Ex parte Hardy , 68 Ala. 303 ( 1880 )

SOMEBYILLE, J.

The relator, John Hardy, was sentenced to imprisonment in the jail of Dallas County, on May 10th, 1881, for an adjudged contempt of court, under the following state of facts: Under the provisions of sections 3887-3889 of the Code of 1876, a bill had been filed by Ransom & Co. against Hardy and others, on the equity side of the City Court of Selma, praying for a discovery of property, money or effects in the hands of said defendants, which were alleged to be liable to the satisfaction of complainants’ judgments, upon 'which there had been a return of “no property found” by the sheriff. On the trial of the cause, the court found that the defendant John Hardy, who is here the petitioner, had in his possession sundry United States bonds, more than sufficient to satisfy the debts claimed of him,.and ordered him to deliver to the register, within a time fixed by the decree, these bonds, or so many of them as might be necessary to pay these judgments and costs of suit. This the defendant refused to do, alleging an excuse deemed by the court untrue, and therefore insufficient. And for such refusal he wap adjudged guiity of a contempt, and sentenced to imprisonment until be should obey this mandate of the court. A petition for the writ of habeas corpus was presented to the Hon. N. S. Graham, Chancellor of the Eastern Chancery Division of the State, the prayer of which was, on final hearing, refused by him, and thereupon the application is renewed before this court.

Sections 3887-3889 of the Code, under which these proceedings were had, provide as follows :

§ 3887. “In every case where execution may have bees, or hereafter shall be, issued from any court of record in this State, upon which there is a return of “no property” by the proper officer, the plaintiff in such execution, his assignees, executors, or administrators, may file a bill in the chancery court of the chancery district in which such defendant may reside, or in the county in which the judgment or decree was rendered, alleging that execution has been issued and returned as aforesaid,, and that the defendant has property, money, or effects, which are liable to the payment of the debt, and requiring the defendant to answer, under oath, what property he has, the nature thereof, in whose hands it is, and where situated ;~and any number of parties may join as complainants in such bill.”

§ 3888. “Whenever it shall appear to the court, from the answer of 'the defendant, or from other evidence,.that the defendant has money, property or effects, as aforesaid, either in or out of the State, it shall have power to render a decree, requiring the defendant to -pay or deliver to the register of the chancery court, within a time to be fixed by said decree, such money, effects or property, as the court may determine ought to be paid or delivered, for the. payment of such execution; and the court in term time, or the chancellor in vacation, may make all necessary orders for the collection and recovery of such effects or money.”

§3889. “If any such defendant shall fail to comply with the terms of such decree, he shall be guilty of a contempt; and the court, or the chancellor in vacation shall, upon the report of the register to that effect, have the power to imprison the defendant in the county jail until he shall obey the decree; and all transfers or assignments of any property by the defendant, after the filing of sucb bill aginst him, shall be void.”

It is insisted by the petitioner’s counsel that these sections of the Code, which embrace the provisions of an act of the legislature, entitled “An Act to extend the jurisdiction of courts of chancery,” approved March 8, 1871 (Session Acts 1870-71, p. 34), are unconstitutional and void, as being violative of Sec. 21, Art. 1 of the constitution of the State, at least so far as they authorize the imprisonment of a defendant. This section of the Declaration of Rights declares that “no person shall be imprisoned for debt.”

The only question arising for our determination is, whether the sentence to imprisonment for the alleged contempt in this case is, in its essential nature and purposes, an “imprisonment for debt.” If so, the law authorizing it is void, otherwise not.

It can not be denied, that every court is the exclusive judge of a contempt committed in its presence or against its process, and that the exercise of such power by a court of competent jurisdiction can not be revised on error, nor assailed collaterally by resort to a writ of habeas corpus. In Re Cooper, 32 Vt. 253; People v. Sturtevant, 9 N. Y. (5 Seld.) 263; Ex parte Adams, 25 Miss. 883; Ex parte Henry Sam, 51 Ala. 34.

But where there is either a want, or excess of jurisdiction in the committing court, a writ of habeas corpus is then the appropriate remedy for the release of the prisoner.—State v. Towle, 42 N. H. 540; Ex parte Brown, 63 Ala. 187; Ex parte Simmons, 62 Ala. 416; Ex parte Grace, 12 Iowa, 208. The present application is, therefore, the proper method of testing the constitutionality of the .statutes in question, and of thus assailing the jurisdiction of the primary court by virtue of whose order the prisoner is restrained of his liberty.—Code, § 4936; In matter of Blair, 4 Wis. 521.

