IMPRISONMENT — HABEAS CORPUS.

[Ashtabula Circuit Court,

March Term, 1900.]

Frazier, Burrows and Baubie; JJ.

#### In re Carrie McAdams.

1. Imprisonment — Indigent Convict — Sec. 1028, Rev. Stat.

Where an indigent convict is sentenced to remain in the county jail until fine and costs are paid, the refusal of the county auditor to order a discharge from imprisonment in the exercise or the power conferred upon him by Sec. 1028, Rev. Stat., does not furnish-a legal ground for discharge of the convict upon *habeas corpus.*In re Calvin B. Moore, 7 Circ. Dec., 575 (14 R. 237), not followed.

2. Sentence — Omission oe “ or Secured to be Paid.”

Where the sentence under Sec. 7327, Rev. Stat., omits the clause “ or secured to be paid,” such omission does not render such sentence void. If such omission is material, it is only an irregularity or informality and furnishes no valid ground for a discharge upon *habeas corpus.*

3. Person Bawfueev Imprisoned — Supposed Injustice.

When a convict is lawfully imprisoned, such convict cannot be discharged on *habeas corpus*on the ground that some supposed oppression or injustice will result from said imprisonment.

*Lawyer & Redmond,*for relator.

*Starkie,*prosecuting attorney, for state.

Burrows, J.

Carrie McAdams was upon conviction for a misdemeanor, sentenced to pay a fine and stand committed to the county jail until the fine and costs were paid.

By *habeas corpus*proceedings she asserts the illegality of her continued imprisonment under said sentence on three grounds :

*781That the county auditor wrongfully refused to discharge her from jail upon proper application therefor.

That the sentence of the court was defective and void.

And that if her application is refused she may be imprisoned indefinitely or for life.

After considering the evidence, arguments of counsel and law applicable to the case we are satisfied that her application for discharge must be denied.

1. The action of the county auditor under Sec. 1028, Rev. Stat., could not render her further imprisonment under a legal sentence wrongful.

It was not in the power of a jailer or judge to let her out of jail, because the auditor might have ordered her released, but, in his discretion, declined to do so.

Counsel in their argument seem to misconceive the scope and purpose of Sec. 1028, Rev. Stat. It does make the county auditor a commissioner of insolvents, to hear applications for discharge preferred by insolvent convicts. The auditor under this section is authorized to exercise his discretion in relieving the public of the unnecessary expense ■of boarding insolvent convicts, when, in his judgment, the public interests will be subserved thereby. He acts upon his own ideas of propriety ; and upon his own knowledge, derived from personal inquiry, common rumor or otherwise. Only one limitation is placed upon his discretion, and that is he must be clearly convinced that the public can gain nothing by prolonging the imprisonment.

The convict cannot insist upon a hearing before the auditor or compel him to investigate the question of present or prospective insolvency.

It is not claimed that the action of the auditor can be judicially reviewed, except by *habeas corpus*proceedings; and only then, by the novel argument that a lawful imprisonment under a legal sentence is rendered unlawful whenever an auditor, in the exercise of his discretion, does not. discharge a convict, and the court hearing the case upon *habeas corpus*is of opinion that the auditor, had he exercised better judgment, would have ordered a discharge.

2. It is also claimed that the sentence is so indefinite and defective as to render imprisonment under it unlawful. Its supposed indefiniteness and defectiveness consist in the omission of the words “ or secured to be paid.”

The statute provides:

Section 7827. “ When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged.’’

The sentence is certainly not indefinite or uncertain, for it orders the relator confined until she pays the fine and costs or is otherwise legally discharged.

The materiality of this omission is based on the assumption that under proper sentence the i elator might have had her liberty by securing the payment of the fine and costs, whereas under this sentence she must pay down or stay in jail.

We are inclined to the opinion that the omission of these words in no wise prejudiced the relator and would not be good ground for reversal of the sentence on error.

*782By Sec. 855, Rev. Stat., the board of county commissioners are given plenary power “ to compound for or release in whole or in part any debt, judgment, fine or amercement due to the county, and for the use thereof * * * they shall enter upon their journal a statement of the facts in the case, and the reasons that governed them in making such release or composition.”

