HABEAS CORPUS.

[Erie Circuit Court,

January Term, 1899.]

King, Haynes and Parker, JJ.

#### In re J. C. Smith, on behalf, etc., for a writ of Habeas Corpus, v. Perry, Sheriff. In re Luezler, on behalf, etc., for a Writ of Habeas Corpus v. Perry, Sheriff.

1. Res Adjodicata not a Good Plea.

An answer to a. writ of *habeas corpits*alleging that an application for a writ had previously been made to another court, setting out the same state of facts as ground for the writ, and that the writ had been refused by that court, does not amount to a good plea in bar, nor does it afford the court just grounds for refusing to act,

2. Imprisonment for Costs in a Criminal Prosecution,

Judgment for costs following conviction in a criminal prosecution, only becomes a part of the sentence when there has been a fine imposed, and when the judgment is entered that defendant be imprisoned for a certain term and pay the costs of the prosecution for which execution is issued, but no fine is imposed, an execution for the body of the defendant is unauthorized, sud imprisonment under such judgment, or under an execution issued thereon, is illegal, and *habeas corpus*will lie.

Parker, J.

These cases which have been heard by and submitted to the judges of this court at chambers, are substantially alike in their facts, and therefore they will be disposed of together. I may, as I go along, point out certain distinctions between the two cases, but such as exist are generally immaterial.

Applications for writs of *habeas corpus*in these cases were submitted o Judges Haynes and Parker aft chambers, in the city of Toledo, Ohio, on the 17th inst., and the questions presented by the petitions and also those likely to be presented upon an answer to the writ, if one should issue, were very fully argued by counsel representing all parties. We allowed writs to issue and now the matter has been submitted to and considered by all the judges of this court, who concur in the opinion that will be announced.

From the petitions it appears that Sarah Luezler and May Smith were each convicted of petit larceny in the court of common pleas of Erie county, and that they were each sentenced to a term of imprisonment in the county jail, and the costs of prosecuting were adjudged against them respectively in their respective cases. The questions to be considered turn largely upon the form of the judgment and sentence in those cases. I read from the record in the case of The State of Ohio v. Sarah Luezler, which, after setting out the proceedings up to the time that she entered a plea of guilty in the case, proceeds as follows: ‘‘It is therefore ordered and adjudged by the court that the said defendant, Sarah Luezler, be imprisoned and confined in the jail of Erie county, Ohio, for a period of fifteen days and pay the costs of this prosecution, taxed at $51.81, for which execution is awarded.” The entry in the case of May Smith is the same, execepting that the amount of costs that she is ‘adjudged to pay is much larger, being $1,358.46; and it appears in her case that she was convicted by the verdict of a jury, instead of by a plea of guilty.

*779Now it appears from the petitions and evidence that these persons were taken into the custody of the sheriff of Erie county and imprisoned i-n the jail of that county, tor the terms prescribed by these sentences: that those terms have expired; but that in the meantime a writ has been issued from that court against each of them which commands the sheriff to take the goods and chattels, lands and tenements of the defendants, in satisfaction of these judgments for costs, and in default of property to satisfy the writs, the sheriff to levy the same upon the bodies of the defendants, and that in pursuance of these writs, the sheriff, failing to obtain satisfaction of the writs'out of the property of the defendants, has arrested them and holds them in confinement in the county jail of Erie county, Ohio.