The ordinary power of courts to punish contempts, as a means of enforcing obedience to their lawful orders and decrees, is in no wise challenged or denied, but is fully recognized in argument by the petitioner’s counsel, as being imperatively necessary to the administration of justice. No doubt can be entertained of their authority to enforce such decrees by process of attachment, without which they would be bereft of all possible power to maintain the majesty of the law as against refractory litigants, and even impotent to preserve their own existence.—Ex parte Walker, 25 Ala. 108; Gates v. McDaniel, 3 Port. 358; Randall v. Pryor, 4 Ohio, 424. It is often said that contempts of court are in the nature of a “special criminal offence,” and the proceedings for their punishment are in the nature of a criminal procedure.—In Re Williamson, 26 Pa. St. 9. However this may be, punishments for contempt have a double aspect: First, To vindicate the dignity of the court from disrespect exhibited to it, or its orders. Secondly, To compel the performance of some order or decree of the court, which it is in the power of the party to perform, and which he, without sufficient excuse, refuses to obey.—In Re Chiles, 22 Wall. 158.

It is urged that a debtor can not be coerced, by the use of this process, into paying an ordinary debt, through the guise of a law which seeks to pronounce the refusal to do so a 'contempt; and that such a procedure is really and logically but another form of “imprisonment for debt.” The solution of this question requires us to construe the meaning and effect of the present constitutional provision, found in the bill of rights, that “no person shall be imprisoned for debt.”—Const. 1875, Art. 1, § 21.

The same guaranty occurred for the first time, in its present form, in the constitution of 1868, being there embodied in identical phraseology.—Const. 1868, Art. 1, § 22 (Decl. Rights). The history of this guaranty against imprisonment for debt in the various constitutions, heretofore adopted in Alabama, and the change in its language, become important in our efforts to ascertain its proper meaning, for it is a sound rule of construction, that such charters of liberty are always to be interpreted, not only in the light of the common law, foutalso by comparison with previously existing constitutions.—Mayor &c. v. Stonewall Ins. Co. 53 Ala. 570. Said Brickell, C. J. in the latter case: “New provisions, having their origin in larger experience, introduced into an amended or revised constitution, are to be construed, and allowed such operation as will secure the purposes for which they were introduced ; and these purposes are to be ascertained from a just consideration of the causes in which they originate.”

In the constitution of 1819, Section 18, Art. 1, which is the clause relating to the imprisonment of debtors, reads as follows: “The person of a debtor, where there is not strong presumption of fraud, sh^ll not be detained in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.” The same language precisely occurred in the constitution of 1861 (Art. 1, § 18), and again in that of 1865 (Art. 1, § 22), and thus constituted a part of the fundamental law of Alabama uninterruptedly for nearly half a century.

. We may premise the consideration of this important question, by saying that it has been, as we think properly, decided, that similar provisions in the several State constitutions against imprisonment for debt apply only to actions based on contracts, express or implied, and that they do not extend to actions originating in tort.—People v. Cotton, 14 Ill. 414; Cotton v. Sharpstein, 14 Wis. 226. Hence it has been held, that a statute allowing an arrest in a civil action for libel does not violate a section in the constitution of North Carolina, which provides that “there shall be no imprisonment for debt except in cases of fraud.”—Moore v. Green, 73 N. C. 394. And again, in like manner, that the constitution of the State-of Georgia, which simply prohibited “imprisonment for debt,” was not violated by imprisonment under bail process in an action of trover. Harris v. Bridges, 57.Ga. 407. It is not to be supposed, that the framers of the constitution intended to-prohibit the legislature from authorizing the remedy of incarceration as a means to coerce the payment of damages- originating ecc delicto, but only of a debt originating ex contractu, Where the property of another than the debtor has been taken by fraud or violence, or is withheld so as to tortiously deprive the true owner of his rights, the act is quasi criminal, and the prohibition as to imprisonment has no application.—Caldwell v. The State, 55 Ala. 133.

The sole object of all rules and maxims of interpretation is, to discover the true intention of statutes and constitutions, and “ whenever that intention can be indubitably ascertained from allowed signs and by admitted means, courts are bound to give it effect, whatever may be their opinion of its wisdom or policy.” Potter’s Dwar. Stat. 178. This intention is, in the first instance, to be collected from the words used, — reading the law according to the natural and obvious-import of its language, without resorting to a subtle and forced construction, either for the purpose of limiting or extending its-operation.—Waller v. Harris 20 Wend. 561. But, as a proper guide to this end, it is frequently of the highest importance to consider, what was the state of the case before the adoption of the given - statute or constitutional clause under investigation, and also wbabwas the mischief or defect, against which it failed to provide. This involves a consideration also of the remedy provided, and the true reason of it. Potter’s Dwar. Stat. 184. This has been well denominated by Lord Coke as “ the very lock and key to set open the windows of the statute.”—2 Inst. 301.

