The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1883-08-03
Was IIIegaIy

MR EDIToR:-In last weeks issue, under
the above caption, referring TO criticisms
upon the recent liquor prosecution sentences
you quote as authority sustaining them, sec
ton 1887 of the Compiled Laws of 1871, add
ing; 80 ii would seem that the Justice on
ly exercised such discretion in the matter as
he had perfect right to USE
Without having any special reference to
the recent sentences which prompted your
article, in reply thereto, allow me to say that
the section you quote is part of an old
statute passed i'll 1889 and has no reference
TO Justice courts whatever, being a part of
the act providing for the execution of the
death penalty, long since abolished in our
state. But do you say that because il has
been given place in the Compiled Laws by
the several compilers that it is necessarily in
force? II SO, how about section 1894 upon
only the opposite page of the Compiled Laws
of 1871 which reads: THE punishment of
death shall, in every case, be inflicted by
hanging the convict by the neck until he is
dead: and the sentence shall. at the time di-
rected by the warrant, be executed within the
walls of the state prison, or within the en-
closed yard thereof
No one would for moment argue that
this was even in force at the time of the COM
pilation of 1871, or even 1857.
If the section quoted by you applied to
Justice courts at all, ii could only operate up
on laws then in force, and only until the
passage of some subsequent act either di-
recty repeating Il or in conflict with it, and
thereby working repeal as effectually as
though it referred to it in so many words.
An act that Enthusiastically took away that
discretion, would be complete repeal of the
same.
Now let us see if tins has not been re-
peatedly done since 1889. The usual prac-
tice of the legislature in providing penalties
! for violated law, is 10 leave the infection of
fine or imprisonment, or both, to the dis
cretion of the court, but if in single in
stance since 1889, the intention of the law
making power has been to Enthusiastically take
away that discretion, then the law of i $50 is
no longer in force.
A part of section 213S of the Compiled
Laws of 1871, being a part cf the old pro-
| hibitory law of 1855 reads thus: "On the
third and every subsequent conviction he
shall forfeit and pay one hundred dollars and
costs, and shall, in addition to such forfeit
ure, be imprisoned in such jail not less than
three nor more than six months. In section
2139 the same language is found excepting
! the Imprisonment is fixed at six months.
Now can there be any question, Mr.. Ed
itor, that by this act, if it had not been done
before, section 1887 was efiectually repealed?
Certainly the Legislature in the act of 1855
intended to remove that discretion given in
that old statute. In section 2154 of the act
of 1855, are also found these words: "All
laws inconsistent with this act, are hereby
repealed
In the tax law of 1877 the matter of the
judgment embracing both fine and impris-
onment is left discretionary with the court,
but in the law of 1881, while the section pro-
viding penalty, in other respects is almost an
exact copy of 1877, the discretionary power
of the court is taken away to the extent of
emitting either fine or imprisonment, leaving
it only discretionary with the court in the
amount of fine and imprisonment to be i'm
posed, the language being: "Shall be pun
ished by fine not less than twenty-five dol
lars nor more than one hundred dollars and
costs of prosecution, and Imprisonment in
the county Jail not less than ten days nor
more than ninety days, in the discretion of
the court.
Tifanys Criminal Law, a standard au-
thority in this state, on page la, says: "A
magistrate has no power to mitigate pen
atty imposed by particular statute; he has
discretion in this respect only when it is
expressly given him by the statute on which
the conviction is founded
| A. H. HERRON