The answers filed upon behalf of the sheriff do not controvert these facts, but he denies that the parties are illegally and unlawfully restrained of their liberty, and this part of the answer amounts practically to a demurrer. He further says that the matters set forth in the petitions are *res jtidicaia*for reasons set forth in his answers. I read from the answer in the Smith case:- — -“That on the tenth day of February, 1899, the said May Smith applied to the Honorable Linn W. Hull, judge of the court of common pleas of Erie county, for a writ of *habeas corpus,*on the ground that she was unlawfully restrained of her liberty and imprisoned by this respondent; that the matters set forth in her said application betore said Linn W. Hull, judge of the court of common pleas of Erie county, Ohio, were the same and had reference to the same judgment and execution set forth in the petition of said J. C. Smith in this proceeding; that said application came on for hearing before the said Linn W. Hull, judge of the court of common pleas of Erie courty, Ohio, and on consideration was by said judge denied.” Copies of said application and the orders of Judge Hull are attached to these answers, and from those copies it appears that the applications before Judge Hull were substantially the same in form and set forth- substantially the same facts as these applications made to us, the only difference being that those applications were made by the persons imprisoned, whereas, these applications are made by certain other persons on behalf of the persons imprisoned.

From the exhibits attached it appears that upon these applications being made to Judge Hull, he heard arguments of counsel and refused to issue the writs, and that the cases proceeded no farther before him.

Now it is said that this is a matter *res jiidicata*and that therefore a second application to another court or other judges for discharge *from*this imprisonment while the facts remain the same and acted upon.

We have given this question careful consideration and have examined a great many authorities bearing upon it, and we find that by a great weight of authorities both in England and throughout the states of this country, it has been determined that the decision of one court 'or *officer*upon a writ of *habeas corpus*refusing to discharge a prisoner, is not a bar to the issuing by another court or judge of another writ, based upon the same facts. Among other cases in which this is held, we cite King v. McLean Asylum etc., 64 Fed. Rep., 331, calling attention to the last clause of decision.

*In re*Kane 3 Blatchford, p. 1.,; People v. Brady, 67 Howard Pr., 362; Blair’s Petition, 4 Wis., 322; *In re*Snell 31 Minn., 110; *Ex parte*Lyon, 19 Tex. Appeal, 120; Howe v. State, 9 Missouri, 690; *Ex parte*Ellis, 11 Call, 222.

*780I read from the case entitled *In re*Snell, above cited:

> “Upon ttie general question involved in this proposition, there is some difference among courts and text writers. But research and reflection have brought us to the conclusion that the sound rule and that supported by a great weight of long standing authority, is that the decision upon *habeas corpus*of one court or officer refusing to discharge a prisoner’s application upon tne same state of facts as at first, to another court or officer, and to a hearing or a discharge thereupon. We cite a few leading authorities: A decision under one writ of *habeas*corpus, refusing to discharge a prisoner, does not bar the issuing of a second writ by another court or officer. People v. Brady, 56 N. Y., 182, 192. This would appear to overrule in intimations of earlier New York authorities. A decision under the writ of *habeas*corpus, refusing the discharge of a prisoner, is no bar to the issuing of any number of other successive writs by any court or magistrate having jurisdiction. *Ex parte*Kaine 3 Blatch. 1, 5, per Nelson, J: T feel no difficulty in delivering the opinion which I entertain, because the prisoner will not be concluded by it, but may, if he be dissatisfied, apply to the other courts of Westminster Hall.’ King v. Suddis, 1 East, 306, 314. Per Lord’Kenyon: ‘This ease has already been before the Queen’s Bench on the return of a *habeas corpus,*and before my Lord Chief Barron at chambers, on a subsequent application for a similar writ. In both instances the discharge was refused. The defendant, however, has a right to the opinion of every court as to the propriety of his imprisonment ’ *Ex parte*Partington, 13 M. & W., 679; M. & W. 679, 682, per Parke B.

> “In some courts there appears to be a disposition to make the right to a second writ a question of expediency for the court to determine. This occurs to us to be a dangerous notion. The ‘Writ of Liberty’ is a writ of right. When we consider its origin, its history and its purposes, the transcendent necessity of its issuance, dependent upon the right of the petitioner and not upon the discretion of anybody, is incontestable.

