Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-04-21
THE JEWISH SABBATH.
CASE OF OSCAR MARX DECIDED By THE
SUPREME COURT or APPEALS
This Writ Of Habsas Corpus-Jurisdistioi
Of Magistrates to Commit for Nom
Payment Of Pines, 20.

Marx, as follows:
In December, 1883, a judgment for fine
OF two dollars and costs was rendered by
stephen West, Justice OF the peace OF war
wick county, against the petitioner, oscar
Mxrx, Jew, for unIawfuily carrying on nis
business as q retail merchant on saDoatn
day. Upon the rendition OF the Judgment
the petitioner expressed to the Justice de-
termination not to pay it, whcreupon he was
committed BY the Justice 10 the jail OF the
said county. The mihimtts commands the
isrler to receive the said Marx into bis JAIL,
card there him safely keep TOR ne term OF
one qeGr, unless the said sum shall be sooner
paid, or until be otherwise discharged by
due course Of law"
Yhe petitioner thereupon by his counsel
applied to this court for writ OF hd6edS cor.
nus, which was awarded, and to which re-
turn has been made, setting forth In detail
the facts just mentioned.
THE GROUNDS.
He insists that be IS illegally restrained
OF his liberty on three grounds: ~ Be
cause the justice by whom the judgment
was rendered had no jurisdiction TO proceed
against bin, and therefore that the proceed
ings were cordB non JUDGE and void; ~ be-
cause the conviction - not warranted by the
evidence, and 90 because even II the Justice
had jurisdiction OF the case the commitment
| is void, because It trauscends the power OF
the justice.
1. As TO THE QUESTION OF JURISDICTION.
Section 1893 OF the Code provides that IL
a person on Sabbath day be found laboriDg
NJ any trade or calling, or employ his ap-
prentiees or servants IN labor or other busi-
ness, except in household or other work OF
necessity or charity, be shall forfeit two dol
| lars for each offence" every day any servant
! or apprentice Is so employed constituting y
| distinct offence. The section immediately
| following, however, excerpts from the opera
ten Of ,ike law "aBY person who cepsclen-
tieusty believes that the seventh day OF the
week ought TO be observed rs sabbath and
actually reirains from all secular business
| and labor on that day; provided no does not
| compel an apprentice or servant not OF MS
belief TO do secular work or business on a
Sunday. and does not on that day disturb
any other person."
The word "iorieit" here used is synony-
nous with fine. Section 745. Andthe ques-
| ton, therefore, Ia this connection Is, How IS
such fse To be enforced or collected, II 1t Is
collectable by judicial process at alp
| Section 712 enacts that "where any statute
imposes a fine, unless it be otherwise exc
pressly provided or would be inconsistent
| with the manifest intention OF the General
Assembly, il shall be 10 the Commonwealth,
and recoverable by pEesentmcnt. indict-
ment or information. Where fine With
| ont corporal punishment Is prescribed the
same NAV be recovered, II limited to an
amount not exceeding twenty dollars, BY
warrant, and If not so limited, by action OF
debt, or action on the ease, or by motion.
| Phe proceeding shall be in the name OF the
| Commonwealth"
II ia also provided by section 1889, which
| relates to " warrants for small claims" that
anv clam to q fine not exceeding twenty
| dollars. which would be recoverable by an
action st law, shall DC cognizable By Justice,
the proceeding to be By civil warrant, as In
the case CT other small claims enumerated IN
| the same section. And bv section III il is
enacted that "when any fine Is imposed by
Justice, he NAV commit the defendant to
iail until the fine and costs are paid. or until
| the costs are paid where there is no fine, bit
| ne shall not iSsU5 any creation therefor"
And this provision must be construed As
giving the only meaps for carrying INTO et-
feet Judgment OF justice for fine in any
case, civil or criminal. ln other words,
what would seem to be an implied authOri-
ty TO issue a il. IA. upon iudg-
| uent for a fine under section 294S,
claims. is controlled by the express prohibi-
ton contained in section III, which applies
to all cases in which any fine is imposed by
a Justice, term "impose" applying "a
we'll to the rendition OF a judgment for a
fine in a civil as IN 8 criminal. case. by the
act Of March II. 1873, Acts 1918, p. 31I,)
Justice was empowered in certain cases to
issue an execution OF f. fl. or copiaS pro
fine for fines imposed by him, but that pro-
| vision has been repealed.
It j. thus apparent that not only Is the
| statutory fine prescribed for violation OF
the sabbath recoverable before justice, but
there are in fact two remedies FOR such re-
covery. The first is by warrant OF arrest, or
| a criminal prosecution; for the rule at COM
mon Law ia that where a statute gives JUS
tice jurisdiction over an offence, II impliedly
| gives him power TO aDprehend any person
charged with such offence. Bae. Abr. Tit.
Justices Of Peace (E) 3. And the second is
by civil warrant. The latter remedy was
pursued in the present case, the proceeding
| having been commenced By summons, in
the form OF an ordinary warrant in civil
cases, aud not by warrant Of arrest; 30 that
much OF the argument, as to the validity oil
a conviction IN any criminal case where the
right Of a jury trial is denied the defendant,
is not applicable 10 the case before us.
The warrant also set forth with technical
precision the charge upon which the pros
ceedng was based; that is to say, that the
defendant, on a certain Sabbath day, did Ia
Dor 1t bis trade and calling, IS a retail mer.
chant etc., which was neither
work OF necessity nor charity, etc.,
thus following the rule OF pleading statute,
which is that IL there Is an exception in the
euacting clause the party pleading must
49, 4. Il not xCi q Y
ception; but il there be an exception in z
subsequent clause or section, or 4 subsequent
statute, that is matter OF defence and Is TO NJ
shown by the other party. l Chit II. 223
l Bish. Grim. Pr, Sec S78. No point, how
ever, Is made upon the form OF the warrant
TIE WRIT OF HABEAs CORPUS NOT WRIT OF
ERROR.
.. The case, therefore, was not only within
the jurisdiction OF the justice, but 1t wa
brought and conducted IN strict conformity
with the established rules OF procedure IL
such cases, and hence the petitioners second
ground Of obieelon- Bamely, that the con-
yicton Is not warranted by the evidence
cannot be maintained. The writ OF hdbed
corpus Is not writ OF error IL deals no
with mere errors or Irregularities. but onli
with such radical defects "a render q pro
ceediag absolutely void. 1t brings up th'
body OF the prisoner with the cause OF hi
commitment, and the court can inquire int
the sufiiciency Of that cause. But Il he b'
detained in prison by virtue OF iudgmen
Of court OF competent Jurisdiction, tina
Judgment is ia itself sufficient cause. Al
Imprisonment under judgment cannot b
unlawful ualess that judgment be an absolute
nullity, and IL is not a nullity il the court Of
magistrate which rendered it had iurisdic
ton TO render 1t. E1-pdrte Watkins, 3 Pet
1913; e1-pGrte Rollins, so Va. 3l4.
The rule is very clearly stated in er part
Parks, % U. s. Is, as follows: When tn
prisoner is in execution upon conviction
the writ ought not TO be issued, or. IL issued
the prisoner should at once be reminded, II
the court below had jurisdiction OF th
offence. and did no act beyond the power
conferred upon it. The court will look init
the proceedings so far as to determine thi
question. II 1t finds that the court below ha
transcended its powers ii will grant tn
writ and discharge the prisoner, even aitc
Judgment. But il the court bad jurisdiction
and power to convict and sentence the VIII
cannot issue to correct a mere error" citiul
er parte Watkins, supra eI pdrte hearney
! viz 90 ala