State v. White

CuauK, J.,

dissenting. The defendant, on June 27, 1890, pleaded guilty on a charge of bastardy, and upon default in the payment of the fine, costs and giving bond for allowance to the woman, aggregating $40, was sentenced to work on the public roads of the county, as provided by The Code, secs. 38 and 3448, for six months, so that the said sum should he *681worked out- at the rate allowed prisoners at work by the County Commissioners. On August. 28th, the defendant filed with the -Tustiec. of the Peace his petition to be discharged as an .insolvent debtor, under The Code, sec. 2967, which, after the 20-days’ notice given, was heard by the Justice, and petition denied. On appeal to the Superior Court, the judgment of the Justice was affirmed, and an appeal was taken to this Court.

The Code, sec. 2967, was in the Revised Code of 1854, and was adopted at a time when, if one in jail in default of payment of fine and costs was not provided with some such mode of discharge, he would remain therein indefinitely. But it was felt that some other mode of discharge should be provided, and that it was a serious and unjust charge upon the public, that these prisoners should be discharged without burden to themselves, leaving the public to bear the real punishment by paying the cost of their trial and conviction, and also that it was bad policy that prisoners sentenced to the county jail for crime should lie therein in idleness, supported at the expense of the taxpayers. The Legislature, therefore, deeming it had power to so legislate, formulated public opinion in an act originally passed in 1866-’67, chap. 80, and which, after being several times amended, is now sec. 3448. This later act must be read in connection with sec. 2967, and is, in effect, an amendment thereto. It provides that the County Commissioners may work on the public roads all persons imprisoned in jail (1) upon conviction of any crime or misdemeanor, or (2) for failure to give bond to keep the peace, or (3) for failure to pay all the costs or give security therefor, and that the amount realized from working shall be credited on fine and costs, with a proviso that no such prisoner shall be detained longer than a time fixed by the Oourt (in the present case, six months), and a further proviso that no *682prisoner shall be so worked out unless it is authorized in the ■judgment of the Court. And the same Legislature which enacted what is now Code, sec. 3448, above referred to, in pursuance of the same policy of protecting the taxpayers from paying the penalties and costs which criminals were able to, and should, work out. themselves, passed chap. 10, Laws 1866-’67, which is now The Code, sec. 38, which provides: “When the putative father shall be charged with costs or the payment of money for the support of a bastard child, and such putative father shall by law be subject to' be committed to prison in default of paying the same, it shall be competent for the court to sentence such putative father to the house of correction for such time, not exceeding twelve months, as it may deem proper,” with a proviso that the putative father may, if he so elect, bind h.imself out as an apprentice to some one to get the money. This was held constitutional as early as State v. Palin, 63 N. C., 471, which hold that the obligation to pay the allowance was not a -debt within the constitutional provision abolishing imprisonment for debt, and the Court said (Settjve, J.), “We must not suppose that it was the intention of the framers of our Constitution to' break down the safeguards of society by discharging men from the performance of moral and natural duties.” This constitutional construction was referred to', and approved as authority by BvNum, J., in State v. Wooding, 71 N. C., 173, and in State v. Beasley, 75 N. C., 212; and it has since been often cited as authoritative. The same principle was stated, without citation, in State v. Wynne, 116 N. C., 986, and in State v. Burton, 113 N. C., 655, to sustain the constitutionality of see. 38 of The Code.

Eecently, the constitutionality of secs. 38 and 3448, i. e., the power of the Legislature to enact them, was before this Court, in State v. Nelson, 119 N. C., 797, (September Term, *6831896). The constitutionality of those sections was upheld, and it was said that already the Court had held in State v. Yandle, 119 N. C., 874, and in Myers v. Stafford, 114 N. C., 234, that “in order to provide for payment of a judgment for fine and costs pronounced against one convicted of crime, the defendant, as incident to such judgment,” could be required to work on the public roads, and adds: “But it is insisted that this is not a judgment for fine and costs alone, but also for an allowance, and that a judgment for the imprisonment of the defendant for twelve months on default of paying the fine.costs and allowance under sec. 38 of The Code,is in violation of sec. 27, Art. IV of the Constitution, which fixes the limit to the punishment that a Justice of the Peace may impose. The question to be decided therefore is, whether it is competent for the Legislature to authorize a Justice of the Peace, instead of a County Commissioner, to order one convicted of bastardy, and who is unable to pay the fine, costs and allowance, to work upon the public roads, not as a- punishment for the offense or as an incarceration for a debt contracted by him, but in the enforcement of a duty or obligation he owes to society to protect the State or the county, one of its governmental sub-divisions, against the consequences of his own conduct.” After a full discussion, it is said to be “settled that it is competent for the Legislature, in the exercise of its general police power, to protect the public by permitting either County Commissioners or Justices of the Peace to fix such confinement at hard labor as will enable the defendant to pay a fine due to the State, or costs to its officers, or an allowance made to support a child that, without it, might become a charge to the public”- — the- identical question which is presented in the present case. But it was held that in that case a sentence of twelve months to pay a fine of $50 and costs, was unreasonably long, and while affirming the *684power to impose the judgment to work on the roads, the case was remanded that t-he sentence be shortened to the time appropriate to earn the amount of fine, costs and allowance with, as the opinion says, “some allowance for contingencies, such as loss of time.” The working on. the public roads is not a punishment for the crime, but to require the defendant to discharge the duty required of him in labor, if he will not or ■can not discharge it in money. It is to prevent the public being punished by being made to pay for his default.