The history and nature of laws authorizing imprisonment for debt and torts at common law, throw no inconsiderable light upon the present question, and ought, for this reason, to be kept in view in our efforts to arrive at a proper conclusion. Cooley’s Const. Lim. 74. And it is accordingly a significant fact, that, in the early history of the common law, while the King, as plaintiff in any action, whether for debt or fort, had an execution against tlie defendant’s property and body, no other person besides him was entitled to process against his body except in actions of trespass vi et armis. This remedy was not then permitted in actions of debt. Harbert’s case, 3 Co. 12, a. The extension of this right to other forms of action was the gradual work of Parliamentary legislation, between the thirteenth and sixteenth centuries. The ancient mandate of the writ of capias ad satisfaciendum required the sheriff to “ take and keep the body [of the defendant] so that he may have it on the return day of the writ at Westminster, to satisfy the plaintiffs of their damages, costs and charges.” And the defendant being taken, remained in custody, until he satisfied the plaintiff’s demand, and was released so soon as he did so.—Tidd’s Prac. 1028-29. At common law, then, the imprisonment of the debtor was simply a process of physical duress by incarceration, by means of which he, or his friends through sympathy for him, were coerced into paying the debt, and possibly also it may have been originally designed to be somewhat punitive in its purposes. In Sturgess v. Crowninshield, 4 Wheat. 122, it was said by Marshall C. J. that “ confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it.”

Erom 1819 up to 1868, a period of nearly fifty years, this method of duress in civil actions except in the matter of preliminary bail, was permitted in this State only in cases of fraud, and the debtor was then forbidden to “be detained in prison after delivering up his estate for the benefit of creditors, in such manner as shall be prescribed by law.”—Const. 1819, Art. 1, § 18; Const. 1861, Art. 1, § 18; Const. 1865, Art. 1, § 22.

The legislative interpretation of these several constitutional provisions, which are identical in language, is of weighty consideration, and receives yet greater emphasis from the cotemporaneoua exposition of the Bar, and the acquiesence of the Bench. Contemporanea expositio est optima et fortissima in lege.—2 Inst. 11; Cooley’s Const. Lim. 81. During this period of time imprisonment for debt was not authorized in Alabama, except in-cases of fraud, and save for a time only on preliminary bail, where the defendant was about to abscond; or had fraudulently conveyed his property, or was about to do so; or where he had money, property or effects liable to satisfy his debts which he fraudulently withheld—Aiken’s Dig. p. 49-50, § § 1-10. Clay’s Dig. 70-75, § § 1-19; Code, 1852, § § 2175-91; Rev. Code, 1867, §§ 2574-92.

This legislation, it is manifest, was intended to impart legal and vital force to’ the excepted cases, engrafted on the debt-imprisonment clause in the State constitutions then existing, permitting the body of the debtor to be taken in arrest in certain specified contingencies. Cases of fraud were understood to be an exception to the general prohibition against such imprisonment, and the rule is. cogent that the designation by mention of one class of exceptions is a refusal to include within the scope of the exception all others. Apart from the operative influence of the exception, cases of fraud would seem clearly to come within the general rule.

Such was the state of the law when the constitution of 1868 was adopted. It was then declared by that instrument, for the first time in the history of the State, that “ no person shall be imprisoned for debt.”—Art. 1, § 22, (Decl. Rights). Nearly eight years later the same guaranty to the liberty of the citizen was secured and re-affirmed, in like words, by the constitution of 1875. Art. 1, § 21, (Decl. Rights). No exception is made in cases of fraud, or otherwise. Legislative caution, indeed, seems to be precise and exact in the intentional exclusion of such cases, which for so long had previously been recognized in theory, and constantly acted on in practice. The constitutional prohibition is general; the guaranty in its words is universal, unless the spirit and reason of the mandate can, by legitimate construction, be made to rescue certain cases from its letter.

Interpreting the two last constitutions in the light of the former three, we can scarcely conclude that absolutely nothing was intendedor effected by this change. “The prior state of the law,” says a learned writer on constitutional law, “will sometimes furnish the clue to the real meaning of an ambiguous provision, and it is especially important to look into it, if the constitution is the successor of another, and in the particular in question essential changes have apparently been made”.—Cooley’s Const. Lim. (4th Ed.) 79-80. Imprisonment for debt had been long prohibited ; but imprisonment for debt in cases of fraud was specially permitted. In these cases alone, so fully described in the details of legislation, was the incarceration of the debtor’s body authorized to compel the payment of the debt. If the deliberate omission of this exception from the two last constitutions is not permitted to operate on the cases formerly construed to come within the exception, then there is no scope for it, the change is nugatory, and the striking out of the exception means nothing.

