Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-09-27
''- Reported for the Daily State Sentinel
Case of Maria. L cath herman-D ecision
of Justice Todd.
MARION COUNTY, INDIANA.
Maria I,eafharr,,an "A EepoaleN a


Jno. E. Foudray, Sheriff of M. C.}
Proceedings on writ of Habeas Corpus,
September 18, 1856.
Maria Leatherman, "a fcmale), the appli-
cant, was this day brought before me on a
writ Of Habeas Corpus alleging that she was
Illegally imprisoned in the Jail of Marion
county, Indiana. The sheriff. return to the
writ shows that she was in his custody, by
virtue of five warrants of commitment, issued
by James MeCready, Mayor of the City of
Indianapolis, for the violation of the act of
the 18th February, 1855, -eDtislcd, "a An rct
to prohibit the manufacture and sale of spir-
ituous and intoxicating liquors." The provi-
sion of the Revised Code of 1852, Vol. 2,
page 500, chap 6, sec. 10, prohibits the i'm
prisonment of females This provision is a
general one, applicable to all cases of misle-
naeasaors tried before justices of the peace, or
those having like authority. am not aware
of any act repeating it. There is no provi-
sion in the act of February 16 1855, express
ing or authorizing such Imprisonment; and
it is in virtue of the provision OF this act, that
this imprisonment is attempted to be justi-
fed. To authorize it, resort is had to inter-
probation and construction. This interpreta-
ton, or construction cannot be sustained, for
several reasons, that are manifest. The first
presented, is, that such construction is in di
rect violation of the express provision of the
act of 1852.
The second is, that such Interpretation is
contrary to the settled doctrine of constituting
penal statutes, strictly. And thirdly, that
| while the provision of the act Of 1852 is in
force, such Interpretation would give the pro-
vision Of the act of 1856, tho effect of spe-
cial statutory enactrrent. The Legislature
has not the power thus to lcgisla.o specially,
even in erpreSs terms, much less, can that
body give to a Court the authority to exer-
else, by Judicial Interpretation, power which
cannot be exercised, though such power was
sought to be given in express terms. IL is
at least doubtful whether the legislature ever
intended that this act of 1855, should be thus
interpreted. If the Legislature had such in
tention it-is not made manifest
| The act of 1852 exempts all females from
Imprisonment in cases Of misdemeanors, and
this act is in full force. The act of 1855 has
no provision, repeating this exemption. The
act OF 1852 contains the general law on this
subject. The act of 1856, if il contained a
special provision for the imprisonment of fe-
males, such provision would be unconstitu-
tional-but if it contains no such special pro-
vision, how can a Justice of the Peace, or any
other officer with concurrent jurisdiction, or
any Court, so construe its provisions, by an
depreciation, as to make it special law for the
imprisonment of females, in certain class of
cases of misdemeanor-when the general
law exempts all without exception? If the
Legislature is prohibited from exercising such
4 haf hax- r,r
only the power of Justice of tho Peace,
rest, when attempting to enforce such power
by the mere process of Judicial Inte1pretat6s1g
1t is very clear that when there is general
provision by Statute, such as that contained
in the act of 1852, exempting females, in all
cases of misdemeanors, from imprisonment,
| that the Legislature has no power 10 autho-
rize punishment by Imprisonment, in such
cases, by special enactment, much less has the
Justice of the Peace, or one Of equal jurisdic-
ton, the power to authorize such imPrison-
ment by Judicial interpretation, and when the
effect of that Interpretation is (partially al
least) to nullily the provisions of general
statute, by giving force and validity to the
provisions of the subsequent act, that must
loperate as a special enactment, or not operate
at all.
The general law is in full force-it il
neither revised, amended, or repealed. The
general law and the special provision canno
both operate at the same time. The one o.
the other must be the rule of action. Tht
constitutionality and validity of the act o
\ ,52 has not been questioned, and its provi
sions must govern this case, as it has no
been amended or repealed. The prisoner i
discharged. LEVI L. TODD, Justice.