The judgment imposed on the defendant in this case of working out fine, costs and allowance “not to' exceed six months,” in default of payment of the same, is in exact accordance with the provisions of the statute which has been the law since 1866-’61, decided constitutional as far back as State v. Palin, supra, in 1869, which has been repeatedly cited with approval since, and the whole subject thoroughly discussed, and the constitutionality of the act reaffirmed by a unanimous Court as late as State v. Nelson, supra, at September Term, 1896.

The provision in sec. 2961, which authorized the putative father imprisoned for non-payment of the maintenance, and those in jail for non-payment of fine and costs, to be discharged as insolvent debtors must, by all the rules of construction, be read in connection with secs. 38 and 3448, so that all three may stand, and when so read, those imprisoned for failing to pay allowance or fine and costs can swear out only when the Court has not exercised the authority, given in those statutes of sentencing them for a fixed period which is required to be designated in the judgment, to work on the roads.

The decisions which are cited in opposition to> the above will, on careful examination, be round not to conflict with, but to sustain, this view, though, if the head-notes only are read, it might seem otherwise.

*685In State v. Davis, 82 N. C., 610, the defendant was simply “committed for fine and costs.” Tie was not sentenced to the roads under sec. 3448, which expressly requires that to be in the judgment, nor to a definite period as required by see. 38. TT e was clearly entitled to be discharged as an insolvent, therefore, under sec. 2967. The Court, however, having declared such insolvent was entitled to his $500 personal property exemption, the next Legislature (Laws 1881, chap. 76), provided the exemption allowed in such cases should be only $50. This latter act was held constitutional in State v. Williams, 97 N. C., 414, (since approved in Fertilizer Co. v. Grubbs, 114 N. C., 472), in which the Court expressly says the defendant was entitled to be discharged because committed “till fine and costs were paid,” with authority to the County Commissioners to work him, but that it would have been valid, if the Judge had, in the sentence, followed sec. 3448, and “fixed a time beyond which” he could not be imprisoned —an express recognition of the validity of that section, and that one so sentenced could not swear out as an insolvent. It is said in that and other cases, that the mere fact that the County Commissioners had established a work-house, would not prevent- a prisoner swearing out as an insolvent “when the Court had not fixed the period of his imprisonment,” as required by secs. 38 and 3448. Clearly so, for an unlimited imprisonment at work would be as objectionable as unlimited imprisonment in jail.

State v. Williams cites State v. McNeely, 92 N. C., 829, as authority, in which the judgment was suspended “on payment of costs,” and, of course, in the absence of the provision “fixing the term of imprisonment” as required under secs. 38 and 3448, the defendant came under sec. 2967, and was properly allowed to swear out. Exactly the same judgment, without fixing the term of imprisonment, as required to come *686under sees. 38 and 8448, was the case of State v. Bryan, 83 N. C., 611, and State v. Giles, 103 N. C., 396, tbe latter case calling especial attention to the fact that the sentence was not “for the term of 12 months in the house of correction as might have been done under sec. 38 of The Code.”

State v. Burton, 113 N. C., 655, was exactly like the above in that the defendant was simply committed to jail for nonpayment of fine, allowance and costs, “no term of imprisonment being fixed,” as required by secs. 38 and 3448. The defendant, consequently, swore out, as he was entitled to do, as an insolvent debtor, under sec. 29 GY, the only mode left him when the judgment fixed no period of imprisonment. He was afterwards re-arrested, and the Judge sentenced him, under the provisions of sec. 38, and it was held that this could not be done, because he had already been committed and discharged legally as an insolvent. The same Judge (Aveey), who wrote the opinion in State v. Burton, at the next term, but one in State v. Parsons, 115 N. C., at p. 736, cites State v. Giles, 103 N. C., 396, and State v. Burton, just quoted, as an authority that the Court “might have imprisoned the defendant in the county jail for a definite and reasonable time, and under the express authority of sec. 38 of The Code the defendant might have been sentenced to the work-house for a term not exceeding one year.” The same Judge wrote the opinion in State v. Nelson and State v. Yandle, in 119 N. C., above cited. State v. Oswalt, 118 N. C., is exactly like the above, it being expressly said on p. 1216, that, “While the prisoner may be committed to a house of correction or to prison, yet when committed to prison or prayed in custody, without further action by the CourtN he can be discharged on taking the insolvent debtor’s oath.