Accordingly, when the Code of 1876 was adopted and promulgated, all laws contained in previous Codes, authorizing imprisonment for debt, were omitted by the Codifiers, and this omission was ratified by the legislature, thus recognizing their repugnancy to the amended constitution. This, in other words, was an emphatic legislative affirmation of the fact, that the whole system of imprisonment “for debt,” with its machinery of duress, had been abolished and swept away by the constitutions of 1868 and 1875.

But it is argued, that this change was not intended to interfere with the traditional power of chancery courts to punish for contempt all refusals to obey their lawful decrees and orders, and that these tribunals of justice have, from the most ancient period of their existence, exercised the right to force the payment of money, or the delivery or transfer of property, by one suitor to another.—2 Dan. Ch. Pr. 1045-6. This proposition may be conceded to be sound without affecting the case at bar in any respect. The power in question was never exercised by chancery courts, except in those cases where a trust in the property or fund arose between the parties litigant, or some specific interest in it was claimed, or the chattel had such peculiar value and importance that a recovery of damages at law for its detention or conversion was inadequate. Such interference was in the nature of a bill quia timet, and was asserted only on a proper showing that the fund or property was in danger of loss or destruction. No jurisdiction to compel the payment of an ordinary money demand, unconnected with such peculiar equities, ever existed in chancery courts, nor had they the power to compel such payment by punishing the refusal to pay under the guise of a contempt. The act authorizing it is a clear and sweeping innovation upon established equity jurisdiction. 1 Story’s Eq. Jur. §§ 708-710; 2 Story’s Eq. Jur. § § 839-845; Insur. Co. v. Dickinson, 38 Ill. 289.

The case of Wightman v. Wightman, 45 Ill. 167, involved the construction of a clause in the constitution of the State of Illinois similar to our own. The chancery court, on petition of the complainant for a divorce, had made an allowance for alimony, payable in semi-annual instalments. The defendant refused to pay the amounts as ordered and was attached for contempt. He claimed exemption from the process on the ground that it was an imprisonment for debt. A divided court sustained the legality of the proceeding, but placed it upon the ground that alimony, thus decreed to be paid, was not a debt. The court say : “ The amount found by the decree was not originally founded upon a contract, and it was such debts only from which the debtor could claim exemption from imprisonment.” Walker J. dissented from this conclusion, the other two judges concurring in its correctness. The reason of the decision is clearly a strong argument in favor of the position that, where the claim upon which the suit was founded is a debt, there can be no coercion of its payment by a resort to the process of contempt. The Supreme Court of Missouri held in Coughlin v. Ehlert,39 Mo. 285, that an order for the payment of alimony is simply an order for the payment of money, and could not, therefore, be enforced by imprisonment for contempt of court, incurred in refusing to obey a decree directing its payment, because imprisonment for .debt was abolished by the State constitution. And so, in Roberts v. Stoner, 18 Mo. 481, it was decided that a sequestration merely to compel the payment of money could not be enforced for the same reason.

In Ex parte Grace, 12 Iowa, 208, which was an application for habeas corpus, the petitioner sought discharge from a commitment for contempt for refusal to pay over money in his possession which he withheld in disobedience of the order of the District Court. The statute, under which that case arose, was the same, in substance, with that under which these proceedings are had. But the constitution of Iowa did not prohibit imprisonment for debt in eases of fraud. Such cases were made an exception. The attachment was sustained only by construing it to come within the constitutional exception. The court said: “The'failure of the'debtor to surrender his property, liable to execution, to the payment of the judgment, might well be such fraud as that, within the meaning of the constitution, he would forfeit Ms right to claim exemption from imprisonment.” It was, in other words, a fraudulent withholding of his property by the defendant, which was liable to the satisfaction of his debts, a ground of fraud, ’.which always authorized a bail writ or a ca. sa. under our abolished practice. The Iowa statute, however, was declared void on the ground, that it was repugnant to a clause in the constitution of the State, which declared, that “the right of trial by jury shall remain inviolate,” a conclusion in which it is not necessary that we should concur for the purposes of this case. The sound principle was announced, that the legislature could not, by an evasion of the constitution, render that which toas in its essence a suit at law, a proceeding to punish for contempt. See also Blair's Case, 4 Wis. 531.