> “It may be urged that to allow the issue of successive writs will be intolerable and oppressive to the courts and to the public law officers. To this there are several answers: First. Business of this kind is ordinarily controlled and conducted by an honorable profession. Second. Experience is to the contrary. We may rest with comfortable assurance upon the fact that, after many years trial in this country and centuries of trial in England, the right to successive writs has not been found to work any serious practical inconvenience. See remarks of Allen L., People v. Liscomb, 60 N. Y., 567, at bottom. .Third. If the inconveniences were great, the citizens’ right to liberty is greater.”

What I have read answers the objections made in the course of argument before us, to the rule that repeated applications may be made to different courts or judges.

There are some decisions to the contrary, and some which hold that where a right of appeal or to prosecute error to the refusal of a judge to discharge upon a writ of *habeas corpus*is given by the statute, a change in this general rule is thereby effected, so that the right to prosecute on appeal or on error’is made the exclusive remedy; and that after one refusal another application to another court or judge cannot be entertained. And it is urged that since our statute has provided by Sec. 5751 for a review upon error this should be an exclusive and not a cumulative remedy. But it will be seen that that section provides for the recording of the proceedings by clerks of courts and a review on error *781where the proceedings are upon a writ of *habeas*corpus; the section reads as follows:

> “The proceedings upon a writ of *habeas corpus*shall be recorded by the clerks respectively, and may be reviewed on error as in other cases.’’

Where a case has taken this course it seems that by sec. 6709, Rev. Stat., as amended March 17, 1898, (93 O. L., 56), error may be prosecuted to the order of the court on error, and may likewise be prosecuted if the order is that of a -judge of the court.

But in these cases, as already pointed out, writs of *habeas corpus*were not issued by Judge Hull, and therefore, under the plain reading of the statute there seems to be no provisions for recording what actually occurred before Judge Hull and no provision for reviewing the same upon error. We think therefore that the distinction between the order of the court or judge refusing to issue a writ and the order of a court or judge upon a hearing after issue joined by return upon the writ or answer to the petition, is like that made in mandamus as illustrated in the cases of the State v. Cappaller, 37 O.S., 121, and State v. Ottinger, 43 O. S., 457, in the first case it having been held that error could not be prosecuted to the action of the courts in refusing an alternative writ of mandamus, in the second case it having been held that error could be prosecuted to the order of the court in refusing to allow a peremptory writ of mandamus after a hearing upon issue joined.

But however this may be, it does not appear that the right to review the action of the judge in a case of *habeas corpus*upon refusal to issue the writ, or upon issue joined after the writ has been issued, is a full, complete and adequate remedy in all cases; for, while error may be prosecuted to such order in the last instance, there is no provision of law for the raking of a bill of exceptions upon a hearing before a judge, and therefore a party might be unable to bring to the attention of the reviewing court the real facts upon which he claimed to be entitled to his discharge.

We think, therefore, upon consideration of these authorities, that what has been set forth in the answers as *res jtidicata*does not amount to a good plea in bar, and does not stand in the way of our proceeding to act upon this application; neither does it afford us just ground for refusing to act.

We come therefore to the consideration of the question whether this imprisonment to enforce the collection of these costs under this form of judgment is lawful. Unquestionably clear authority to imprison to enforce the collection of a debt of any description must be found in the law; otherwise such imprisonment will be unlawful Lougee v. State, 11 O., 68 to 70. It is equally clear that if the court in these cases was authorized to enter judgment that these persons should be imprisoned until the fine and costs were paid,.in the absence of such judgment an execution, such as was issued in this case, might issue and the persons might be lawfully imprisoned. *In re*Beall, 26 O. S., 195.

It is contended on behalf of the respondent that authority to issue such writ in these cases is found in sec. 7328, Rev. Stat., which reads as follows:

> - “When a magistrate or court renders judgment for a fine an execution may issue for the same and the costs of prosecution to be levied on the property, or in default upon the body of the defendant, and the officer holding such writ may arrest the defendant at any time and commit him to the jail of the county in which the writ was issued, to remain there *782until the fine and costs are paid or secured to be paid, or he is otherwise discharged according to law."