A review of the authorities shows, therefore, no conflict that the defendant sentenced, as in this case, under see. 38, is *687validly sentenced, and no case yet bas beld that he can nullify the senetnce authorized by that section by swearing out under sec. 2967. What becomes of the validity of the sentence for six or twelve months (State v. Ballard, 122 N. C., 1025), if it can only last for twenty days ?

In no case hks it yet been held that on© imprisoned for a fixed time at hard labor can be discharged from such sentence as an “insolvent debtor.” To do so would be a contradiction in terms. All the cases have held constitutional the acts authorizing confinement at wort upon the public roads for a fixed term, stated in the judgment, to pay fine, costs and allowance, because it is “not as a punishment for the offense, nor as an incarceration for a debt contracted by him, but in the enforcement of a duty or obligation to protect” the taxpayers against paying the penalty due to defendant’s bad conduct, and which he should pay with his labor, if he can not or will not pay with his purse. State v. Nelson, and other cases, supra. It is not a punishment, for as he can be discharged upon payment of the sum in default of which he is sentenced to work, his release is at any moment at his command, (State v. Wynne, 116 N. C., at p. 986); whereas, if it were a “punishment for.crime” no amount of money, nor other act of the defendant, would secure his discharge. Nor is it “imprisonment for debt” within the constitutional provision forbidding such, and this has been long and uniformly held in eases above cited. Erom a commitment “for nonpayment of fine and costs” one can be discharged as am “insolvent debtor,” but a sentence, as authorized by the statute, to work a fixed period to pay fine and costs, is a valid sentence (State v. Ballard, supra), from which he can not swear out, for he can not aver his inability to perform the order of the Court.

The Legislature is the law-making power. Through it, *688the people, ill'all self-governing communities, exercise, their power ot shape their own institutions as they deem best. The power claimed by our courts to' set. aside legislative acts because the court adjudges them unconstitutional, obtains in this country alone, for it exists 'not in England and her Colonies, or anywhere else, though constitutional government has been maintained by the English-speaking race for centuries, without any supervision of the legislative power by the courts. If such supervisory power by the courts is not itself unconstitutional fas eminent jurists have always contended) it is admittedly extra constitutional, for not a line in any Constitution, State or Federal, confers or intimates the existence of such power in the courts. If unrestricted, it vests all power in the judiciary who, whenever it shall seem good to them, can annul any legislation by the process of simply declaring it unconstitutional. This would reduce the government in its last analysis to a few men — in North Carolina to three men, who' constitute a majority of the Supreme Court, and in the Federal Government to the five men who constitute the majority of its Supreme Court. So vast a power, which asserts itself to be above revision or control, is antagonistic to the fundamental principles of our .Government, which rests upon the will of the people. The courts themselves have recognized the delicate, not to say dangerous, power claimed by them, and have in recognition of the necessity of its limitation, time and again, declared the courts could pronounce an act of the law-making power unconstitutional only when it conflicted with some express provision of the Constitution, and was unconstitutional beyond a reasonable doubt. State v. Moore, 104 N. C., 714; Sutton v. Phillips, 116 N. C., 502.

Here, the sentence is in the express terms of sec. 38, and is valid if that section is constitutional. That section is recognized as valid in State v. Ballard, (Douglas, J.), 122 N. C., *6891025, February Term, 1898, wbicb cites State v. Nelson, supra, as authority. The power of the Legislature to pass sec. 38 had been, adjudged in State v. Palin, 63 N. C., down to State v. Nelson, 119 N. C. The statute has been acted on and in force for thrity-three years. Can it now be said that beyond a doubt the act is unconstitutional, and that this Court and its predecessors have been in error % If so-, what length of time, what number of adjudications will put any statute beyond liability to be set aside whenever the majority of the Supreme Court shall so will to declare ?

Recently, the majority of this Court have adhered to the decision in Hoke v. Henderson, though that decision is in conflict with judicial authority in all other jurisdictions. But Hoke v. Henderson was in derogation of the right of legislation. Ft had held an act of the Fjegislature unconstitutional To overrule it would not have infringed upon the principle that, an act of the Legislature should not be held unconstitutional unless it is so beyond a reasonable doubt. But here we have an act which was passed by the Legislature to voice a public demand that evil-doers work out their costs and fines and charges (if the Judge shall so order) which act is presumably constitutional, and that presumption is supported by the adjudications of the Court for more than thirty years. To now declare it unconstitutional directly, or in effect, is to violate the canon that no law, passed by the General Assembly, shall be deemed unconstitutional, unless it is so beyond reasonable doubt.