The law now under consideration was originally entitled •“ An act to extend the jimsdiction of courts of chancery.” Acts 1870-71 p. 34. The act imports on its face the fact, that the jurisdiction conferred was one not before possessed. It brought, as before observed, a new subjoct matter within the range of chancery jurisdiction. Its clear design was to provide a machinery for compelling the payment of an ordinary debt by the defendant, when he fraudulently withholds property, money or effects, which are not exempted from execution at law. The purpose of the law is to force the payment of the debt which is the basis of the suit. The defendant is attached and imprisoned, because he does not deliver the money or' property, in order to pay the debt. If the debt is paid, the prisoner is released. If lie does not deliver the property or money to the officer of the court, for the ultimate satisfaction of the complainant’s debt, his imprison-men-t is "continued.. Th© indirection- employed* ®a® not aicl the matter,, for the express prohibitioni ®f a¡® end i» also ais implied prohibition oí all an-d every means- designed and msed solely to reach that end.. What can not he done dweetly, is also prohibited to-be- done indirectly. The payment o-r delivery to the- register i® only for the- benefit of the complainant.. Characterizing, the- refusal to- pay or deliver a® a contempt,, does, not make it such,, if it appears,,!» its essence- and nature,, to- be- otherwise,, and is-merely a new legislative* creation to accomplish by evasion,, an «sní&wfid or mscoastitu;-tional end,

"We are o-f opinio» that th© law,, in its trae- ©sse-nee and purposes, is one authorizing,, by indirection, imprisonment for debt.—In Re Blair, 4 Wis. 521; Cotton v. Sharpstein, 14 Wis. 22_ .

_ This- ©on-elusion is- corroborated- by another view of th© ease-. So long as the body of the debtor was authorized to> be taken in arrest in this- State,, the right was-.earefutly regulated by law. It was- permitted’ only in cases of fraud. The creditor was compelled to- make oath to Ms debt, and &lso< fco> the-fact of some fraudulent practice on the part of th© debtor. H© was also required to give security for ©osts. The- right of bail was carefully secured* amd the- debtor eotriol be discharged by taking the-in solvent oath and purging himself of fraud.. He was also entitled' to a, trial by jury, which is, perhaps, at last the- great sheet-anchor ©f Anglce-Saxora liberty.—Rev. Code §§ 2574-2592.

If the law in question is permitted to stand, a result rather startling, of necessity, must follow. A new and unexplored field of jurisdiction is- extended to courts of chancery, not heretofore- opened to them.. The old power to irsprisoo for debt is-re-established under the guise of a new form. ATI legislative safeguards- against its: improvident abuse will have been swept away. No oath is required to any tangible aet of fraud by the debtor. No- security for costs- is required. No method is provided for the rendition of the debtor’s schedule of effects, nor for settling his claim of exemptions. Th© valuable privilege of bail is: denied him, and he is deprived of the right of trial by .fury.

We can not suppose that this was intended to follow by the framers of the constitution, and the law-making powey that adopted the present Code. If so, the rights and liberties of the citizen have been abridged, and not enlarged by the amendment of the clause under consideration. The debtor is -in a worse condition under the present constitution-, with its general prohibition that “ no person shall be imprisoned for debt,” than he was under the former constitutions providing expressly that there might, in some cases, be such imprisonment. Annulling' the exception thus operates rather to diminish than increase the scope of the constitutional rule, and imprisonment for debt is not mitigated, but becomes more rigorous in a new phase, and harsher under the Protean form of a new name. Denominated a contempt, it is virtually unregulated by any law, in many essential details, save by the conscience of the chancellor.

We are unwilling to adopt this conclusion, and to believe that such results were intended. To do so, would be to ignore a cardinal principle of construction, which requires that constitutional provisions for the protection of life, liberty and property, are to be largely and liberally construed in favor óf the citizen—Dorman v. State, 34 Ala. 216.

Under these views, we are constrained to conclude, that so much of section 3889 of the Code of 1876, as authorizes the imprisonment of a debtor in the county Jail for a refusal to pay or deliver to the register his money, effects or property lor the payment of a complainant’s judgment, is im violation, of section 21, Art. 1 of the constitution, and therefore null and void. An order committing a defendant for contempt for such refusal is an imprisonment for debt, and as such is prohibited by said section of the Declaration of Bights. Whether the provisions of this law, in its present shape, are so separable as to authorize such imprisonment, where the complainant’s judgment is founded on tort, while at the same time it is void as applicable to those founded on contract, is a question not now before us, and which we are not called on to decide.

The writ of habeas corpus and certiorari will be awarded by this court to bring the petitioner before us, together with the proceedings had before the chancellor, unless on another application renewed before him, he shall order the petitioner to be discharged from custody.—Ex parte Moore 62 Ala. 471.

•STONE, <J. ■concurring.