On the other handfit is contended that the provision that this maybe done in cases where a judgment is rendered for a fine contains a very plain and important limitation upon the right to issue such writ, and our attention is called to secs, 1846, 1866 and 1787, Rev. Stat., which contains similar provisions and limitations. Section 1846 is a part of the statute on the subject of the police powers of certain magistrates and provides that when a fine is the whole or a part of the sentence, the court, or mayor, or president of the board of trustees, may order that the prisoner sentenced shall remain in the county jail, workhouse or prison until the fine and costs are paid or secured to be paid, or the offender be otherwise legally discharged.

Section r866, Rev. Stat., also a part of the municipal code, contains a like provision to the effect that when a fine is imposed, process may issue under which the person of the party adjudged to pay the fine and costs may be taken. Section 1787 Rev. Slat., contains a like provision as to police courts.

Now we cannot think that these provisions which seem plainly to limit the right to the use of such writ, known as a *capias ad satisfaciendum,*are accidental. We have 00 doubt but that it is competent for the legislature to provide that a person may be arrested on execution and imprisoned as a part of the process for collecting costs only; — I mean in cases where fines are not imposed as a part of the penalty: — but it seems clear to us that the legislature has not done so, but that it has given the right only where a fine is imposed as a part of the penalty, except in one instance, where, under sec. 68oi¿, Rev. Stat., a person may be sent to the workhouse in an adjoining county.

We think the effect of these provisions is that where a fine is imposed by the court, the imposition of such fine results in making the costs also a part of the sentence; and the awarding of this writ for the collection of such costs, where a fine is not imposed amounts to an order or direction of the court saying that such writ shall not issue. It is certainly an easy and convenient method by which the court may determine when the writ shall and when it shall not issue; and that is a matter left; we think very properly, within the discretion of the court, to be exercised according to the circumstances of the case it may have to deal with; so also the court may, in its discretion adjudge that a party may be confined until the fine and costs are paid, and in such case no writ other than a mittimus-sttting forth the judgment, ueed issue. It is provided by sec. 6799, Rev. Stat., that a judgment afgainst the defendant for costs shall follow in all cases upon a conviction ; but such judgment, unless made a part of the sentence, m the manner above pointed out, we think has no higher dignity or greater force than an ordinary judgment for money in a civil action.

The distinctions here suggested are in harmony with the views of the Supreme Court of Ohio as expressed in the case of Libby v. Nochola, 21 O. S., 414. It is there held that a pardon operates upon the sentence, whether imprisonment or fine, but does not operate to release the judgment for costs; and in the course of his opinion, White, Judge, speaking for the court, distinguishes, we think, very distinctly, between the sentence and the judgment for costs, the latter being an ordinary incidental result of the conviction.

It is said that the authority to issue an execution authorizing the takkig of property upon judgments of this character cannot be found *783elsewhere in the statutes than in sec. 7328, Rev. Stat., and that the writ therein provides authorizes the taking of the person as well as the property, and that if it shall be-held that such writ may issue only in a case where there is a judgment for a fine, then in all cases where no fine is imposed there is no means provided for the collection of the costs.

If this were true it might result in great inconvenience; and yet, if there has been this oversight on the part of the legislature, we do not think it would authorize us to put a strained construction upon this statute as against the right to personal liberty. As before stated, the right to imprison in a given case should be clear and explicit; otherwise it should be held to not exist.

We think however that authority for the issuing of an ordinary *fieri facias*upon a judgment which is in effect a civil judgment, as we hold these judgments for costs to be, may be found in sections 1318 and other sections immediatly following.

Even the entertainingof serious doubts upon this question is sufficient to require the court, under the rules governing the construction of penal statutes, and those to be applied in favor of personal liberty, to take the view that imprisonment is not authorized, and upon the whole we conclude that this is a correct construction of this statute.

It follows therefore, that the imprisonment of these defendants is unlawful and their discharge will be and is hereby ordered.