That the fine and costs for which judgment was rendered in this case were “ due the county ” is settled by Sec. 6802, Rev. Stat. While the judgment inform was in favor of the state the law provides that when the money is collected it shall be paid “ into the treasury of the county * * * to the credit of the county general fund.”

Full authority is also given the board of county commissioners by Sec. 7349-4, Rev. Stat., to release on parol any indigent prisoner confined in the jail of the county “ for fine and costs alone ” where there is no workhouse in the county; and take the written promise of the convict to pay in installments or otherwise.

So by Sec. 1028, Rev. Stat., the power of the auditor is to “discharge from imprisonment any person ” confined in jail “ for the nonpayment of any fine or amercement due the county.”

It can scarcely be doubted that these provisions of the statute give the officers named the power to discharge or parol convicts, and to release or compromise the fine and costs in all such cases of imprisonment regardless of the form of the sentence. This must be so; or we must hold that the court by its sentence can take away the power conferred by statute upon these officers, or in other words repeal the statutes of the state.

The real question is whether the alleged defect in the sentence made the sentence absolutely void as to that part directing imprisonment. We have already shown that the defect complained of could not deprive the relator of any right she otherwise would have had; and, therefore, in its legal effect, the sentence was in conformity with the statute. This supposed defect was a mere irregularity or informality and did not render any part of the sentence void.

That the writ of *habeas corpus*cannot be used to correct errors and irregularities in a sentence is too well settled to require discussion.

The statute regulating proceedings in *habeas corpus*provides in Sec. 5729, that the relator “ shall not be discharged by reason of any informality or defect in the process, judgment or order,” where the relator is in custody of an officer “by virtue of the judgment or order of a court of record.”

In Ex Parte Shaw, 7 Ohio St., 81 [70 Am. Dec., 55], the trial court sentenced the prisoner to imprisonment for the period of one year, although the statute provided that three years should be the minimum term of imprisonment. This was held to be an irregularity that did not render the sentence void, and that it could not be reviewed, annulled or impeached upon *habeas corpus.*

3. The third ground for discharge of relator is that the writ ot *habeas corpus*should be used to give liberty to the citizen whenever its use is necessary to prevent patent and flagrant injustice. It is said that otherwise an indigent convict, convicted of a minor offense, involving no moral turpitude, may, at the will and pleasure, or by the malice and caprice of the county auditor and board of county commissioners, be kept in jail during his natural life.

*783It is a sufficient answer to this contention to say that courts are not authorized to intervene by *habeas corpus*to prevent injustice in such case, but on the contrary are forbidden to do so.

The power of courts and judges in *habeas corpus*is clearly defined by statute. By Sections 5741 and 5729 the power to discharge-is limited to cases where the imprisonment is found to be unlawful; and cannot be extended beyond that to meet cases where real or fancied oppression and injustice are inflicted in pursuance of law.

By the law of this state where a fine is imposed as part of the sentence upon conviction for a misdemeanor the payment of fine and costs may be enforced by imprisonment, by order of court or by execution duly issued to collect the same.

The validity of these laws was fully established by the decision of our Supreme Court in Beall, In re, 26 Ohio St., 195. We are therefore compelled to ignore the claim of special hardship in this case, or we ■just make the absurd holding that imprisonment in strict pursuance of law, is unlawful.

This writ was allowed and the case fully heard upon its merits, in deference to the decision in Moore, In re, 7 Circ. Dec., 575 (14 R., 237), where a contrary holding is made. After a careful consideration of the able opinion by which that decision is supported we are unable to assent to the conclusions reached by that court.

We ought perhaps to add that we are unable to appreciate the danger of injustice to indigent convicts under our laws, which counsel for the relator seem to apprehend. The power of discharge, parol, compromise and pardon is conferred upon disinterested officials who are more likely to exercise their discretion too leniently than too harshly in such cases.

At any rate all citizens must submit to the laws of the country where they reside, and, when they commit offenses, cannot justly complain, if upon conviction they are compelled to work out the judgment for fine and costs, or submit to imprisonment for the same until released according to law.

We might also add in justice to the county auditor, that we find no cause to criticise his conduct in this matter.

The application for discharge of relator is refused.