, “or judge of this state”, etc? “One of the cardinal rules in the construction of statutes is, that where there is nothing in the act itself to indicate that a word, or phrase, is used in a particular, or technical, sense, it is to be taken or accepted in its ordinary and popular meaning.” Massey v. Dunlap (1896), 146 Ind. 350, 357, 44 N. E. 641. See, also, Starr v. Board, etc. (1907), 40 Ind. App. 7, 9, 76 N. E. 1025, 79 N. E. 390; Haggerty v. Wagner (1897), 148 Ind. 625, 48 N. E. 366, 39 L. R. A. 384; Seiler v. State, ex rel. (1903), 160 Ind. 605, 617, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448. “When the meaning of a statute is plain, it is the duty of the court to define it according to its obvious terms.” State v. Dudley (1910), 173 Ind. 633, 637, 91 N. E. 228. “If the statute is doubtful or uncertain, the circumstances under which it is enacted, other statutes, if there are any upon the same subject, whether passed before or after the statute under consideration, whether in force or not, the history of the country, the condition of affairs, the mischief sought to be remedied, and the object sought to be attained, may all be looked to in ascertaining the legislative intent.” Thorn v. Silver (1910), 174 Ind. 504, 516, 89 N. E. 943, 92 N. E. 161, and cases cited. — 678 — 5. 6. “The rule is elementary that the grant of a principal power carries with it by implication all other powers necessary to carry out the principal power conferred, and thereby to make effectual and complete whatever is authorized to be done by the principal or general authority granted.” State, ex rel. v. Barr (1910), 173 Ind. 446, 450, 88 N. E. 604. See, also, Boyce v. Tuhey (1904), 163 Ind. 202, 211, 70 N. E. 531; Studabaker v. Studabaker (1899), 152 Ind. 89, 51 N. E. 933; Leeds v. Defrees (1901), 157 Ind. 392, 397, 61 N. E. 930. “A matter or thing within the intention of the makers of the law is the same in effect as if it were within its express letter. ’ ’ Conn v. Board, etc. (1898), 151 Ind. 517, 525, 51 N. E. 1062. 7. 8. It is only when it will manifestly defeat the legislative intent that the words of the statute are not taken in their plain, ordinary, and usual sense. Massey v. Dunlap, supra; State, ex rel., v. Barr, supra. At the same session of the legislature during which this change was made in the above act, an act was passed concerning municipal corporations, Acts 1905 p. 219, approved March 6, 1905, therein creating the office of “City Judge,” and providing for his election, duties, qualifications, jurisdiction, etc., for cities of the first, second, and third classes. As seen from the sections of this act, supra, he was given certain jurisdiction concurrent with that of the circuit or criminal courts. Was it the intention of the legis* lature by amending the act concerning fugitives from justice to include city judges and city courts, just created, by the phrase, “or judge of this state”? Appellee insists that the clause, “bring bim. before the circuit, superior or criminal court or judge of this state nearest or most convenient of access to the place at which the arrest may be made,” should be taken as if it read, “or judge thereof nearest,” etc. We are not able to so read it. Had the legislature desired to so limit the language, it could easily have said, “or judge thereof nearest,” etc. It seems to us the language used does — 679 — not require construction, it feeing, “or judge of this state nearest,” etc. The intention of the legislature as expressed by this enactment was to provide a method of identification of an alleged fugitive from justice by the judge of a court. In the act of 1905, for the first time provision was made for the identification of an alleged fugitive to he made by a court. All the various acts of the legislature of this State prior thereto upon this subject, required the identification to be made before a single judge. The act of the judge in such matter is the fulfillment of a statutory requirement designed by the legislature to carry out the executive authority of the State by which only can extradition take place and the language used by the General Assembly should be taken as written. The appellee earnestly contends that the case of State, ex rel., v. Gerdink (1909), 173 Ind. 245, 90 N. E. 70, is decisive of this case, wherein this court held that §8845 Burns 1908, Acts 1905 p. 219, §218 was not repugnant to article 5, §18, of our State Constitution. As we read State, ex rel., v. Gerdink, supra, it holds that the legislature has the authority to designate the agency that should fill vacancies in the office of city judge, etc. It seems very clear to us that within the meaning of this statute, the judge of the City Court of the City of Indianapolis, is a judge of the State and that the following authorities place the matter beyond controversy. Waldo v. Wallace (1859), 12 Ind. 569; Baltimore, etc., R. Co. v. Town of Whiting (1903), 161 Ind. 228, 68 N. E. 266; State, ex rel., v. Berghoff (1902), 158 Ind. 349, 63 N. E. 717; Gulick v. New (1860), 14 Ind. 93, 104, 77 Am. Dec. 49. This view of the case makes it unnecessary to take up the question presented by appellants as to the constitutionality of §§1893, 1894 Burns 1908, Acts 1905 p. 584, §§26, 27. The judgment is reversed with instructions to sustain the motion to quash the writ of habeas corpus, and to further proceed therewith not inconsistent herewith